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    At the beginning of the trial the judge was asked to rule on the question of what had to be proved to determine whether a defendant "did the act or made the omission charged" within the meaning of section 2(1) of the Act of 1883. Reluctantly, the judge felt that he was bound by the judgment in Reg. v. Egan (Michael) [1998] 1 Cr.App.R. 121 to rule that the Crown had the burden of proving all the relevant elements of the offence, including mens rea. After this ruling an application was successfully made to amend the indictment to add a count of affray, contrary to section 3 of the Public Order Act 1986, and the case proceeded to trial.

    The defendant gave evidence to the effect that he had gone to the house to save the occupier. Supported by the appropriate written psychiatric material, the evidence of one of the psychiatrists was to the effect that at the material time the defendant had been unable to form a criminal intent. Accordingly the judge ruled that there was no evidence of the required intent for either offence alleged in the indictment and he directed the jury to acquit the defendant. Therefore, a man who had committed very violent acts at a time when he was insane and did not realise that his acts were wrong was set at liberty.

    The Attorney-General brought a reference under section 36 of the Criminal Justice Act 1972 requesting the opinion of the Court of Appeal on the question:

"What has to be proved when an inquiry is embarked upon under the Trial of Lunatics Act 1883 to determine whether the defendant 'did the act or made the omission charged'?"

    The Court of Appeal answered the question as follows, at p. 1203:

"The answer to the question posed by the Attorney-General is that when determining whether 'the defendant did the act or made the omission charged' for the purposes of the Trial of Lunatics Act 1883, and assuming insanity,

(a) the Crown is required to prove the ingredients which constitute the actus reus of the crime. Although different language is used to describe this concept, for present purposes, we respectfully adopt the suggestion in Smith & Hogan, Criminal Law, 8th ed. (1996), p. 29, that it must be shown that the defendant:

'has caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law

. . . '

(b) The Crown is not required to prove the mens rea of the crime alleged, and apart from insanity, the defendant's state of mind ceases to be relevant."

    The court observed, at pp. 1197 and 1201-1202 that in Reg. v. Egan there was no argument advanced by the Crown against the defendant's submission, that no authority was cited and no reference was made to the statutory history or framework, and that the judgment appeared to have been given per incuriam.

    In the full and careful judgment of the court, delivered by Judge L.J., two principal reasons were given for the court's decision. The first reason was the difference in wording between the Act of 1800 and section 2(1) of the Act of 1883. Judge L.J. stated, at p. 1198:

"The significant amendment was that the words 'did the act or made the omission' replaced 'committed the offence' in the Criminal Lunatics Act 1800. The difference is material. The original phrase, 'committed the offence,' appears to encompass the relevant act, together with the necessary intent. By contrast, 'act' and 'omission' do not readily extend to intention. This change of language, apparently quite deliberate, has been left unamended for over a century and for all present purposes remains in force."

The second reason was that the Crown was not required to prove the mens rea of the crime alleged because in an insanity case the issue of mens rea ceases to be relevant, Lord Reading having stated in Felstead v. The King [1914] A.C. 534, 542:

"The indictment of the appellant was for 'feloniously' and 'maliciously' wounding Lilian Ann Felstead, with intent to do some grievous bodily harm. It is obvious that if he was insane at the time of committing the act he could not have had a mens rea, and his state of mind could not then have been that which is involved in the use of the term 'feloniously' or 'maliciously,' for 'crimen non contrahitur, nisi voluntas nocendi intercedat.'"

    The judgment in Reg. v. Egan is inconsistent with the decision in the Attorney-General's Reference (No. 3 of 1998) and in my opinion the latter decision is correct and Reg. v. Egan should not be followed. I consider that Judge L.J. was right to state that the contrast between the words "committed the offence" in the Act of 1800 and the words "did the act" in the Act of 1883 points to the conclusion that the word "act" does not include intent. This view also gains some support from the wording of sections 54 and 55 of the Criminal Procedure (Scotland) Act 1995 relating to the procedure in Scotland which is equivalent to the procedure under section 4A of the Act of 1964. Section 54 of the Act of 1995 provides:

"(1) Where the court is satisfied, on the written or oral evidence of two medical practitioners, that a person charged with the commission of an offence is insane so that his trial cannot proceed or, if it has commenced, cannot continue, the court shall, subject to subsection (2) below -

(a) make a finding to that effect and state the reasons for that finding;

(b) discharge the trial diet and order that a diet (in this Act referred to as 'an examination of facts') be held under section 55 of this Act

. . ."

