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Fitness to plead and proving actus reus

Criminal lawyers should try to take some time to read the judgment of Sir Brian Leveson P in Wells and others [2015] EWCA 2 which involved conjoined appeals against decisions in hearings pursuant to section 4A Criminal Procedure (Insanity) Act 1964 which follows a finding that the Appellant was found to be unfit to plead. Whilst each point of appeal was different they were nevertheless concerned with the same broad issue as to what a jury was entitled to consider when determining whether he the Appellant had committed the actus reus of the offence. Thus, this involved a detailed analysis of the relevant authorities prior to the consideration of the points of appeal in each individual case (all of which were dismissed). This was undertaken by the formulation of two questions or issues. Firstly, the extent it is always possible or appropriate to separate actus reus from mens rea and the secondly the characterisation of the nature of objective evidence. The Court made reference to a 2010 consultation paper prepared by the Law Commission which said: "proving the act itself, without any regard to the mental state of the defendant, can in such cases result in significantly unfair or arbitrary decision making. The law has developed in a piecemeal manner as a result leading to uncertainty and inconsistency". The judgment of the Court in this case did not necessarily uphold that viewpoint.


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