Caught in the act: defining actus reus where a defendant is unfit to plead
Posted on 13th February 2020
Criminal offences are made up of different elements that must be proved by the prosecution to secure a conviction. While not all aspects of an allegation may need to be proved (and it is rare that the prosecution would succeed in doing so), if the essential elements are not proved the defendant will be found not guilty. Much like a cooking recipe, there may be variations on a classic but there will be essential ingredients that define the recipe. You can’t make an omelette without breaking a few eggs as they say.
Where a defendant is found unfit to plead (for more on this see an earlier blog by my colleagues Graeme Hydari and Gary Monks) the prosecution must prove that the defendant did the act or made the omission charged. If the act or omission is not proved a verdict of not guilty is returned and the criminal courts have no further power to deal with that the defendant in relation to that charge. To define what is meant by the ‘act’ or ‘omission’ is to define what evidential hurdle the prosecution must overcome (or what ingredients are essential).
A particular issue that requires thorough representation, targeted expert evidence and careful judicial consideration is the definition of the ‘act’.
Most who have attended law school (and many who have not) will be familiar with the distinction between the guilty act (actus reus) and the guilty mind (mens rea). The definition of act or omission when dealing with a defendant who has been found unfit is more nuanced than these terms might suggest.
Case law has made clear that the use of the word act rather than offence was deliberate and it is only the act or omission that must be proved by the prosecution. Generally speaking the act or omission will not include a defendant’s intention or state of mind but in some cases an aspect of the defendant’s state of mind will be encompassed in the act or omission.
In the case of R v B  EWCA Crim 770 the Court of Appeal considered an appeal against conviction a young autistic man in relation to a charge of voyeurism. The Appellant has been found not fit to plead. The Court held that the act included not only the viewing of another engaged in a private act but also the purpose being for sexual gratification. So an element of the state of mind was included in the definition in the act. The Court found however that the issue of consent did not need to be addressed as it did not form part of the act (but would have been in issue if the defendant had not been found unfit).
The judgement in this case highlights why this question matters so much. The Court found that in the case of voyeurism it is the purpose that renders the act injurious. It is that which brings it within the remit if the criminal law and why it exists as a criminal offence. It is obvious that the criminal courts should only be concerned with whether a defendant has committed injurious acts or omissions. The Courts have significant powers in relation to defendants who have been found unfit to plead and to have done the act or made the omission charged. It would be unfair if these powers could be exercised against someone found to have done an act that would not otherwise fall within the remit of the criminal law.
There is a relative dearth of cases or guidance on the application of this principle. There are a number of offences where the act could be argued to include aspects of the state of mind of the defendant. These include various communication offences such as persistent use of the communication network and malicious communications offences. Another offence is that of indecent exposure.
The offence of indecent exposure is constructed in a similar way to voyeurism. The basis act is the intentional exposure of someone’s genitals. The mental elements are that the person must intend someone to see their genitals and that the person will be caused alarm or distress. I successfully argued in the Crown Court that all of these elements comprise the ‘act’ and must therefore be proved. It is not clear that every Judge would have agreed with me but it is an argument that must be made if it can be justified. The challenge in applying these principles is that the approach will not only differ with the offence but also the facts of the case.
The result in that case was that while there was clear evidence that my client exposed his genitals and had also been seen following a female. The question as to whether he intended that anyone see his genitals and most crucially that he intended for anyone to be caused alarm or distress was left to the jury.
This is an important distinction when dealing with individuals suffering from mental health conditions. Many conditions can be associated with disinhibited behaviour. There is a significant difference between someone who does not have the ability to determine what is appropriate behaviour and someone who intends to cause alarm or distress.
There are many offences where this quandary may never have been considered. The lack of case law on this issue and the inevitable difference in application of these principles depending on the offence and the facts of the case puts great pressure on the legal representatives and judiciary to get it right first time round and to identify cases where there may be grounds for appeal because these principles have not been applied correctly.
Another important procedural point is reliance on any account given in interview. The case of Swinbourne  EWCA Crim 2329 states that where there is evidence a defendant was suffering from the same mental disorder at the time of interview, it will generally not be appropriate to rely on the interview. As outlined in the case of Wells  EWCA Crim 2,  1 WLR 2797, this will not always be the case and there may well be circumstances where an interview could be relied upon, for example if the defendant had become ‘unfit’ after the interview.
Dealing with mental health in the context of criminal law is an imperfect process. Mental health is a challenging concept to address in legislation. The judiciary will not generally be qualified in psychiatry or psychology yet they will be expected to make determinations about the nature and impact of mental health conditions that have serious implications. Of course, in order to make these determinations the judiciary will be assisted by expert medical evidence. Legal representatives have a crucial role in ensuring that the right information is provided to experts and that they are asked the right questions. Judges must be taken through the relevant case law and legislation. Legal representatives must also be equipped to identifying any issues giving rise to grounds to appeal as a defendant who has been unfit to plead cannot conduct an appeal themselves.
Representing mentally vulnerable defendants requires a depth of knowledge and expertise in this complex and nuanced area of law.