Jersey Unreported Judgments

Drugs - Mental Health Law - two applications in relation to nature of the enquiry and exclusion of interview

[2022]JRC030

Royal Court

(Samedi)

8 February 2022

Before     :

R. J. MacRae, Esq., Deputy Bailiff, sitting alone

The Attorney General

-v-

Wilson Aaron Richard Ibbet

C. R. Baglin Esq., Crown Advocate.

Advocate R. C. L. Morley-Kirk for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This short judgment deals with matters that needed to be considered prior to the hearing of a determination pursuant to Article 59 of the Mental Health (Jersey) Law 2016 ("the Law").  The background to this case is set out in the Court judgment dated 17 December 2021 reported at (AG v Ibbet [2021] JRC 314).  That judgment sets out the allegations made against the Defendant, the relevant provisions of the Law (including Article 59) and the evidence heard from two psychiatrists at the hearing that took place on 7 December 2021, and the Court's conclusion that the Defendant did not have the capacity to participate in a criminal trial; that the proceedings should not be adjourned and that the Court should determine pursuant to Article 59 of the Law whether or not the Defendant 'did in fact do the act with which he...is charged'. 

2.        Two questions arose for my determination prior to this matter being resolved by the Inferior Number.  First, the nature of the enquiry and, secondly, whether or not the Defendant's interview should be excluded under Article 76 of the Police Procedure and Criminal Evidence (Jersey) Law 2003 ("the 2003 Law"). 

3.        The first point arose in the following way.  Although the Court under Article 59 is required to determine whether the Defendant 'did the act', there are certain circumstances in which the Court may, nonetheless, be required to make findings as to the Defendant's state of mind which is normally inappropriate when making such determinations.  The defence noted that the charges the Defendant faced under Article 61 of the Customs and Excise (Jersey) Law 1999 were offences of being 'knowingly concerned' in the fraudulent evasion on prohibition of the importation of goods, namely controlled drugs.

4.        My attention was drawn to the judgment of Lord Bingham giving the decision of the House of Lords in R v H [2003] UKHL 1 in which he approved the remarks of Lord Hutton in R v Antoine [2001] 1 AC 340, where his Lordship considered the equivalent provision of the Criminal Procedure (Insanity) Act 1964, section 4(A), which provides that in circumstances where a defendant is unfit to plead, a jury may be empanelled in order to determine whether they are satisfied that the defendant 'did the act or made the emission charged against him as the offence'.  In such circumstances Lord Hutton said:

"The purpose of section 4A, in my opinion, is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea.  The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future.  I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or made an omission) which would constitute a crime if done (or made) with the requisite mens rea."

He went on to say:

"A number of learned authors have commented that it is difficult in some cases to distinguish precisely between the actus reus and the mens rea and that the actus reus can include a mental element.  In Smith & Hogan, Criminal Law, 9^th ed., p. 28 Professor Sir John Smith states:

"It is not always possible to separate actus reus from mens rea.  Sometimes a word which describes the actus reus, or part of it, implies a mental element."

5.        Although the Defendant is not now being subjected to a criminal trial, it is said on his behalf that proof of his knowledge is still important as he will not have been found to be 'knowingly concerned' in the fraudulent evasion on the importation of controlled drugs in any meaningful sense unless the Court considers his state of mind at the time.  Reference was made to the decision of the English Court of Appeal in R v B [2012] EWCA Crim 770 where the judgment of the Court was given by Aikens LJ.  That case concerned two charges of voyeurism contrary to the Sexual Offences Act 2003.  The jury found that the appellant had committed the act charged against him in respect of one of the two counts on the indictment, the appellant being unfit to be tried. 

6.        Counsel at first instance had contested the scope of the exercise which the tribunal of fact would need to undertake, i.e. what matters they would need to consider in order to be satisfied that the appellant did the act charged against him.  It was submitted that the jury would need to decide for themselves whether the appellant had observed the boys in question during a private act for the purpose of his sexual gratification.  The judge disagreed.  The Court of Appeal set aside the judge's ruling on this issue and quashed the determination of the jury. 

7.        At paragraph 58, Aikens LJ said: 

"The Law Commission's recent Consultation Paper on "Unfitness to Plead" also highlights the difficulty in separating what it calls the "conduct element" of an offence from the "fault element" of an offence. It points out, with obvious correctness, that the lawfulness or unlawfulness of what an accused does may depend on his state of mind. This must mean that the focus of any enquiry to decide what constitutes the "act" or "omission" of a particular offence for the purposes of a determination pursuant to section 4A(2) of the 1964 Act must be upon what Lord Hutton called in R v Antoine the "injurious act" or group of acts - or omissions, which would constitute a crime if committed with the necessary mens rea."

8.        When considering what constituted the 'act...charged against the defendant' for the purpose of section 4A of the 1964 Act when the offence concerned was voyeurism, the Court made the following helpful observations:

"62.  As a preliminary, we have decided that despite the widespread use in other cases of the Latin tags "actus reus" and "mens rea" as a means of isolating and defining what, for a particular offence, constitutes the "act...charged against[the defendant] as the offence" for the purposes of section 4A(2) of the 1964 Act, we would prefer not to do so. The Latin tags are no more precise than the English expressions. The statute uses ordinary English words and their meaning is a matter of interpretation of the statutory wording itself. Substituting imprecise terms in a foreign language does not facilitate the resolution of the present problem.

