Wednesday Law Report: Defence not available if unfit to plead

12 May 1999

Regina v Antoine

Court of Appeal, Criminal Division (Lord Bingham of Cornhill, Chief Justice, Mr Justice McKinnon and Mrs Justice Bracewell) 29 April 1999

IT WAS not open to a defendant who had been found unfit to plead to a charge of murder to seek to rely, on a determination under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 whether he had done the act charged against him as murder, on the defence of diminished responsibility.

The Court of Appeal dismissed the appeal of Pierre Antoine against a determination that under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 that he had done the act charged against him as murder.

The appellant and his co- accused were charged with murder and, by an unopposed amendment to the indictment, with manslaughter. The co- accused's plea of not guilty to murder but guilty to manslaughter on the ground of diminished responsibility was accepted by the Crown.

When the appellant appeared in the Crown Court it was contended on his behalf that he was unfit to be tried because of mental disability, and the judge directed the jury so to find. The court then embarked on a determination under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 as to whether the appellant had done the act or made the omission charged against him as an offence.

On behalf of the appellant a double-barrelled submission was made to the judge:

(i) that for the purposes of the determination it was incumbent on the Crown to establish all the elements of the offence of murder charged against the appellant, i.e. both the actus reus and the mens rea; and

(ii) that on the determination it was

open to the appellant to raise the issue of and seek to prove diminished responsibility in answer to the murder charge.

The judge, directing himself in accordance with R v Egan [1998] 1 Cr App R 121, upheld the first submission, but rejected the second, holding, inter alia, that section 2 of the Homicide Act, which had introduced the defence of diminished responsibility, did not apply in the present situation.

The jury returned a verdict that they were satisfied that the appellant had done the act of murder charged against him. The appellant appealed, challenging the judge's ruling on diminished responsibility.

David Spens QC and Gareth Branston (Kaim Todner) for the appellant; James Curtis QC and Nicholas Hilliard (Crown Prosecution Service) for the Crown.

Lord Bingham CJ said that in Attorney General's Reference (No 3 of 1998) [1999] (unreported) the Court of Appeal, which was in that case concerned with insanity rather than fitness to plead, had nevertheless expressed very clear doubts about the correctness of the decision in Egan, and the court shared those doubts.

If Parliament in enacting section 4A(2) of the 1964 Act had intended to require the prosecution, when proving that the defendant had done the act or made the omission charged against him as the offence, to establish all the ingredients of the offence including the mens rea, it was strange that language was borrowed, almost unaltered, from section 2(1) of the Trial of Lunatics Act 1883, which did not have that effect.

The issue before the jury on the determination in the present case was whether they were satisfied that the appellant had done the act charged against him as the offence of murder. Section 2 of the Homicide Act 1957 provided for reduction of the offence of murder and mitigation of the penalty where the defendant, although not fully insane at the time of the alleged offence, was not fully responsible. The section applied only where the case against the defendant established all the ingredients of murder, both as to actus reus and mens rea.

Therefore, since the only question arising under section 4A(2) was whether the jury was satisfied that the defendant had done the act charged against him as murder, no question of diminished responsibility could arise. The judge had accordingly been correct in ruling that it was not open to the appellant, in putting the case for the defence under section 4A(2), to rely on section 2 of the 1957 Act.