B v REGINA

Factual and Procedural Background

The Appellant, aged 23 at the time of the incident and of previous good character, was charged with two counts of voyeurism contrary to section 67(1) of the Sexual Offences Act 2003 ("SOA"). The charges arose from allegations that the Appellant deliberately observed two young boys undressing in private cubicles at a sports centre. The Appellant was subsequently declared unfit to plead and stand trial due to a learning disability and autistic spectrum disorder, as determined by a Crown Court judge following expert psychiatric and psychological evidence.

Pursuant to section 4(5) and (6) of the Criminal Procedure (Insanity) Act 1964 (as amended), a jury was tasked with determining whether the Appellant had done "the act charged against him as the offence" with respect to each count. The jury found that the Appellant had committed the act charged in relation to one count but acquitted him on the other. Following this, the Crown Court judge imposed a two-year supervision order, a five-year Sexual Offences Prevention Order ("SOPO"), and a five-year requirement to register on the Sex Offenders' Register. The Appellant appealed against the jury's finding, the SOPO, and the registration order.

Legal Issues Presented

1. What constitutes "the act charged against [a defendant] as the offence" under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 when the offence charged is voyeurism contrary to section 67(1) of the SOA, in circumstances where the defendant is unfit to stand trial?
2. Whether expert evidence is necessary for the jury to properly determine, in the context of a defendant with a disability, whether the defendant deliberately observed the victims for the purpose of sexual gratification.
3. Whether it was appropriate for the Crown Court judge to impose a Sexual Offences Prevention Order given the findings and evidence before the court.

Arguments of the Parties

Appellant's Arguments

• The jury should have been instructed to consider whether the Appellant observed the victims "for the purpose of sexual gratification" as part of determining whether he had done "the act charged as the offence". This element, the Appellant contended, forms part of the act itself and cannot be separated as a mental element.
• Given the Appellant's disability, expert evidence was necessary to assist the jury in understanding his state of mind, particularly whether he was deliberately observing the victims for sexual gratification.
• The judge lacked sufficient material to justify making a SOPO, as there was no evidence that the Appellant posed a risk of serious sexual harm to the public.

Respondent's Arguments

• The judge's ruling and directions to the jury were correct in limiting their determination to whether the Appellant deliberately observed the victims doing a private act, without requiring proof of the purpose of sexual gratification.
• The issue of deliberate observation was a straightforward factual matter for the jury and did not require expert evidence.
• There was sufficient material to justify the imposition of a SOPO, and the judge's exercise of discretion in this regard was neither unreasonable nor irrational.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed statutory construction analysis of section 4A(2) of the Criminal Procedure (Insanity) Act 1964 and its application to voyeurism under section 67(1) of the SOA. It considered the legislative history and relevant case law, including the House of Lords' decision in R v Antoine, to interpret what constitutes "the act charged against [the defendant] as the offence" when a defendant is unfit to plead.

The Court rejected the trial judge's ruling that the jury needed only to determine whether the Appellant observed the victims doing a private act, without considering the purpose of sexual gratification. The Court held that the offence of voyeurism necessarily includes the element that the observation be made "for the purpose of sexual gratification." This purpose is a factual component of the act itself and thus forms part of "the act charged" for the purposes of section 4A(2). However, the element requiring the defendant's knowledge that the victim does not consent to being observed for sexual gratification was held to be a separate mental element not included in the act for section 4A(2) purposes.

The Court acknowledged the difficulty in separating actus reus and mens rea but emphasized that the statutory framework requires focusing on the injurious act itself, which in voyeurism includes the deliberate observation with the purpose of sexual gratification. The Court also considered the Appellant's disability and the role of expert evidence, concluding that while expert evidence on the Appellant's state of mind might be helpful in some cases, ultimately the question of deliberate observation for sexual gratification is one of fact for the jury.

Regarding the SOPO, the Court found that the Crown Court judge had failed to make a necessary finding that the order was required to protect the public from serious sexual harm. The evidence, including psychiatric reports, did not support such a finding, and the judge acknowledged the Appellant was not a sexual predator. Therefore, the imposition of the SOPO was unjustified.

Holding and Implications

The Court ALLOWED THE APPEAL against the jury's finding that the Appellant had done "the act charged against him" in respect of one count of voyeurism. The Court quashed that finding and directed that a verdict of acquittal be recorded pursuant to section 16(4) of the Criminal Appeal Act 1968. Due to statutory limitations, no retrial could be ordered.

The Court also held that the SOPO imposed on the Appellant was not supported by sufficient findings or evidence and would have been set aside on appeal even if the primary appeal had not succeeded.

The requirement for the Appellant to register on the Sex Offenders' Register for five years depends on the upheld findings; since the primary finding was quashed, the registration order is accordingly affected.

No new precedent is established beyond the clarification of the interpretation of "the act charged against him as the offence" in section 4A(2) cases involving voyeurism. The decision underscores the necessity of including the purpose of sexual gratification as part of the act in such determinations and highlights the limits of imposing preventative orders without clear findings of necessity based on serious sexual harm.