SO v The Crown

In self-defence, the reasonableness of force is assessed in the circumstances as the defendant genuinely believed them to be. A genuine mistaken belief may therefore be relied upon, subject to voluntary intoxication. However, the requirement of reasonable force retains an objective element. A defendant suffering from an insane delusion cannot set that standard by reference to his own psychiatric condition.

An insane delusion that causes a belief in danger does not necessarily require an outright acquittal. Where unchallenged psychiatric evidence and the prosecution’s own case establish legal insanity, and there is no safe rational basis to reject that evidence, the proper course is a special verdict of not guilty by reason of insanity, rather than conviction.

SO v The Crown appealed convictions at Isleworth Crown Court for two counts of affray and one count of inflicting grievous bodily harm. The offences arose from violent conduct towards police officers while the appellant was behaving in a seriously disturbed manner.

Two psychiatrists gave unchallenged evidence that, at the material times, he was labouring under a defect of reason caused by a disease of the mind. The Crown accepted at trial that he held insane delusions, including a belief that evil spirits intended to harm him. It also accepted that the first limb of self-defence could not be disproved, but contended that the force used was unreasonable.

The principal issue was whether an insane but genuine belief in danger entitled him to a complete acquittal under section 76 of the Criminal Justice and Immigration Act 2008, or whether insanity remained determinative of the appropriate verdict.

1. Appeal allowed. The court rejected the principal submission that an insane delusion which generated a genuine belief in danger necessarily entitled the defendant to a complete acquittal on grounds of self-defence.

2. Under section 76 of the Criminal Justice and Immigration Act 2008, the degree of force is assessed in the circumstances as the defendant genuinely believed them to be. That assessment nevertheless retains an objective element. An insane person cannot determine what reasonable force is by reference to his own insanity. The court followed the general approach in Martin (Anthony Edward) [2002] 1 CAR 27 and Canns [2005] EWCA Crim 2264: psychiatric characteristics are not ordinarily brought into the assessment of excessive force in self-defence.

3. The Crown was entitled to contend that, even on the appellant’s genuinely held delusions, the danger he perceived did not justify his violent responses. The evidence left issues for the jury about the content of his beliefs, whether he believed an immediate attack was threatened, and whether the force used was proportionate. The summing-up, read as a whole, did not make the convictions unsafe on the self-defence ground.

4. The court explained that the reference in M’Naghten (1843) 10 Cl & F 200 to a person being exempt from punishment did not necessarily require a complete acquittal. It was compatible with a special verdict of not guilty by reason of insanity.

5. However, the unchallenged psychiatric evidence, the contemporaneous lay evidence, and the Crown’s acceptance that the appellant had insane delusions left no safe or rational basis for rejecting legal insanity. Under section 6 of the Criminal Appeal Act 1968, the court substituted special verdicts of not guilty by reason of insanity on all three counts. As the appellant had recovered and no order would serve a purpose, it ordered an absolute discharge.

• Court of Appeal (Criminal Division): In [2013] EWCA Crim 1725, the court held the convictions unsafe because there was no safe rational basis to depart from the unchallenged psychiatric evidence. It substituted special verdicts of not guilty by reason of insanity and ordered an absolute discharge.
• Crown Court at Isleworth: On 27 March 2013, Mr Recorder Peddie QC convicted the appellant of two counts of affray and one count of inflicting grievous bodily harm, and imposed a total sentence of 18 months’ imprisonment.