Goldsmith, R. v

Factual and Procedural Background

On 8 October 2022, police arrested the Appellant near a public house in The City after discovering controlled drugs, specifically Crack Cocaine and Heroin, in her possession and in the premises' lavatories. The Appellant was charged with multiple counts related to possession and possession with intent to supply Class A drugs. Following expert medical reports diagnosing the Appellant with schizoaffective disorder and concluding she was unfit to plead and stand trial, the court proceeded with a trial of the facts under section 4A of the Criminal Procedure (Insanity) Act 1964. The Appellant’s not guilty pleas were quashed except for the charge concerning possession with intent to supply Crack Cocaine, which was to proceed. The central legal question arose as to whether the jury, in such a trial, must consider the mental element of intent to supply or only the physical act of possession.

Legal Issues Presented

1. Whether, in a trial under section 4A of the Criminal Procedure (Insanity) Act 1964 concerning possession with intent to supply a controlled drug, the jury is required to consider only the physical act of possession or must also consider the defendant's intent to supply.
2. Whether the mental element of intent to supply forms part of the "act charged" under section 4A and thus falls within the jury’s consideration.

Arguments of the Parties

Appellant's Arguments

• The offence of possession with intent to supply requires proof of both possession and the intent to supply; intent is a fundamental element distinguishing it from simple possession.
• Policy considerations support treating those who possess drugs for personal use differently from those who intend to supply, so intent must form part of the act charged.
• The mental element of intent to supply can be objectively proven through external evidence such as communications, quantities, and associations, making it suitable for jury consideration.
• Excluding intent from the jury’s consideration risks convicting a defendant of a more serious offence without proof of all elements, leading to an unjust outcome.

Respondent's Arguments

• Precedent establishes that under section 4A, the jury’s focus is limited to whether the defendant did the physical act, not the mental element (mens rea) of the offence.
• The actus reus for possession with intent to supply is possession with knowledge of the drugs; the intent to supply is a separate mental element not to be considered in a section 4A trial.
• There is no evidence of the defendant’s mental state at the time, and it would be unsafe for the jury to speculate on intent.
• Any perceived unfairness is mitigated by the nature of the section 4A trial, which is a determination of act done, not a criminal conviction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Attorney-General's Reference (No. 3 of 1998) [2000] QB 401	Clarifies that in trials under section 4A, the jury must determine whether the defendant did the act charged, not the mens rea.	Used to establish that the jury’s role is limited to the actus reus, excluding mental elements in cases of unfitness to plead.
R v Antoine [2001] AC 340	Confirms that the jury in section 4A trials considers only the actus reus; mental elements like intent or diminished responsibility are excluded.	Supports the ruling that intent to supply is not part of the act charged for jury consideration in this case.
R v Grant [2001] EWCA Crim 2611	Applies Antoine to exclude defences involving mens rea in section 4A trials.	Reinforces that intent and provocation cannot be considered by the jury in a trial of the facts.
R (Young) v Central Criminal Court [2002] EWHC 548 (Admin)	Holds that where intention is part of the factual representation, the jury may consider intent as a fact under section 4A.	Distinguished on facts; intent in this drug offence is mens rea, not part of the act charged.
R v MB [2012] EWCA Crim 770	Recognizes that some offences may have acts that include mental elements, but mental elements not directly linked to the physical act are excluded.	Used to analyse whether intent to supply forms part of the act; court concluded it does not.
R v Wells & Others [2015] EWCA Crim 2	Clarifies the scope and purpose of section 4A trials and the distinction between actus reus and mens rea.	Supports the principle that section 4A trials are limited to determining the act done and do not involve assessing intent.
R v M (John) [2003] EWCA Crim 3452	Establishes the test for fitness to plead and the procedure for trials of the facts under section 4A.	Guides the procedural context for the trial of the facts in this case.
R v Lambert [2002] 2 AC 545	Defines the physical and mental elements of possession offences under the Misuse of Drugs Act 1971.	Applied to confirm that knowledge of possession was not in dispute in this case.

Court's Reasoning and Analysis

The court began by examining the statutory framework of section 4A of the Criminal Procedure (Insanity) Act 1964, which governs trials of the facts for defendants found unfit to plead. It emphasized that the jury’s role is to determine whether the defendant did the act or made the omission charged, not to consider mens rea. The court reviewed relevant case law, particularly Attorney-General's Reference (No. 3 of 1998) and R v Antoine, which establish that the mental element of an offence is excluded from the jury’s consideration in such trials.

The court acknowledged that some offences have acts that include mental elements, as seen in R v MB and R (Young) v Central Criminal Court. However, it distinguished those cases on their facts, noting that where mental elements are not directly linked to the physical act, they are not part of the act charged. Applying this principle to the offence of possession with intent to supply under section 5(3) of the Misuse of Drugs Act 1971, the court held that the act charged is possession with knowledge of the drugs, while intent to supply remains a separate mens rea element.

The court rejected the Appellant’s argument that intent to supply should be considered part of the act charged for the jury’s determination, finding no principled distinction between intent in murder and intent to supply in drug offences for the purposes of section 4A. It concluded that the jury’s role was confined to deciding whether the Appellant possessed the drugs with knowledge, which was not disputed.

Finally, the court emphasized the protective balance of section 4A proceedings, which are not criminal trials but safeguards ensuring that interference with liberty is justified by proof of the act done, even where intent might be obscured by mental incapacity.

Holding and Implications

The court DISMISSED THE APPEAL.

The holding confirms that in a trial under section 4A of the Criminal Procedure (Insanity) Act 1964 concerning possession with intent to supply a controlled drug, the jury’s determination is limited to the physical act of possession with knowledge. The mental element of intent to supply does not form part of the act charged and is excluded from consideration. This decision upholds the established legal framework distinguishing actus reus and mens rea in trials of the facts for defendants unfit to plead.

The direct effect is that the Appellant’s conviction for having done the act charged stands, with no requirement for the jury to assess intent. No new precedent was established beyond reaffirming existing principles and their application to possession with intent to supply offences under the Misuse of Drugs Act 1971.