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|Judgments - Regina v. Antoine (On Appeal From The Court of Appeal Criminal Division)
Lord Nicholls Of Birkenhead Lord Mackay Of Clashfern Lord Nolan
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL
ON 30 MARCH 2000
LORD NICHOLLS OF BIRKENHEAD
I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Hutton. For the reasons he gives I would dismiss this appeal.
LORD MACKAY OF CLASHFERN
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hutton. For the reasons he gives I would dismiss this appeal.
I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Hutton. For the reasons he gives I would dismiss this appeal.
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Hutton. I agree with it, and for the reasons which he has given I too would dismiss the appeal.
The issue which arises on this appeal is whether an accused person charged with murder is entitled to rely on the defence of diminished responsibility under section 2 of the Homicide Act 1957, when he has been found by a jury to be unfit to plead by reason of mental disability, and a jury proceeds under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (as substituted by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991) to determine whether he did the act charged against him as the offence.
On 2 December 1995, Michael Earridge, aged 15, was brutally murdered by two other youths, David McCallum, aged 17, and the appellant, Pierre Antoine, aged 16, in a room in a flat in South London, apparently as a sacrifice to the devil. McCallum plunged a knife into Michael Earridge's chest a number of times in the presence of the appellant after the appellant had prevented the victim from leaving and had struck him. The appellant and McCallum were indicted on a count of murder and (by an unopposed amendment) on a second count of manslaughter. McCallum pleaded not guilty to murder but guilty to manslaughter on the ground of diminished responsibility and his plea was accepted by the Crown. He was committed to hospital under a hospital order subject to a restriction order without limit of time, pursuant to sections 37 and 41 of the Mental Health Act 1983.
The proceedings against the appellant took a different course. On 13 March 1997 the appellant appeared before Judge van der Werff in the Inner London Crown Court and it was contended on his behalf that he was unfit to plead by reason of mental disability. On 18 March 1997 the jury heard evidence from two psychiatrists called on behalf of the appellant and one psychiatrist called on behalf of the Crown and the jury found that the appellant was under a disability so that he was not fit to stand trial. Their Lordships were informed by counsel that the evidence of the psychiatrists was that the appellant was suffering from paranoid schizophrenia.
Upon the jury finding that the appellant was unfit to plead the procedure to be followed was that provided by section 4A of the Act of 1964 as substituted. Section 4A states:
Before the hearing under section 4A(2) was commenced by a different jury counsel for the appellant requested the judge to give a ruling on the question whether the defendant was entitled to raise the issue of, and seek to prove, diminished responsibility in respect of the count of murder. Counsel sought this ruling because if the jury found that the killing had been carried out when the appellant was suffering from diminished responsibility the judge would not be obliged (as he would be on a finding that the appellant had done the act of murder) to make a hospital order directing that the appellant's discharge be restricted without limit of time. The judge, in a careful and clear ruling, stated that the question gave rise to two issues. The first issue was what did the prosecution have to prove to cause the jury to make a finding under section 4A(3) that the accused did the act charged against him. The judge ruled, following the judgment of the Court of Appeal in Reg. v. Egan (Michael)  1 Cr.App.R. 121, that the Crown had to prove both the actus reus of murder and the appropriate mens rea, and he observed: "If they cannot do that, then of course the defendant is to be acquitted." The second issue was that raised by counsel, namely, was the defendant entitled to raise the issue of, and seek to prove, diminished responsibility in respect of the count charging murder. On that issue the judge ruled against the appellant and held that on the wording of section 2 of the Act of 1957 diminished responsibility could not be raised on the hearing under section 4A(2). The jury then heard evidence on behalf of the Crown and the defence, the judge summed up, and on 2 June 1997, after a short retirement, the jury returned a verdict that they were satisfied that the appellant had done the act of murder charged against him. The judge then made an order that the appellant be admitted to hospital and that his discharge be restricted without limit of time.
On appeal to the Court of Appeal the appellant challenged the judge's ruling that he could not raise the issue of diminished responsibility on the hearing under section 4A(2), and this was the principal issue addressed by the judgment of the Court of Appeal delivered by Lord Bingham of Cornhill C.J.  3 W.L.R. 1204. The Court of Appeal dismissed the appeal and held that the ruling of the judge was correct, and the Lord Chief Justice stated, at p. 1214:
In the course of the judgment the Lord Chief Justice stated, at p. 1213, that the authority of Reg. v. Egan was not in issue before the Court of Appeal, but he expressed doubts about the correctness of the judgment in that case.
