Wells & Ors v R

A hearing under section 4A of the Criminal Procedure (Insanity) Act 1964 determines whether an accused who is unfit to plead did the act or omission charged. It is not a criminal trial and does not require proof of every ingredient of the offence. The required act is offence-specific and may include a mental element that is integral to the actus reus.

Under R v Antoine [2000] 2 Cr App R 94, self-defence, accident or mistake may prevent a finding only where objective evidence raises the issue. Assertions made by a defendant whose contemporaneous mental disorder makes them unreliable are not objective evidence. A reliable interview given before the relevant psychiatric incapacity may nevertheless be admitted with an appropriate warning.

Four defendants had been found unfit to plead in Crown Court proceedings. Each then faced a section 4A hearing to decide whether they had done the acts charged, followed by a disposal appropriate to that finding.

• Wells challenged the exclusion of self-defence and related hearsay following a finding that he had done the act of murder.
• Masud challenged the admission of one previous sexual conviction as bad-character evidence.
• Hone challenged the refusal to sever her case from that of a fit co-defendant, the exclusion of part of her account, and the direction on secondary participation.
• Kail challenged the direction that reasonable belief in consent was not an issue for the section 4A jury.

The common issue was the proper scope of a section 4A determination where the accused cannot be tried for criminal guilt.

1. All findings were safe. Leave to appeal was granted to Wells, but his appeal was dismissed. Hone’s appeal was dismissed. Masud’s and Kail’s applications for leave to appeal were refused.
2. A section 4A hearing is a bespoke and limited procedure. It determines whether the accused did the act or omission charged beyond reasonable doubt. It does not determine criminal guilt, conviction or punishment. The court must consider the ingredients of the particular offence, because an actus reus may include a mental element integral to the prohibited act.
3. Applying R v Antoine [2000] 2 Cr App R 94, self-defence, accident and mistake can be considered where objective evidence raises them. Objective evidence may include eyewitness, forensic, CCTV, cell-site and scene evidence. It excludes an assertion by a defendant whose contemporaneous mental disorder undermines its reliability. An interview given while the defendant had capacity may be admitted, subject to an appropriate warning.
4. In Wells’s case, the physical evidence did not objectively raise self-defence. The deceased’s extensive stab wounds, including wounds inflicted while he was apparently immobile, contrasted with Wells’s trivial injuries. The unanimous psychiatric evidence also showed that Wells’s repeated accounts were affected by serious psychosis. Excluding the hearsay evidence consequently followed.
5. In Masud’s case, one prior conviction for an unusual opportunistic sexual assault on a child could establish propensity. Its admission was fair, particularly because the prosecution case was independently strong and the prior conviction followed a guilty plea.
6. In Hone’s case, joint trial caused no substantial unfairness. The fit co-defendant’s account was exculpatory of both defendants, and Hone’s own account was before the jury. Secondary participation under section 4A required proof of a physical act facilitating the principal offence, not proof of Hone’s state of mind or knowledge.
7. In Kail’s case, reasonable belief in consent was a mens rea issue and did not fall to be proved at the section 4A hearing. The jury properly considered actual consent, deliberate sexual touching and the other relevant acts only.

• Court of Appeal (Criminal Division): The court upheld the section 4A findings in all four matters. It dismissed the appeals where leave was granted and refused the remaining applications for leave.
• Crown Court at Winchester: Wells was found unfit to plead to murder, was found to have done the act, and was made subject to a hospital order with an unlimited restriction order.
• Crown Court at Woolwich: Masud was found unfit to plead, found to have done the acts alleged, and made subject to a hospital order.
• Crown Court at Woolwich: Hone was found unfit to plead. She was found not to have done the act charged as rape but to have done the acts charged as sexual assaults, and was made subject to a supervision order.
• Crown Court at Harrow: Kail was found unfit to plead, found to have done the act of sexual assault, and absolutely discharged.