Victoria Goldsmith v R

In a trial of fact under section 4A of the Criminal Procedure (Insanity) Act 1964, the jury decides whether the defendant did the injurious act charged, rather than whether every element of criminal liability is proved. The required act must be identified by an offence-specific analysis. It can include a mental component where that component is inseparable from the outward act.

For possession with intent to supply under section 5(3) of the Misuse of Drugs Act 1971, possession comprises custody or control and knowledge of the controlled drug. Intent to supply is a further mens rea element. It is not part of the injurious act and is not a matter for the jury in a section 4A trial.

The appellant was charged with possessing crack cocaine with intent to supply. After medical evidence established that she was unfit to plead and stand trial, the Recorder at Isleworth Crown Court ordered a trial of fact under section 4A of the Criminal Procedure (Insanity) Act 1964.

The Recorder directed the jury to decide whether the appellant possessed crack cocaine, including whether she knew of its presence and had control over it. The jury was not asked whether she intended to supply it. It found by a majority that she had done the act charged, and a hospital order was made.

The appellant appealed, contending that intent to supply formed part of the act which the jury had to determine. The central issue was whether that intent was an inseparable component of the act charged under section 5(3) of the Misuse of Drugs Act 1971.

1. Appeal dismissed. The Recorder correctly directed the jury to determine possession of crack cocaine, but not whether the appellant intended to supply it.

2. A section 4A hearing is not a criminal trial determining guilt. Its purpose is to establish, to the criminal standard, whether the defendant did the injurious act or omission alleged, so that any consequent interference with liberty is justified. The inquiry concerns the actus reus, not the mens rea, subject to an offence-specific analysis of what constitutes the act.

3. The authorities recognise that no absolute line separates actus reus from mens rea. A mental component may form part of the act where it is directly linked to, and inseparable from, the outward conduct. Conversely, a state of mind which is not the reason for the outward conduct does not form part of the act. Objective evidence raising a defence to the actus reus must be negatived by the prosecution.

4. Possession under sections 5(2) and 5(3) of the Misuse of Drugs Act 1971 includes custody or control of the drug and knowledge that it exists and is in the defendant’s custody or control. That knowledge makes possession the relevant injurious act.

5. Intent to supply under section 5(3) is a further mental element. Although it is the gravamen of the completed offence, it is not part of the essence of the actus reus of possession and is not indissolubly linked to the possession. Applying R v Antoine, [2001] 1 AC 340, the jury could not enquire into that intention. The more nuanced statutory features considered in R v MB, [2012] EWCA Crim 770, and R (Young) v Central Criminal Court, [2002] EWHC 548 (Admin), did not arise here.

• Court of Appeal (Criminal Division). Dismissed the appeal and upheld the Recorder’s direction that the section 4A jury should determine possession, not intent to supply.
• Crown Court at Isleworth. Following a finding that the appellant was unfit to plead and stand trial, the Recorder ordered a trial of fact. The jury found that she had done the act charged. The hospital order was corrected to one under section 5(2)(a) of the Criminal Procedure (Insanity) Act 1964.