R v Wells  EWCA Crim 2,  MHLO 5
"In each appeal and application before the court, the defendant has been found unfit to plead: that is to say, based on medical evidence, the court has found that one or more of the following criteria is satisfied namely that he or she does not have the ability to plead to the indictment, to understand the course of the proceedings, to instruct a lawyer, to challenge a juror, to understand the evidence. ... Where a defendant's disability impacts on his/her ability to take part in a trial but he/she is not otherwise affected by a psychiatric condition such as renders what is said in interview unreliable (whether or not the delusional traits are apparent on the face of the interview), there is no reason why the jury should not hear them albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remains relevant to consider all the circumstances."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
CRIME — Plea — Fitness to plead — Determination of whether defendant did act or made omission charged — Whether what defendant said in interview admissible — Criminal Procedure (Insanity) Act 1964, ss 4, 4A (as substituted by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s 2)
Regina v Wells
Regina v Masud
Regina v Hone
Regina v Kail
B;  WLR (D) 25
CA: Sir Brian Leveson P, Openshaw, Dove JJ: 20 January 2015
Where a defendant’s disability impacted on his ability to take part in a trial but he was not otherwise affected by a psychiatric condition such as rendered what was said in interview unreliable, there was no reason why the jury should not hear such evidence albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remained relevant to consider all the circumstances.
The Court of Appeal, Criminal Division, so held when (1) granting leave but dismissing the appeal of Marc Martin Wells against a finding, having been found unfit to plead, that he had committed the act charged against him, namely murder, following which, on 21 March 2014, in the Crown Court at Winchester, Judge Cutler had made a hospital order with a restriction order unlimited in time; (2) refusing the application by Sarfraz Masud for leave to appeal against a finding, having been found unfit to plead, that he had committed the acts charged against him, namely sexual assault and common assault, following which, on 17 July 2014 in the Crown Court at Woolwich, Judge Lees had made a hospital order; (3) dismissing the appeal of Susan Hone against a finding, having been found unfit to plead, that she had committed the act charged against her, namely one count of rape and two counts of sexual assault, following which, on 5 March 2014 in the Crown Court at Woolwich, Judge Tomlinson QC had sentenced her to concurrent supervision orders under Schedule 1A to the Criminal Procedure (Insanity) Act 1964; and (4) refusing the application of Tony Nicholas Alan Kail for leave to appeal against a finding, having been found unfit to plead, that he had committed the act charged against him, namely, sexual assault, following which, on 14 August 2014 in the Crown Court at Harrow, Judge Arran had sentenced him to an absolute discharge.
SIR BRIAN LEVESON P said, in the reserved judgment of the court, that the question of what was required to prove that an accused “did the act or made the omission charged”, within section 4A of the Criminal Procedure (Insanity) Act 1964, had been addressed by the House of Lords in R v AntoineB where it had been recognised that the actus reus of an offence could not always be separated from all consideration of the mens rea. Lord Hutton had suggested that, if there was objective evidence which raised the issue of mistake or accident or self-defence, then the jury should not find the defendant did the “act” unless it was satisfied beyond reasonable doubt on all the evidence that the prosecution had negatived that defence. It was not difficult to see that those examples qualified the act. If committed in self-defence, an assault was not unlawful; if an accident, the act was not deliberate; if a mistake, the quality of the act had been affected by the circumstances. That delineation was clear but did lead to the question whether it was always possible or appropriate to separate actus reus from mens rea. Some offences created rather more difficulty and underlined that a proper consideration of the “acts” required to prove an offence required an offence-specific consideration of its ingredients. As the authorities made clear, there was no bright line and the actus reus might, indeed, involve mental elements. Another question concerned the nature of objective evidence which could include independent eye-witness evidence, CCTV, cell site or expert forensic evidence. What would not fall within the category of objective evidence were the assertions of a defendant who, at the time of speaking, was proved to be suffering from a mental disorder of a type that undermined his or her reliability and which itself had precipitated the finding of unfitness to plead. Those assertions did not themselves need to be obviously delusional. The exclusion of evidence outside that category might put the defendant at a disadvantage; however that was balanced by the fact that these were not criminal proceedings and the disposals were accordingly limited. But the same approach should not necessarily be taken to an interview of a defendant who, at the time of interview, was not suffering from such a psychiatric illness. It was not uncommon for evidence of interviews of a defendant of full capacity, who had been involved in an incident and had provided a full account to the police but thereafter had suffered an injury which rendered him unfit to plead, to be admitted into evidence whatever the strict operation of the principles in R v Antoine might otherwise suggest. The balance struck by authorities such as Attorney General’s Reference (No 3 of 1998) B, R (Young) v Central Criminal Court  2 Cr App R 178, R v B (M) B and R v Jagnieszko  EWCA Crim 3065Not on Bailii! was appropriate. If a defendant’s disability impacted on his/her ability to take part in a trial but he/she was not otherwise affected by a psychiatric condition such as rendered what was said in interview unreliable (whether or not the delusional traits were apparent on the face of the interview), there was no reason why the jury should not hear such evidence, albeit with an appropriate warning. But in considering the extent to which evidence of the interview should be admitted, it remained relevant to consider all the circumstances.