63.  Secondly, we note that the act of deliberately observing a person naked or in their underwear, even if they were in a private place, was not of itself criminal before the SOA 2003. Even if such an act was done with the purpose of obtaining sexual gratification there was no pre-existing statutory offence of "voyeurism", although there were examples of voyeuristic activity being charged as the common law offence of outraging public decency or insulting behaviour under section 5 of the Public Order Act. If we ask: what are the social mischiefs which the new offence of voyeurism was created to tackle, we think the answer must be, first, the anti-social nature of deliberate observation by a person of another doing intimate acts in private, where the purpose of the observation is to obtain sexual gratification for the observer and, secondly, the fact that this activity has been linked to more serious offending behaviour by the observer.

64.  It seems to us, therefore, that the link between deliberate observation and the purpose of sexual gratification of the observer is central to the statutory offence of voyeurism. To use Lord Hutton's phrase, it is that purpose which turns the deliberate observation of another doing an intimate act (such as undressing) in private into an "injurious act". We have to accept that enquiring into someone's purpose for doing something is to enquire into that person's state of mind when he did the relevant act. However, a person's state of mind is, of course, just as much a fact as the outward act of deliberate observation and, in this case at least, the creation of the state of mind must be the result of a positive thought process by the observer. For the offence of voyeurism, these two actions, the one aimed at the outside world and the other going on in the consciousness of the observer, have to go together; the deliberate observation must be done simultaneously with the specific, albeit subjective, purpose of obtaining sexual gratification.

65.  If that is so, then we must conclude that, in the case of an offence of voyeurism under section 67(1) of the SOA, the relevant "act...charged as the offence" of the purposes of section 4A(2) is that of deliberate observation of another doing a private act where the observer does so for the specific purpose of the observer obtaining sexual gratification. That omnibus activity is the "injurious act". Although the activity has two components, they are indissoluble; together they are the relevant "act"."

9.        It was said in this case that the Defendant's state of knowledge is inextricably linked to the act.  The Crown opposed this submission and said that the act of being concerned in the importation of prohibitive goods is, and can, be viewed as entirely separate without reference to the Defendant's state of mind.  Reference was made to the case of Hamilton and Owens v AG [2010] JLR 313 where the Court of Appeal noted that it was not necessary for the prosecution to prove that the defendant knew the precise nature of the goods that he imported - it is sufficient mens rea (paragraph 70) for a conviction if the defendant knows he is importing prohibited goods even though he does not know the exact category of prohibited goods.  This is correct but it does not really address the point that the defence make.  Although I have not found this an easy decision, on balance I prefer the defence argument and agree that this is a case where it is necessary to consider the Defendant's state of mind for the purpose of establishing whether or not 'did the acts with which...he is charged'.

10.      Each case will turn on its own facts and the interpretation of the relevant statutory provisions, if any, and accordingly my decision should not be regarded as setting a precedent as to the nature of the factual enquiry that the Court will need to embark upon in future cases. 

11.      As to the admissibility of the police interviews, of which there were three, the first two took place on 23^rd September 2020 after the first importation on 21^st September 2020.  The Defendant's father was present at both interviews as an appropriate adult.  On a subsequent date another interview took place in the presence of an appropriate adult and a mental health advocate.  The Defendant largely replied no comment to questions posed in that interview and no objection is taken to its contents. 

12.      It is said that the fact that the Defendant was subsequently assessed as suffering from a combination of various mental disorders, as referred to in the Court's previous judgment, would have affected him to a substantial degree at the time of his interviews.  It is said that in the circumstances there was a breach of Article 13 of the relevant code of practice under the 2003 Law.  In particular, reference was made to 13B of the Notes of Guidance which says:

"35.  'It is important to bear in mind that, although juveniles or persons who are mentally disordered or mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances, to provide information which is unreliable, misleading or self-incriminating.  Special care should therefore always be exercised in questioning such a person, and the appropriate adult involved, if there is any doubt about a person's age, mental state or capacity.  Because of the risk of unreliable evidence is it also important to obtain corroboration of any facts admitted wherever possible....."

It is submitted that the special care referred to in the paragraph above was not taken, and the defence contend that the evidence was unfairly obtained and accordingly the Court should exclude it under Article 76. 

13.      Having regard to the conduct of the interviews in this case (it was not suggested that the police officer should be cross-examined by way of a voir dire) I do not accept that, in all the circumstances in which the evidence was obtained, the admission of these interviews would serve to adversely affect the fairness of the proceedings and that the Court ought not to admit them.  In the course of the interviews, the Defendant gave accounts in respect of the packages he had received in the post.  He accepted that they had reached and were addressed to the proper address and labelled using the name he used as his Facebook identification.  Initially he said he was unable to help the police in relation to many of their questions.  But ultimately he confirmed that he was expecting the packages and knew that the contents might be illegal, in part because those who sent the packages had in the past asked him to sell controlled drugs on their behalf.  There is no evidence that the police knowingly breached the provisions of the code drawn to my attention or failed to take special care for the Defendant, having regard to the knowledge they had at the time of his needs.

14.      Accordingly, the application to exclude the interviews under Article 76 was refused. 

15.      I was not addressed on the reliability of the interviews under Article 74 of the 2003 Law and accordingly made no findings in relation to that issue.

Authorities

Mental Health (Jersey) Law 2016. 

AG v Ibbet [2021] JRC 314. 

Police Procedure and Criminal Evidence (Jersey) Law 2003. 

Customs and Excise (Jersey) Law 1999. 

Regina v H [2003] UKHL 1. 

R v Antoine [2001] 1 AC 340. 

Criminal Procedure (Insanity) Act 1964. 

R v B [2012] EWCA Crim 770. 

Sexual Offences Act 2003. 

Hamilton and Owens v AG [2010] JLR 313.