The point of law of general public importance certified for the opinion of this House is:
On the hearing of the appeal counsel for the appellant and for the Crown invited your Lordships to consider not only the certified question, but a wider question which was formulated by counsel:
This question raises the issue whether the judgment in Reg. v. Egan is correct. Because the two questions are interrelated and the wider question raises an important issue I think it right to express an opinion on it after having considered the certified question.
The certified question
Section 2 of the Act of 1957 provides:
The provisions of section 2 only apply where "but for this section [a person] would be liable . . . to be convicted of murder." Section 4A(2) of the Act of 1964 provides that where it is determined by the jury that the accused is under a disability "the trial shall not proceed or further proceed" but a jury shall determine whether they are satisfied that the accused did the act charged against him as the offence. Therefore, once it has been determined by the jury that the accused is under a disability the trial terminates and the accused is no longer liable within the procedure laid down by section 4A to be convicted of murder so that the defence under section 2 does not arise. It is also clear that if a jury determines under section 4(2) that the accused did the act charged against him as the offence, that finding is not a conviction.
Mr. Spens Q.C., for the appellant, submitted that the term "the act" in section 4A(2) includes the mental element of the offence charged against the accused, and that having regard to the provisions of section 2 of the Act of 1957 the mental element in murder must be one without diminished responsibility. Therefore, if the accused carried out the act of killing when he suffered from diminished responsibility, he did not do the act of murder. It will be necessary to give further consideration to this submission when considering the second question, but at this point I would observe that if this submission were correct it would mean that where a defendant, having killed another person, was charged on the sole count in the indictment with murder, and the jury having embarked on a hearing under section 4A(2) found that the accused, although having done the act of killing, had not done the act of murder because he was suffering from diminished responsibility, section 4A(4) would require the jury to return a verdict of acquittal and the defendant would be set at liberty - a result which Parliament could not have intended.
Mr. Spens further submitted that a plea of guilty of manslaughter on the ground of diminished responsibility can be accepted where there has not been a full trial. In Reg. v. Cox (Maurice)  1 W.L.R. 308, 310 delivering the judgment of the Court of Appeal, Winn L.J. stated:
In such cases, where the plea of guilty of manslaughter on the ground of diminished responsibility is accepted, the accused is charged with murder and would be liable to be convicted of murder if the trial proceeded. However under section 4A after a finding of disability the trial cannot proceed, it is terminated, and the accused is no longer liable to be convicted of murder.
Lord Bingham of Cornhill C.J.  3 W.L.R. 1204, 1214 also stated that in the opinion of the court a striking anomaly would arise if the defendant could rely on diminished responsibility on a determination under section 4A(2). In this case if the defendant were permitted to prove diminished responsibility and established that defence the jury would acquit him of the act of murder charged in the first count under section 4A(4) but would find that he did the act of manslaughter charged in the second count under section 4A(3), and he would be liable to a hospital order under section 5(2) of the Act of 1964. If, however, while detained in hospital following the finding that he had done the act charged against him as manslaughter the defendant became fit to be tried, the power of the Secretary of State to remit him for trial under paragraph 4 of Schedule 1 to the Act of 1991 would be effectively frustrated. He could not be tried for murder because the jury had previously acquitted him in respect of that count, and he could not be convicted of manslaughter under section 2(3) of the Act of 1957 on the basis of diminished responsibility as section 2(3) would not apply because he would not be a person "who but for this section would be liable . . . to be convicted of murder."
The appellant submitted that this anomaly is not conclusive against him and that it could be avoided by the Crown adopting the practical measure of charging the accused with manslaughter by reason of diminished responsibility. I am unable to accept that submission because it does not surmount the difficulty that diminished responsibility is a statutory defence which is only established where the defendant "but for this section would be liable . . . to be convicted of murder."
Accordingly I am of opinion that the Court of Appeal was right to hold that the provisions of section 2 of the Act of 1957 cannot apply to the hearing under section 4A(2) and that at such a hearing the defendant cannot raise the defence of diminished responsibility.
