Loake v CPS

The defence of insanity is available on a charge of harassment contrary to Section 2(1) of the Protection from Harassment Act 1997.

L was convicted of harassment contrary to Section 2 of the Protection from Harassment Act 1997 ("the PFHA") on 13 October 2015 in the magistrates court. The harassment consisted principally of a very large number of text messages sent over a period of time to her husband, from whom she was separated.

L appealed against her conviction and sentence. L intended to contend before the Crown Court, as she had done below, that she was not guilty of the offence of harassment, by reason of her insanity.

The judge in the Crown Court ruled, as a preliminary matter of law, that the defence of insanity was not available for an offence of harassment, given the objective nature of s.1 (2) of the PFHA.

L made an application for a case to be stated. This was acceded to, and the question considered by the High court was:

"Is the defence of insanity available for a defendant charged with an offence of harassment, contrary to section 2(1) PFHA?"

The Crown argued that by creating the offence of harassment in the form that it did in Sections 1 and 2 of the PFHA, and in particular by providing an objective standard in Section 1(2) by specifying that the defendant ‘ought to know' his conduct amounts to harassment "if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other", Parliament must by implication be taken to have excluded the defence of insanity for the Section 2 offence. Parliament must be taken to have intended that a defendant should not escape criminal liability even if insane and unaware of the nature and quality of his acts. Rather, those acts are to be judged as amounting to harassment, if that is what a reasonable man would make of them, irrespective of how the defendant views them.

The Appellant argued that this defence is a different and more extensive basis for relieving a defendant of criminal liability than saying that the prosecution has not proved the essentials of the offence (including any mens rea requirement) because of the defendant's disease of the mind; and that once insanity is established, the existence or otherwise of mens rea is irrelevant.

Held:

Insanity is available for strict liability offences, and authority seemingly to the contrary is incorrect. It is not correct to regard insanity as analogous to a defendant not having the mens rea. It is possible for someone to have the mens rea for an offence whilst at the same time, because of a defect of reason arising from a disease of the mind, not know what he is doing is wrong.

Insanity is available as a defence to a person who possesses the mens rea for an offence, or strict liability offence, and this applies to the offence of harassment.

The Court therefore held that the defence of insanity is available for the offence of harassment.