Section 55 provides:

"(1) At an examination of facts ordered under section 54(1)(b) of this Act the court shall, on the basis of the evidence (if any) already given in the trial and such evidence, or further evidence, as may be led by either party, determine whether it is satisfied -

(a) beyond reasonable doubt, as respects any charge on the indictment or, as the case may be, the complaint in respect of which the accused was being or was to be tried, that he did the act or made the omission constituting the offence; and

(b) on the balance of probabilities, that there are no grounds for acquitting him.

(2) Where the court is satisfied as mentioned in subsection (1) above, it shall make a finding to that effect.

(3) Where the court is not so satisfied it shall, subject to subsection (4) below, acquit the person of the charge.

(4) Where, as respects a person acquitted under subsection (3) above, the court is satisfied as to the matter mentioned in subsection (1)(a) above but it appears to the court that the person was insane at the time of doing the act or making the omission constituting the offence, the court shall state whether the acquittal is on the ground of such insanity. . . ."

It is therefore apparent that Parliament contemplates that under section 55(1)(a) the court may find that the accused "did the act . . . constituting the offence" but may also find that the accused was insane at the time of "doing the act . . . constituting the offence," and in such a case where the accused does not know the nature and quality of his act he will not have the requisite intent for the offence.

    A further consideration to which I have earlier referred is that if the appellant's submission as to the meaning of the word "act" in section 4A(2) were correct, very serious risk to the public would arise which Parliament could not have intended. The risk would be that if a defendant who killed another person and was charged with murder was insane at the time of the killing and was unfit to plead at the time of his trial by reason by that insanity, then, if the appellant's submission were correct mens rea could not be proved because of the insanity existing at the time of the alleged offence, and the jury would have to acquit the defendant and he would be released to the danger of the public.

    Counsel for the appellant also submitted that it does not appear from the report of Felstead v. The King [1914] A.C. 534 whether the defendant was found to be insane on the ground that he did not know the nature and quality of his act or on the ground that he did not know that what he was doing was wrong. Therefore he submitted that the statement of Lord Reading, at p. 542 that: "It is obvious that if he was insane at the time of committing the act he could not have had a mens rea" required qualification and was not correct in all circumstances. If a defendant was insane under the second limb of the McNaghten Rules (McNaghten's Case (1843) 10 CI.&F. 200) so that, although he knew the nature and quality of his act, he did not know that what he was doing was wrong, the defendant could still have the intent to kill or cause grievous bodily harm. This view is supported by Professor Sir John Smith Q.C. in Smith & Hogan, Criminal Law, 9th ed., (1999), p. 206 where he says with reference to the proposition that the defence of insanity is based on the absence of mens rea: "Awareness of 'wrongness' is not an element in mens rea." Therefore counsel submitted that if a defendant was insane because he did not know that his act of killing was wrong, it would still be appropriate for the jury to consider whether he had the intent to kill or cause grievous bodily harm on a hearing under section 4A(2).

    My Lords, a person who kills when he is insane because he does not know that what he is doing is wrong may have the intention to kill, but I consider that insanity under either limb of the McNaghten Rules negatives the mental responsibility of the defendant: see per Lord Diplock in Reg. v. Sullivan [1984] A.C. 156, 170D. Moreover, in some cases it would be very difficult to decide if one limb of the McNaghten test applied to the exclusion of the other, as is illustrated by the views of the three psychiatrists in Attorney-General's Reference (No. 3 of 1998) [1999] 3 W.L.R. 1194, where all were agreed that the defendant did not know that what he was doing was wrong, and, in addition, one considered that he did not know the nature and quality of the act he was doing. Accordingly where it is established that the defendant was insane under either limb of the McNaghten Rules at the time of the alleged offence the jury should no longer be concerned with the the mental responsibility of the defendant for that offence and a jury making a determination under section 4A(2) should not consider the issue of mens rea.

