High Court

Abstract

Keywords

Loake was convicted of harassment contrary to s. 2 of the Protection from Harassment Act 1997 (PFHA) in October 2015. The harassment consisted of a very large number of text messages sent to her husband from whom she was separated. Section 2(1) of the PFHA defines harassment and the offence of harassment in the following terms:

1. Prohibition of harassment

(1) A person must not pursue a course of conduct—

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other

(2) For the purposes of this section…the person whose course of conduct is in question ought to know that it amounts to…harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other

2. Offence of harassment

(1) A person who pursues a course of conduct in breach of section 1(1)…is guilty of an offence.

The judge imposed a restraining order and a fine of £775. Loake appealed against the conviction and sentence on grounds that she was not guilty of the offence of harassment by reason of insanity. Loake intended to rely on psychiatric evidence. As a note, there was no suggestion that Loake was not fit to plead or to stand trial. Prior to the evidence being heard, the court invited submissions from counsel on the question whether the defence of insanity was available for such an offence.

The prosecution, relying on R v Colohan [2001] EWCA Crim 1251 and Director of Public Prosecutions v Harper [1997] 1 WLR 1406, submitted that the offence under s. 2(1) of the PFHA required no proof of mens rea that could be negatived by a defence of insanity and that the assessment of whether the appellant ought to have known that her actions amounted to harassment was wholly objective. The prosecution contended that the defence was not available in answer to the charge (at [6]).

The appellant, citing the authority of Blackstone’s Criminal Practice 2017 at A3.23 et seq (in particular [A3.32]), argued that the M’Naghten Rules [1843] 8 E.R. 718 apply not only to the mens rea required for an offence but also to the actus reus (at [7]).

In an ex tempore judgment, the judge ruled that as a matter of law, the defence of insanity was not available for the offence of harassment. The court found that a prosecution could succeed on proof that: (a) the defendant did the acts complained of and (b) they amounted to harassment, objectively judged (R v Colohan [2001] EWCA Crim 1251, [17–21]). Whether the accused thought that the act amounted to harassment was irrelevant (at [64]), the prosecution were not required to establish mens rea. Following DPP v Harper [1997] 1 WLR 1406, 1409B-E per McCowan LJ, the defence of insanity had no relevance to a charge that does not require proof of mens rea (at [6.5]). Loake’s alleged insanity was not available as a defence to the offence under s. 2(1) PFHA. The court noted that the psychiatric evidence may be material to the consideration of the appeal against sentence (at [6.6]).

Loake made an application for the case to be stated on 7 September 2016. The recorder formulated the question for consideration as:

Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to section 2(1) PFHA?

The court accepted medical evidence existed, which might substantiate the defence of insanity, if the defence was available on a charge under s. 2 of the PFHA. Both parties agreed resolution of the matter in the appellant’s favour would require remittance to the Crown Court for a re-determination of the appeal under s. 28A(3)(b) of the Senior Courts Act 1981.

Held, allowing the appeal and remitting the case back to the Crown Court, the M’Naghten Rules are of general application, and accordingly they apply to the offence of harassment under s. 2 of the PFHA (at [61]). M’Naghten makes clear that every person is presumed to be sane, and the burden of proof lies on the defendant to establish on a balance of probabilities that he or she falls within the Rules. If the defence is to be relied upon, psychiatric evidence of great cogency, specifically addressing the individual limbs of the ‘M’Naghten Rules’, is required (at [63]).

Commentary

M’Naghten, although dating back to 1843, is still applied in England and Wales in cases where sanity is an issue. It is a common law defence, with Crown Court disposal via ‘special verdict’ regulated by statute. Section 11(1) Powers of Criminal Courts (Sentencing) Act 2000 and s. 37(3) Mental Health Act 1983 allow the Magistrates’ Courts to make an order in respect of an either way/summary offence without a trial, provided the court is satisfied that the defendant did the act or made the omission with which he or she is charged. In this context, there is no statutory procedure for a special verdict, therefore a plea of insanity leads to complete acquittal (Divisional Court in Horseferry Road Magistrates’ Court exports K [1997] QB 23; R (Singh) v Stratford Magistrates’ Court [2007] 4 All ER 407, however in cases such as this, Magistrates may impose a hospital order as per s. 37(3) of the Mental Health Act 1983.

M’Naghten (at [719]) requires that:

…to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

Lord Diplock (R v Sullivan [1984] AC 156 pp. 170–171) determined the questions posed in M’Naghten ‘…provide a comprehensive definition of the various matters which must be proved by the accused in order to establish that he was insane at the time of his alleged offence’. ‘Nature and quality’ in this context refers to the physical nature and quality of the act and not to its moral or legal aspect (R v Codere [1917] 12 Cr App R 21). Similarly, establishing a defendant did not know it ‘was wrong’ refers solely to knowledge of legal not moral wrongdoing (R v Windle [1952] QB 826; R v Johnson [2007] EWCA Crim 1978). The burden of proof lies with the defendant on the balance of probabilities (R v Smith (Oliver) 6 Cr App R 19; R v Carr-Briant [1943] KB 607; Sodeman v The King [1936] ALR 156).

