Loake v CPS  EWHC 2855 (Admin)
"For the purposes of this appeal we shall assume that the Appellant pursued a course of conduct which objectively amounted to harassment. The real issue is the question whether the defence of insanity is available on a charge of harassment contrary to Section 2(1) of the PFHA given the terms of Section 1(1)(b). ... It follows that we answer 'Yes' to the question posed in the stated case: 'Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to Section 2(1) PFHA?' ... Finally, we add this. Although in this judgment we have held that the M'Naghten Rules apply to the offence of harassment contrary to Section 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. M'Naghten's Case makes clear that every person is presumed to be sane. The burden lies on a defendant to prove on a balance of probabilities that he or she falls within the M'Naghten Rules. The offences in the PFHA generally require a "course of conduct", that is, conduct on more than one occasion (see Section 7). In practice, prosecutions are generally brought in respect of conduct repeated many times over a significant period. We do not anticipate that someone who has engaged in such conduct will readily be able to show that throughout that period they did not know the nature and quality of their act, or that throughout that time they did not know what they were doing was wrong, in the necessary sense. If the defence is to be relied upon, it will require psychiatric evidence of great cogency addressing the specific questions contained in the M'Naghten Rules. In the Crown Court, by Section 1 of the 1991 Act, the special verdict may not be returned except on the evidence of two registered medical practitioners. In the absence of cogent psychiatric evidence about the specific relevant aspects of a defendant's mental state throughout his alleged course of conduct, we would expect magistrates and judges to deal robustly with claimed defences of insanity."
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Loake v Crown Prosecution Service
2017 Oct 25; Nov 16Irwin LJ, Julian Knowles J
Crime— Harassment— Insanity— Whether insanity defence available on charge of harassment— Protection from Harassment Act 1997 (c 40) (as amended by Serious Organised Crime and Police Act 2005 (c 15), s 125(2) and Protection of Freedoms Act 2012 (c 9), Sch 9(11), para 143(2)), ss 1, 2
The defence of insanity under the MʻNaghten Rules is available to a defendant charged with harassment contrary to section 2 of the Protection from Harassment Act 1997. Such a defence is not precluded by the objective test of harassment in section 1 of the 1997 Act, namely whether a reasonable person in possession of the same information would think the course of conduct amounted to harassment. Criminal liability for the offence does not turn solely on the answer to that question. Even if a person commits conduct which viewed objectively amounts to harassment, he will not be guilty if he does not know the nature and quality of his act, or does not know that what he is doing is wrong, in the sense of the conduct being contrary to law. However, since the offences in the 1997 Act generally require a “course of conduct”, and in practice prosecutions are generally brought in respect of conduct repeated many times over a significant period, someone who has engaged in such conduct will not readily be able to show that throughout that period he did not know the nature and quality of his act, or that throughout that time he did not know what he was doing was wrong, in the necessary sense. If the defence is to be relied upon, it will require psychiatric evidence of great cogency addressing the specific questions contained in the MʻNaghten Rules (paras 54, 55, 56, 61, 63).
MʻNaghten’s Case (1843) 10 Cl & Fin 200, HL(E) applied.
Director of Public Prosecutions v H  1 WLR 1406Not on Bailii, DC and R v Horseferry Road Magistrates’ Court, Ex p K  QB 23Not on Bailii, DC not followed.
Where, therefore, the defendant was convicted in the magistrates’ court of harassment contrary to section 2 of the 1997 Act, and the Crown Court dismissed her appeal after rejecting her defence of insanity as not being available for such an offence, and the defendant appealed by way of case stated—
Held, appeal allowed. The Crown Court had erred in law in holding that the defence of insanity was not available for an offence of harassment and the case would accordingly be remitted to the court for redetermination (para 62).
Sam Thomas (instructed directly) for the defendant.
Martyn Bowyer (instructed by Crown Prosecution Service) for the prosecution.
Reported by: Sally Dobson, Barrister