The wider question
In Reg. v. Egan (Michael)  1 Cr.App.R. 121 the defendant was charged with the theft of a woman's handbag. The Crown case was that he had snatched the handbag from the woman when she was travelling on a train. The Court of Appeal described the evidence that he was the man who had snatched the handbag as "compelling to a degree." At the time of his arrest the defendant was strangely erratic in his behaviour, he maintained at all times to the police that he had been arrested for no reason, and he denied snatching the handbag at all. He was unable to explain how property from the handbag had been found either in his possession or close to him or where he had been on the train.
At the trial the question was raised whether the defendant was fit to plead and the jury found that he was under a disability it being clear that the disability was a mental one. The jury then proceeded to a determination under section 4A(2) and found that he had done the act charged against him as the offence and the judge made a hospital order. An unusual feature of the case was that although found unfit to plead the defendant was permitted to give evidence on the procedure under section 4A(2) and denied that he had taken the handbag. The Court of Appeal stated, at p. 123:
In my opinion, after a finding that the defendant is unfit to plead because of a mental disability the judge and counsel should always give careful consideration to whether it is right that the defendant should be called to give evidence on the hearing under section 4A(2).
On appeal his counsel advanced the submission that in order for the jury to be satisfied that the defendant had done the act charged against him as the offence, it was essential for the Crown to prove not only the physical act but also the mental elements in the offence of theft. This submission was not challenged by the Crown and the Court of Appeal accepted it. In delivering the judgment of the Court Ognall J. stated, at pp. 124-125:
However, the Court of Appeal dismissed the appeal and held that as the defendant had never raised the point before the jury that he did not recognise that what he was doing was dishonest and raised only the issue that he had not snatched the bag, it was not incumbent on the judge to give any direction to the jury that the Crown must prove the mental ingredients of the offence of theft, and Ognall J. stated, at p. 126:
Therefore, the judgment of the Court of Appeal was to the effect that if the defendant had raised the issue that because of his mental condition he was unable to recognise that snatching a woman's handbag was dishonest or to form the intention permanently to deprive and if the jury had not been satisfied beyond a reasonable doubt that he did recognise that it was dishonest and that he did form that intent, the jury would have had to acquit him under section 4A(4) and he could not have been sent to hospital for treatment.
The judgment in Reg. v. Egan was considered by a differently constituted Court of Appeal in Attorney-General's Reference (No. 3 of 1998)  3 W.L.R. 1194. In that case the court was primarily concerned with section 2(1) of the Trial of Lunatics Act 1883 (46 & 47 Vict. c. 38), and it is therefore necessary to set out the provisions of that section and also the earlier provisions of the Criminal Lunatics Act 1800 (39 & 40 Geo. 3, c. 94). The preamble to the earlier Act began by noting that individuals
The Act provided:
Section 2(1) of the Act of 1883 provided:
Where such a special verdict was returned, the court was obliged to order that the accused be kept in custody as a "criminal lunatic." Section 1 of the Act of 1964 amended the special verdict under section 2(1) to one of "not guilty by reason of insanity," and where a special verdict of not guilty of murder by reason of insanity is returned the court is obliged under section 5 of the Act of 1964 and section 5 of, and Schedule 1 to, the Act of 1991 to order the admission of the defendant to hospital subject to an order restricting his discharge without limit of time. It is to be observed that in both section 2(1) of the Act of 1883 and section 4A(2) of the Act of 1964 the same words appear: "did the act or made the omission charged."
The facts in Attorney-General's Reference (No. 3 of 1998), briefly stated, were these. The indictment charged the defendant with the offence of aggravated burglary. In the early hours of the morning the defendant, who was armed with a snooker cue, smashed open the front door of a dwelling house and entered the hallway and attempted to strike the householder. Police officers arrived at the scene, and the defendant retreated to the front door and wedged himself against it to prevent them from entering the house. The police officers eventually managed to enter the house and it took at least five of them to handcuff and restrain him. The police officers noted that the defendant was extremely agitated, was sweating profusely, that his eyes were fixed and that he did not appear to hear what they were saying.
At the trial the defendant was fit to plead but it was agreed on both sides that at the time when he entered the house he was legally insane. Three psychiatrists were agreed that at that time he did not know that what he was doing was wrong. In addition, one of the psychiatrists considered that he did not know the nature and quality of the act he was doing. The defendant believed that he was Jesus Christ, surrounded by evil and danger, and he was looking for a house with a light on because that would be a safe house where he would be protected from evil.