DPP v Harper [1997] 1 WR 1406 restricted the use of M’Naghten in the Magistrates’ Court by ruling the insanity defence only applicable to crimes requiring mens rea or where mens rea is in issue. According to Blackstone’s Criminal Practice 2018, this was a practical limitation on the scope of the insanity defence in summary/either way offences: ‘it is, however open to criticism on the grounds that…the defence of insanity goes beyond the mere denial of mens rea’ (at [A3.24]), i.e. it represents a denial of voluntariness (automatism) or a situation in which the accused does not know their actions are wrong. The Law Commission on examination of insanity agreed the ruling in Harper was incorrect, recognising the anomaly that if a person is charged with an offence where there is no mental element, then s/he can plead insanity if the case is tried in the Crown Court but not if it is tried in the Magistrates’ Courts (Law Commission’s Discussion Paper 2013 Criminal Liability: Insanity and Automatism). In actuality, it is not always practicable to identify the singular elements of an offence that constitute actus reus or mens rea, particularly given the numerous and disparate nature of modern criminal activity (Young [2002] EWHC 548 (Admin), [2002] 2 Cr App R 12 at [12]). Of late, there has been an increase in offences that amalgamate the mental element into the actus reus (see B [2012] EWCA Crim 770, [2013] 1 WLR 499); this presents obvious difficulties in cases when a defendant raises a plea of not guilty by reason of insanity. Case law antecedent to Loake attests to this difficulty but left the matter unresolved (Law Com, Insanity and Automatism; A Discussion Paper, July 2013 at [1.32]).

Succinctly summarised in Smith and Hogan’s Criminal Law (14th Edn, 2015 at [11.2.2.4]) the premise that insanity is based on the absence of mens rea: ‘…may be true where D asserts that he did not know the nature and quality of his act, but it is not true where he asserts that he did not know that the act was wrong’. For example, in instances where a defendant suffers severe mental dysfunction, such as, persecutory delusions and/or hallucinations, full mens rea may have been present, yet the resulting defect of reason could render the accused unable to know what he was doing was wrong. The resulting ‘false dichotomy’ between intention and insanity is clearly unworkable (Moore v The Queen [2001] UKPC 4, [14]). The court’s findings in Loake support this proposition.

Applying this argument to cases relating to the PFHA may have far-reaching consequences. The PFHA was brought into force on 16 June 1997 and was amended by the Protection of Freedoms Act 2012 creating the new specific offences of harassment and stalking. A prosecution under s. 2 requires proof of harassment. Harassment is not specifically defined in s. 7(2) of the PFHA, although there must be evidence to prove the conduct was targeted at an individual, was calculated to alarm or cause distress and was oppressive and unreasonable (Plavelil v Director of Public Prosecutions [2014] EWHC 736 (Admin)). There is significant overlap between this offence and that of controlling or coercive behaviour in an intimate or family relationship, as per s. 76 of the Serious Crime Act 2015. Although the offences are elementarily very similar, in the latter, it is for the prosecution to prove that there was intent to control or coerce an individual in an ongoing intimate relationship. The consequences of estrangement often include psychiatric sequelae. The applicability of such mental dysfunction in the context of insanity remains to be seen. In anticipation of this wider interpretation of the defence of insanity, the court in Loake added the caveat that:

Although in this judgment we have held that the M’Naghten Rules apply to the offence of harassment contrary to s. 2 of the PFHA just as they do to all other criminal offences, this should not be regarded as any encouragement to frequent recourse to a plea of insanity. (at [63])

There are three statutory defences to s. 2 PFHA offences: that the course of conduct was pursued for the purpose of preventing or detecting crime (this defence requires proof of rational behaviour, Hayes v Willoughby [2013] UKSC 17); that the alleged behaviour arose under any enactment or rule of law or was necessary to comply with any condition or requirement imposed by any person under any enactment; or that in the circumstances the pursuit of the course of conduct was reasonable (as to what amounts to reasonable behaviour will be a matter for the courts). Loake suggests a potential fourth common law option.

Despite the finding in Loake suggesting a more progressive interpretation of insanity, what is in no doubt is the time has come to modernise the insanity defence. Despite English Judges giving the phraseology of M’Naghten a more modern interpretation in practice (Judicial Studies Board, Crown Court Bench Book (March 2010) p. 327), the terms ‘insanity’ and ‘disease of the mind’ are archaic legal terms inapplicable to modern medical practice. There have been numerous calls for modification of M’Naghten to align modern legal and psychiatric habitude. If medical and judicial constructs remain incongruent, difficulties will arise at the interface of the two specialisms.

Elizabeth Stuart-Cole