Loake v CPS  EWHC 2855 (Admin)
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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 HB, 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