B, R v

For a determination under section 4A(2) of the Criminal Procedure (Insanity) Act 1964, the statutory act is identified by construing the particular offence. The inquiry does not generally extend to mens rea. However, a mental fact forms part of the act where it is inseparable from the conduct that makes the conduct injurious.

For voyeurism under section 67(1) of the Sexual Offences Act 2003, deliberate observation and the observer’s purpose of obtaining sexual gratification are inseparable parts of the act. The observer’s knowledge of the other person’s lack of consent is not. An unsafe finding under section 4A(2) must be quashed and an acquittal recorded. A sexual offences prevention order requires necessity to protect against serious sexual harm, not merely inappropriate inquisitiveness.

The appellant, an autistic young man with a learning disability, was charged with two counts of voyeurism involving children in changing cubicles. At St Albans Crown Court, the judge found him unfit to stand trial. The jury was then directed, under section 4A(2) of the Criminal Procedure (Insanity) Act 1964, to decide only whether he had deliberately observed a child doing a private act. It made that finding on one count.

The judge imposed a two-year supervision order, which led to sex-offender notification requirements, and made a five-year sexual offences prevention order. The appellant challenged the scope of the jury’s inquiry, the absence of expert evidence, and the prevention order. The central issue was whether sexual gratification was part of the act charged for the purposes of section 4A(2).

1. Appeal allowed. The finding that the appellant did the act charged on count 2 was unsafe. It was quashed and, under section 16(4) of the Criminal Appeal Act 1968, an acquittal had to be recorded. The court had no power to order a retrial.

2. Section 4A(2) requires the jury to decide whether the accused did the act charged, rather than to conduct a conventional inquiry into all elements of criminal liability. Following R v Antoine [2001] 1 AC 340, the inquiry generally excludes mens rea. The statutory act must nevertheless be identified by construing the particular offence. A mental state may be part of that act where it is inseparable from the conduct that constitutes the relevant injurious act.

3. For section 67(1) voyeurism, observation means a deliberate decision to look, rather than accidental, careless or reckless perception. Deliberate observation of a person doing a private act and the observer’s purpose of obtaining his own sexual gratification are indissolubly linked. Together they are the act charged for section 4A(2). By contrast, the observer’s actual knowledge that the person does not consent is a further mental element and is not part of that act.

4. The trial judge therefore erred by directing the jury to disregard the purpose of sexual gratification. The jury had made no finding on that indispensable component, so its finding could not stand.

5. The court left open whether psychiatric expert evidence might assist a jury on sexual purpose in a future, fact-specific case. It also held, as an alternative ground, that the sexual offences prevention order lacked a proper basis. Such an order requires necessity to protect the public from future serious sexual physical or psychological harm. The evidence and the judge’s own findings did not establish that risk.

• Court of Appeal (Criminal Division): Allowed the appeal in [2012] EWCA Crim 770, quashed the section 4A(2) finding on count 2, and directed an acquittal.
• St Albans Crown Court: Found the appellant unfit to stand trial, directed a jury determination under section 4A(2) of the Criminal Procedure (Insanity) Act 1964, and imposed a supervision order and a sexual offences prevention order after the jury’s finding on one count.