    Counsel further submitted that the Court of Appeal was correct in Reg. v. Egan's (Michael) [1998] 1 Cr.App.R. 121 to have regard to the importance of protecting an innocent person, suffering from mental disability at the time of his trial, from being detained in hospital under a court order after being charged with a crime of which he was not guilty because he lacked mens rea and of which he would have been acquitted if his trial could have proceeded, and that to give this protection it was necessary to require the prosecution to prove the requisite mens rea in order to establish that the act charged against him as the offence had been done by him. This submission is supported, as Judge L.J. observes in Attorney-General's Reference (No. 3 of 1998), at p. 222E, by the commentary on Reg. v. Egan by Professor Sir John Smith Q.C. [1997] Crim. L.R. 225, 226 where he said:

"In the present case the jury had to be satisfied that the appellant acted dishonestly and with intent permanently to deprive. The section could have been more clearly worded, but there is no doubt that that is the meaning intended."

Sir John then referred to a passage in the Report of the Butler Committee on Mentally Abnormal Offenders (1975) (Cmnd. 6244). The relevant paragraph is:

"10.24. If the defendant is found to be under disability, there should nevertheless be a trial of the facts to the fullest extent possible having regard to the medical condition of the defendant. The object of this proposal is primarily to enable the jury to return a verdict of not guilty where the evidence is not sufficient for a conviction. If a normal verdict of not guilty is to be possible, the normal rules of evidence and burden of proof must apply. It follows that on the trial of the facts the judge should direct the jury that if they are not satisfied that the defendant did the act with the necessary mental state they must return a verdict of not guilty . . . the issues to be established by the prosecution include the defendant's state of mind. If this were not so, the defendant would not obtain his verdict of not guilty even though there was insufficient evidence that he had the requisite intention or other mental state for the crime — indeed, he would not obtain it even though it was clear that the affair was an accident. This would clearly be unsatisfactory."

    However, the view of the Butler Committee was criticised on the ground that where a person is unfit to be tried in the normal way because of his mental state, it would be unrealistic and contradictory that in carrying out the determination under section 4A(2) the jury should have to consider what intention that person had in his mind at the time of the alleged offence. I consider that this criticism is well founded and that by using the word "act" and not the word "offence" in subsection (2) Parliament made it clear that the jury was not to consider the mental ingredients of the offence.

    Moreover, it is to be observed that a measure of protection is given to a person who suffers from mental disability at the time of his trial by section 4 of the Act of 1964 (as substituted by section 2 of the Act of 1991). Section 4 provides:

"(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.

(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.

(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined. . . ."

In very many cases the prosecution seeks to prove the requisite mens rea for the offence by proving the actions of the defendant and asking the jury to infer the mens rea from those actions. If the defence considers that the facts relied on by the prosecution do not give rise to the prima facie inference that the defendant had the requisite mens rea for the offence charged, it may request the court under section 4(2) to permit the trial to proceed and at the conclusion of the prosecution case it can then make a submission of no case to answer.

    The purpose of section 4A, in my opinion, is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea. The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future. I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or made an omission) which would constitute a crime if done (or made) with the requisite mens rea. As Judge L.J. stated in Attorney-General's Reference (No. 3 of 1998) [1999] 3 W.L.R. 1194, 1202:

"Where on an indictment for rape it is proved that sexual intercourse has taken place without the consent of the woman, and the defendant has established insanity, he should not be entitled to an acquittal on the basis that he mistakenly, but insanely, understood or believed that she was consenting."

    A number of learned authors have commented that it is difficult in some cases to distinguish precisely between the actus reus and the mens rea and that the actus reus can include a mental element. In Smith & Hogan, Criminal Law, 9th ed., p. 28 Professor Sir John Smith states:

"It is not always possible to separate actus reus from mens rea. Sometimes a word which describes the actus reus, or part of it, implies a mental element."

