McKenzie v R.

Under section 4A of the Criminal Procedure (Insanity) Act 1964, a jury may find that an accused did only the act charged as the offence. Particulars describing conduct amounting to a different offence cannot cure a count which, as charged, could not be proved. Such a finding is unsafe.

On an appeal against a finding under that procedure, section 3 of the Criminal Appeal Act 1968 does not permit substitution of a finding for another offence, and there is no power to order a retrial. Where bad-character evidence is admitted, the jury must decide whether it establishes propensity. Directions must fairly explain its limited use and the practical consequences of an accused’s disability.

The appellant had been found unfit to stand trial. A jury at Bristol Crown Court subsequently found, under section 4A of the Criminal Procedure (Insanity) Act 1964, that he had done the acts alleged in eleven historic sexual-offence counts. A supervision order followed.

Some counts charged indecent assault on a woman although the alleged victim was male. Two further counts covered a period during which the victim was too old for the offence then charged. The prosecution had also adduced the appellant’s previous convictions as bad-character evidence.

The appeal, brought under section 15 of the Criminal Appeal Act 1968, challenged the safety of the findings and the fairness of the proceedings on the remaining counts.

1. Appeal allowed. All eleven findings were quashed and verdicts of acquittal were directed.

2. Section 4A required the jury to determine whether the appellant did the act charged as the offence. The seven counts alleging indecent assault contrary to section 14(1) of the Sexual Offences Act 1956 charged assault on a woman. Neither the particulars nor the evidence could establish that offence where the alleged victim was male. The findings were therefore unsafe.

3. The findings on two further counts were also unsafe. The indictment covered a period after the victim’s fourteenth birthday, when the charged offence under section 1(1) of the Indecency with Children Act 1960 could not have been committed. The jury had received no direction enabling the court to identify whether its findings rested on acts committed during the legally relevant period.

4. Section 3 of the Criminal Appeal Act 1968 applies to appeals against convictions, not to appeals under section 15 against section 4A findings. The court could not substitute findings for indecent assault on a man under section 15(1) of the Sexual Offences Act 1956, nor order a rehearing. Section 16 required acquittals once the findings were held unsafe.

5. On the two remaining counts, the judge could admit two previous convictions as relevant to propensity, but should not have admitted the conviction concerning a teenage girl, whose facts were far removed from the allegations. More importantly, the direction wrongly told the jury that the appellant had a propensity; that was a question for the jury. The judge also failed adequately to explain the limited relevance of the evidence, the appellant’s earlier denials, and the disadvantage caused by his inability through disability to give evidence or explain why the complainant might lie.

6. Those cumulative deficiencies deprived the appellant of the fair trial to which he was entitled on the remaining counts.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed all findings and directed verdicts of acquittal: [2011] EWCA Crim 1550.
• Bristol Crown Court: A jury made section 4A findings on eleven counts on 19 November 2010. HHJ Darwall-Smith imposed concurrent 24-month supervision orders.