Applying those principles to the cases before the court, it was submitted on behalf of Wells that the issue of self-efence should have been considered by the jury because, while he was admittedly mentally disordered at the time of the killing, he was not so disordered as to make it impossible to assess his account. In their Lordships’ judgment, absent the assertions by Wells of self-defence, there was no objective evidence on which it would have been open to leave self-defence. On behalf of Masud it was submitted that bad character evidence of a single conviction could not properly be relied upon to found a propensity by Masud to do the act with which he was charged. In their Lordships’ judgment it was worth noting that the judge had refused to admit two other incidents of what the Crown contended constituted bad character which demonstrated that he had the fairness of the proceedings very much in mind. On behalf of Hone it was submitted that the indictment, which contained the same charges against a co-defendant who was fit to be tried, should be severed as it would be unfair if the co-defendant gave evidence against her which she would be unable to contradict. Their Lordships were satisfied, weighing all of the relevant factors, that in the exercise of his discretion the judge was entitled to reject the application to sever. It was also argued that more than a mere physical act was required in the case of a secondary party in order to render that act an “injurious” act which could properly found a conclusion that a person had done the act charged as the offence against them. Their Lordships did not agree; an inquiry into the state of mind or level of knowledge of the person concerned at the time when they did the acts or omissions comprising the offence was not required. On behalf of Kail, it was submitted that the evidence of an independent witness amounted to objective evidence that the defendant might have had a reasonable belief that the complainant consented to the sexual touching, the subject of the charges. Their Lordships were not satisfied that such evidence was objective evidence; the question of a reasonable belief in the consent of the complainant to sexual touching clearly fell into the realm mens rea and did not require a finding in the context of section 4A of the 1964 Act. The finding in each of these cases was safe.
Appearances: Philip Gibb QC (appointed by the court under section 4A(2)(b) of the Criminal Procedure (Insanity) Act 1964) for Wells; Daniel Bunting (appointed by the court under section 4A(2)(b) of the 1964 Act) for Masud; Philip McGhee (appointed by the court under section 4A(2)(b) of the 1964 Act) for Hone; Benjamin Newton (appointed by the court under section 4A(2)(b) of the 1964 Act) for Kail; William Mousley QC and Nicholas Bleaney (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.
Reported by: Clare Barsby, Barrister.
© 2013. The Incorporated Council of Law Reporting for England and Wales.
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2016 are available here: MHLR 2016.
When on a trial of the facts of a defendant found unfit to stand trial there could be investigation of the state of mind of the defendant on the basis of objective evidence; what counted as objective evidence; whether correct rulings had been made on severance and the admissibility of evidence - Marc Martin Wells, Sarfraz Masud, Susan Hone, Tony Nicholas Alan Kail v R –  MHLR 49
Points Arising: The trial of the facts process involved a balance to allow public protection from those who committed criminal acts but could not be found criminally responsible.
If the incapacity that required a trial of the facts rather than a criminal trial was present at the time of the incident, material from the defendant was to be left out of account; accordingly, although mens rea issues were not relevant but issues relating to the state of mind might be because criminality might require a particular purpose or be avoided if there was self-defence, accident or mistake, there was a need for objective evidence of such matters, such as independent eye-witnesses, CCTV, expert forensic evidence, the antecedents of the complainants, or statements of the defendant before the loss of capacity.
Facts and Outcome: Various defendants found unfit to stand trial challenged findings that they committed the acts: (i) MMW contended on arrest that a killing occurred in self-defence, and he had minor injuries, but the judge had ruled that there was insufficient objective evidence to allow the issue to be considered, and MMW was found to have committed the act of murder; as the only proper evidence of self-defence was his account on arrest and he was incapacitated at the time, it was rightly excluded.
(ii) SM argued that the judge had been wrong to allow into evidence a previous conviction for sexual assault involving a child in the trial of the facts of an attempted indecent assault of a teenage girl and an assault of the girl and her mother, in part because he could not explain its circumstances and also because it was not sufficient to establish propensity and was more prejudicial than probative; as a single incident could reveal a propensity, it was open to the judge to find the admission of the previous conviction was not unfair, given the purpose of the trial of the facts.
(iii) SH was found on party liability grounds to have committed the acts of 2 sexual assaults committed by her co-defendant (who was also convicted of rape), and contended that the trial of the facts should have been severed from the trial of her co-defendant, that her account that the co-defendant had raped her should have been allowed into evidence, and that the judge had inadequately directed the jury on party liability; it was held that the joinder was not unfair, that the allegation of rape by the co-defendant was not relevant to the trial, and that there was no need to inquire into the state of mind of the secondary party in the trial of the facts.
(iv) TNAK contended that evidence going to whether he had a reasonable belief in consent should have been allowed into evidence in relation to a sexual assault; as this was a mens rea matter, it was not part of the trial of the facts.