1. A finding of fact hearing is a procedure which occurs when a defendant is deemed unfit to plead or stand trial. The procedure for determining fitness to plead in the Crown Court is set out in the Criminal Procedure (Insanity) Act 1964 and the test for fitness to plead is set out in the case of Pritchard (1836) 7 C & P 303.

2. The issue of whether a defendant is fit to enter a plea or stand trial ought to be investigated as soon as it arises and the determination of this can only be made by the Court on the evidence of two medical practitioners, one of whom is duly approved by the Secretary of State.

3. If the Defendant is not fit to stand trial, the jury are asked to determine whether the defendant ‘did the act or made the omission charged’. Commonly, these type of hearings are referred to as ‘a trial of fact’. On finding that the act was committed, the Crown Court can make a hospital order, supervision order, or order an absolute discharge.

4. The jury are only asked to examine whether the defendant has committed the actus reus (‘the act’) of the offence charged. The mental state of the defendant is often said to be irrelevant to the question of whether the defendant ‘did the act’, however, there are occasions where the jury can consider the mens rea of the offence, and this is far from straight forward.

5. The case of R v Antoine [2001] 1 AC 340 set out that the actus reus of an offence could not always be separated from all consideration of the mens rea. Lord Hutton set out that “if there was objective evidence which raised the issue of mistake or accident or self-defence, then the jury should not find the defendant did the “act” unless it was satisfied beyond reasonable doubt on all the evidence that the prosecution had negatived that defence”. He gave the following examples;

a. “if the defendant had struck another person with his fist and the blow had caused death, it would be open to the jury under section 4A(4) to acquit the defendant charged with manslaughter if a witness gave evidence that the victim had attacked the defendant with a knife before the defendant struck him.”
b. “Again, if a woman was charged with theft of a handbag and a witness gave evidence that on sitting down at a table in a restaurant the defendant had placed her own handbag on the floor and, on getting up to leave, picked up the handbag placed beside her by a woman at the next table, it would be open to the jury to acquit”

6. This principle has been further affirmed by Sir Leveson in the case of R v Wells [2015] EWCA Crim 2, [2015] MHLO 5. He set out that “if committed in self-defence, an assault was not unlawful; if an accident, the act was not deliberate; if a mistake, the quality of the act had been affected by the circumstances”. Sir Leveson queried whether it was always possible or appropriate to separate the actus reus from the mens rea. His view was that some offences would create more difficulty than others, underlining that a proper consideration of the “acts” required to prove an offence required an offence-specific consideration of its ingredients. What Sir Levenson explored further was the requirement for objective evidence of the prospective defence and that this could include independent eye-witness evidence, CCTV, cell site or expert forensic evidence.

7. More recently, in the case of R v Goldsmith [2024] EWCA Crim 780, the position has been reaffirmed. In that case, the court determined that with respect to possession with intent to supply, the jury should only be concerned with possession of an illegal drug. The intent element of the offence is the mens rea of the offence and not part of the actus reus (possession of the drug). Thus the curious consequence that a defendant labouring under a mental disorder can be found guilty of a more serious offence by virtue of the prosecution proving that the defendant had committed the offence of possessing a controlled drug.

8. In short, what practitioners need to be alive to in any finding of fact, is whether there is any objective evidence which could support a defence. Recently I represented a defendant alleged to have assaulted a series of police officers. There was body worn footage of the incident, from various angles. That footage provided objective evidence of the incident itself and so I was able to request that the issue of self defence could be left to the jury to consider (in a previous article I discuss self defence in cases against emergency workers and police officers). Whilst the prosecution objected, the application was successful and so the jury did in fact consider, as part of the trial of fact, whether the defendant had acted in self defence.

9. What the authorities seem clear on is that this has to be a ‘prospective’ defence and there is no caveat to suggest the defence must be any more than arguable. It is key therefore to make an early assessment of all pieces of objective evidence (and to request any further disclosure which may assist) as to whether there is this objective evidence of a prospective defence.

Amber Hobson, Barrister, Wilberforce Barristers