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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R v Clarke [1971] EWCA Crim 5 (07 December 1971) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1971/5.html Cite as: [1972] 1 All ER 219, 136 JP 184, [1971] EWCA Crim 5, 56 Cr App Rep 225

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice,
		7th December 1971

THE LORD CHIEF JUSTICE: Mr. Justice Ackner will give the Judgment of the Court.

MR. JUSTICE ACKNER: On the 9th June 1971 Mrs. Clarke, a lady of 58 years, was tried at Leicester City Quarter Sessions for what is commonly known as shoplifting. There was nothing out of the ordinary either in relation to the facts of her case or in relation to the nature of her defence. The only unusual feature was the course which the learned Assistant Recorder unhappily decided to take after the conclusion of the evidence.

The facts are simple. It was common ground that on the 2nd March 1971 Mrs. Clarke went to the International Stores supermarket at Leicester. She there shopped with the aid of a wire basket provided by the store to enable her, not only to carry the goods of her choice, but also to keep them separate and apart from any other goods and thus enable the cashier readily to calculate the cost of the goods she had purchased from the Store. While she was in the store Mrs. Clarke selected various items, three of which consisted of a pound of butter, a jar of coffee and a jar of mincemeat. At some stage before she went to the check-out point Mrs. Clarke transferred those goods out of the wire basket and into her own bag so that when she presented her basket those three items were no longer in the wire basket and were not therefore paid for. Understandably enough it was alleged that these goods were secreted into Mrs. Clarke's own shopping bag with the object of stealing them and taking them out of the store without paying for them.

Mrs. Clarke's defence was that she had no intention of stealing these goods. She had not been feeling well on the morning in question nor for quite some time. She suffers from sugar diabetes. In the previous year she had gone down with flu and on the Friday previous to that occurrence her husband had broken his collar-bone. He had to look after her and was in fact, because of his own condition, off work for several months. What with one thing and another she had become very depressed. On a number of occasions she had been very forgetful, for example she had put sugar in the fridge instead of in the cupboard and the sweeping brush in the dustbin and then put the dirt where the brush should have been put. In her own words "everything seemed to get on top of me".

On the morning in question she woke up with a very bad head which persisted despite her taking her pills. Her husband rang up about 11 a.m. to say he would be home for lunch late. She put their meal in the oven on a low flame and went out to fetch the groceries. She had no recollection of putting these three items into her shopping bag and as for the jar of mincemeat neither she nor her husband ever ate this. In short her defence was that she had no intention to steal these articles, but in a moment of absent-mindedness had put them in her own shopping bag.

Had the matter rested there, there would have been no complications and the Assistant Recorder would no doubt have directed the jury to consider her explanation and ask themselves whether they were satisfied beyond reasonable doubt that she had the necessary intent to sustain the charge. However, to support the validity of her explanation medical evidence was called. These witnesses were her general practitioner and a consultant psychiatrist. These two gentlemen both spoke to the fact that she was suffering from depression, which one of them accepted to be a minor mental illness. The general practitioner described the symptoms. The patient feels a lack of energy - he finds it difficult to concentrate - he may be short tempered or absent-minded. The psychiatrist stated that it can produce states of absent-mindedness in which the patient would do things he would not normally do in periods of "confusion and memory lapses". All this evidence was entirely consistent with Mrs. Clarke's story.

Unfortunately the medical witnesses were pressed to, what it seems to us, an unreasonable degree to explain the workings of this particular illness. The psychiatrist stated that what happens in these cases is "that there is a patchy state of affairs, that the consciousness, if you like, goes off at times and comes on again, changing every few minutes and not in proper control of the patient."

The effect of this evidence upon the Assistant Recorder was to convince him that the defence was in truth a defence of "not guilty by reason of insanity" under the McNaughton rules. He was undoubtedly influenced to this decision by the evidence that the depression was an illness which he translated as meaning also a disease and by the fact that on the medical evidence, as he understood it, a possible explanation was that there had been a total lack of consciousness at the moment when the offence was committed.

In order to sustain a defence under the McNaughton rules it is necessary to show that the party accused was labouring under such a defect of reason from the disease of the mind as not to know the nature and quality of the act he was doing or if he did know, that he did not know that what he was doing was wrong.

It may be that on the evidence in this case the Assistant Recorder was entitled to the view the appellant suffered from a disease of the mind but we express no concluded view on that. However in our judgment the evidence fell very far short either of showing that she suffered from a defect of reason or that the consequences of that defect in reason, if any, were that she was unable to know the nature and quality of the act she was doing.

The McNaughton. rules relate to accused persons who by reason of a disease of the mind are deprived of the power of apply reasoning. They do not/and never have applied to those who retain the power of reasoning but who in moments of confusion or absent-mindedness fail to use their powers to the full.

The picture painted by the evidence was wholly consistent with this being a woman who retained her ordinary powers of reason but who was momentarily absent minded or confused and acted as she did by failing to concentrate properly on what she was doing and by failing adequately to use her mental powers.

Because the Assistant Recorder ruled that the defence put forward had to be put forward as a defence of insanity, although the medical evidence was to the effect that it was absurd to call anyone in Mrs. Clarke's condition insane, defending counsel felt constrained to advise his client to alter her plea from not guilty to guilty so as to avoid the disastrous consequences of her defence, as wrongly defined by the Assistant Recorder, succeeding.

Thus the appellant in this case ultimately pleaded guilty solely by reason of the Assistant Recorder's ruling. Since in the view of this Court the Assistant Recorder misstated the law this Court has jurisdiction to quash the conviction - see R v. Alexander 7 Criminal Appeal Reports, page 110. The conviction is accordingly quashed.