In his speech in Director of Public Prosecutions for Northern Ireland v. Lynch [1975] A.C. 653, 688 Lord Simon of Glaisdale recognised the difficulties arising from what he termed "the chaotic terminology" relating to the mental element in crime. Nevertheless, he recognised that actus reus and mens rea are useful terms and said, at p. 690:

"Both terms have, however, justified themselves by their usefulness; and I shall myself employ them in their traditional senses—namely, actus reus to mean such conduct as constitutes a crime if the mental element involved in the definition of the crime is also present (or, more shortly, conduct prohibited by law); and mens rea to mean such mental element, over and above volition, as is involved in the definition of the crime."

Therefore, I consider that the ruling of the Court of Appeal in Attorney-General's Reference (No. 3 of 1998) was correct.

    In their full and helpful submissions counsel raised a further issue on which they invited the guidance of your Lordships. The issue is this. If, on a determination under section 4A(2), the jury are only concerned to decide whether the defendant did the "act" and are not required to consider whether the defendant had the requisite mens rea for the offence, should the jury nevertheless decide that the defendant did not do the "act" if the defendant would have had an arguable defence of accident or mistake or self-defence which he could have raised if he had not been under a disability and the trial had proceeded in the normal way. The difficulty inherent in this issue is that such defences almost invariably involve some consideration of the mental state of the defendant. Thus in Palmer v. The Queen [1971] A.C. 814, 832 when considering self-defence, Lord Morris of Borth-y-Gest referred to the defendant doing "what he honestly and instinctively thought was necessary" to defend himself. But on the determination under section 4A(2) the defendant's state of mind is not to be considered. How then is this difficulty to be resolved? I would hold that it should be resolved in this way. If there is objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the "act" unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence. For example, if the defendant had struck another person with his fist and the blow had caused death, it would be open to the jury under section 4A(4) to acquit the defendant charged with manslaughter if a witness gave evidence that the victim had attacked the defendant with a knife before the defendant struck him. Again, if a woman was charged with theft of a handbag and a witness gave evidence that on sitting down at a table in a restaurant the defendant had placed her own handbag on the floor and, on getting up to leave, picked up the handbag placed beside her by a woman at the next table, it would be open to the jury to acquit.

    But what the defence cannot do, in the absence of a witness whose evidence raises the defence, is to suggest to the jury that the defendant may have acted under a mistake, or by accident, or in self-defence, and to submit that the jury should acquit unless the prosecution satisfies them that there is no reasonable possibility that that suggestion is correct. I consider that the same approach is to be taken if defence counsel wishes to advance the defence that the defendant, in law, did not do the "act" because his action was involuntary, as when a man kicks out and strikes another in the course of an uncontrollable fit brought about by a medical condition. In such a case there would have to be evidence that the defendant suffered from the condition.

    The defence of provocation to a charge of murder is only relevant when the jury are satisfied that the defendant had the requisite mens rea for murder, and I wish to reserve my opinion on the question whether, on a determination under section 4A(2), it would be open to the defence to call witnesses to raise the issue of provocation.

    As I have observed at the commencement of this judgment, it was the co-accused of the appellant who killed the victim by stabbing him and it appears that the appellant was charged as a principal in the second degree. No issue was raised before the Crown Court judge or before the Court of Appeal or your Lordships in relation to the fact that the appellant was the secondary party, no doubt because it was clear that by his own actions in preventing the victim from leaving and in striking him the appellant had played a part in the killing. However, on a determination under section 4A(2) where the defendant had been charged with participation in a murder as a secondary party and another person had carried out the actual killing, difficult questions could arise as to the meaning of the word "act" in such a situation and as to the matters which the jury would have to consider, and I express no opinion on such questions in this judgment.

    Therefore, for the reasons which I have given, I would dismiss the appeal. I would answer the certified question in the negative, and I would answer the wider question formulated by counsel in the negative, subject to the right of defence counsel to raise the defence of mistake, accident, self-defence or involuntariness in the way which I have stated.