Loake v Crown Prosecution Service

The common-law defence of insanity is of general application. It is not confined to offences requiring proof of mens rea. A defendant may possess the mens rea for an offence yet be entitled to the defence under the second limb of the M’Naghten Rules if, because of a disease of the mind, the defendant did not know that the conduct was legally wrong. The objective standard in section 1(2) of the Protection from Harassment Act 1997 does not exclude the defence. The defence therefore remains available for an offence under section 2, even where the conduct objectively amounts to harassment. The defendant bears the burden of proving insanity on the balance of probabilities, supported where necessary by cogent psychiatric evidence.

The appellant had been convicted of harassment under section 2 of the Protection from Harassment Act 1997 after sending numerous text messages to her separated husband. On appeal to the Crown Court she sought to rely on insanity and psychiatric evidence. The Crown Court ruled that the defence was unavailable because the statutory test in section 1(2) was wholly objective, and dismissed the appeal.

The Crown Court stated a question of law for the Administrative Court: whether insanity was available to a defendant charged with harassment contrary to section 2(1) of the Act. The parties agreed that, if the question were answered in the appellant’s favour, the case should be remitted for reconsideration.

1. The court answered Yes to the stated question. The defence of insanity is available to a defendant charged under section 2(1) of the Protection from Harassment Act 1997.

2. Insanity is a common-law defence grounded in the principle that criminal punishment should be imposed only on persons responsible for their conduct. The first limb of the M’Naghten Rules concerns failure to know the nature and quality of the act. The second limb provides an independent basis for relief where, because of a disease of the mind, the defendant did not know that the act was wrong in the sense of being contrary to law.

3. The second limb may apply even where the defendant possessed the mens rea of the offence. It is therefore incorrect to treat insanity as merely a particular form of absence of mens rea. The court regarded the contrary observations in Director of Public Prosecutions v Harper [1997] 1 WLR 1406 as misleading and declined to follow them. The corresponding discussion in R v Horseferry Road Magistrates’ Court ex parte K [1997] QB 23 was likewise not followed.

4. The objective reasonable-person test in section 1(2) determines whether conduct amounts to harassment. It does not address, and cannot displace, the separate common-law defence of insanity. Otherwise, a person lacking knowledge of the nature and quality of the conduct, or lacking knowledge that it was legally wrong, could incur criminal liability solely because the conduct appeared objectively harassing.

5. R v Colohan [2001] EWCA Crim 1251 did not decide the insanity issue. It concerned whether the hypothetical reasonable person should share the defendant’s mental disorder. Its reasoning about the statutory purpose and objective standard did not undermine the availability of insanity under the M’Naghten Rules.

6. The case was remitted to the Crown Court under section 28A(3)(b) of the Senior Courts Act 1981 for redetermination of the appellant’s appeal against conviction. The court stressed that insanity is presumed absent, must be proved by the defendant on the balance of probabilities, and requires cogent psychiatric evidence addressing the specific M’Naghten questions.

• High Court (Administrative Court): answered the stated question in the affirmative and remitted the case to the Crown Court under section 28A(3)(b) of the Senior Courts Act 1981.
• Blackfriars Crown Court: ruled that insanity was unavailable for a section 2(1) harassment offence and dismissed the appeal against conviction and sentence.
• Highbury Corner Magistrates’ Court: convicted the appellant of harassment and imposed sentence.