Where a defendant had been charged with an offence of voyeurism but had been found to be under a disability so that he was unfit to plead or to stand trial, the ingredients of “the act…charged against him as the offence”, for the purposes of section 4A(2) of the Criminal Procedure (Insanity) Act 1964, included a requirement to prove that his act had been for the purpose of sexual gratification.

The Court of Appeal (Criminal Division) so held when allowing an appeal by the defendant, B, pursuant to section 15 of the Criminal Appeal Act 1968, against a finding on 8 July 2011 in the Crown Court at St Albans (Judge Bright and a jury) that he had done the act charged against him, pursuant to section 4A(2) of the 1964 Act, namely voyeurism, contrary to section 67(1) of the Sexual Offences Act 2003.

Section 4A of the 1964 Act (as inserted and amended) provides: “(1) This section applies where … it is determined by a court that the accused is under a disability. (2) The trial shall not proceed or further proceed but it shall be determined by a jury … whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act … charged against him as the offence. …”

Section 67(1) of the 2003 Act provides: “A person commits an offence if— (a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and (b) he knows that the other person does not consent to being observed for his sexual gratification.”

AIKENS LJ said, in the reserved judgment of the court, that the defendant had been in a changing cubicle at a swimming pool next to a family cubicle where two mothers had been supervising their six-year-old sons as they changed into swimming trunks. The mothers alleged that whilst their sons had been naked the defendant’s head had appeared in the gap between the cubicle dividing panel and the floor. Officials had been alerted and the defendant had been arrested and interviewed by the police. He had said that he had been lying on his back in the adjoining cubicle because his back hurt. He had subsequently been charged with two counts of voyeurism, contrary to section 67(1) of the 2003 Act. The particulars of each offence stated that the defendant “for the purpose of sexual gratification, observed [X} doing a private act, knowing that {X] did not consent to being observed for [the defendant’s] sexual gratification” At the Plea and Case Management Hearing the judge had ruled that since the defendant suffered from a learning disability and autistic spectrum disorder he was not fit to plead or to stand trial and was thus under a disbility for the purpose of section 4A(1) of the 1964 Act. Subsequently the judge had ruled that since the defendant was unfit to plead, for the purposes of section 4A(2) of the 1964 Act, the Crown had to prove only that the defendant had observed the relevant boy doing a private act but that there was no requirement to prove that it was for the purpose of sexual gratification or that it was necessarily done knowing that the victim did not consent to being observed for sexual gratification.

The principal issue which arose was what, within section 4A(2) of the 1964 Act, constituted “…the act…charged against him as the offence”, when a defendant had been charged with two counts of voyeurism and he had been declared by the trial judge to be unfit to be tried by reason of disability. The Criminal Procedure (Insanity) Act 1964 maintained the distinction, established by earlier Acts, between the physical act or actions of the defendant and his state of mind at the time he carried them out. Their Lordships had considered a number of cases, including R v Antoine [2001] 1 AC 340, R v Grant [2002] QB 1030 and R (Young) v Central Criminal Court [2002] 2 Cr App R 178. In their Lordships’ judgment there were four elements which would have to be proved by the Crown in a normal criminal trial of the offence of voyeursim. The defendant had to “observe” another person doing a “private act”. “Observe” connoted a deliberate decision by the defendant to look at someone doing a “private” act, as opposed to an accidental, reckless or careless perception of someone doing such an act. The defendant also had to observe the other person doing a private act “for the purpose of “sexual gratification”; that meant the defendant’s sexual gratification not someone else’s. It seemed to be irrelevant whether any sexual gratification was actually obtained by the defendant, although proof that it had been would be evidence of the purpose of the deliberate observation. Lastly, the Crown had to prove that the defendant “knows that the other person does not consent to being observed for [the defendant’s] sexual gratification”. That involved proof of a specific state of mind of the defendant. The link between deliberate observation and the purpose of sexual gratification was central to the statutory offence of voyeurism. Enquiring into someone’s purpose for doing something was to enquire into that person’s state of mind when he did the relevant act, but a person’s state of mind was just as much a fact as the outward act of deliberate observation. For the offence of voyeurism, the two actions, one aimed at the outside world and the other going on in the consciousness of the observer, had to go together; the deliberate observation had to be done simultaneously with the specific, albeit subjective, purpose of obtaining sexual gratification. Accordingly, in the case of voyeursim, the “act…charged as the offence” for the purposes of section 4A(2) of the 1964 Act was that of deliberate observation of another doing a private act where the observer did so for the specific purpose of the observer obtaining sexual gratification. As for the observer’s knowledge that the person observed did not consent to being observed for the purposes of the observer’s sexual gratification, that was not directly linked to the outward component of the “act” and, accordingly, for the purposes of section 4A(2), that element of the offence was not part of the “act…charged as the offence” and was not something the jury would be concerned to determine. Accordingly, the judge’s ruling was wrong and the appeal would be allowed and the finding quashed.