FOCUS: Inside the landmark trial that gave the jury an extra choice...

Tuesday 23 February 2021

A recent trial in the Royal Court was the first time that a jury was given an option other than 'guilty' or 'not guilty', and opt for a 'special verdict'.

Under a provision in Jersey's 2016 Mental Health Law, the jury could have also concluded that the defendant, Robert Moon (42), was 'not criminally responsible', even if they agreed that he had committed the acts he was accused of.

It was the first time that this aspect of the law - which introduced the notion of a 'special verdict' in cases where mental illness is understood, or at least argued, to have played a role - was tested in the Royal Court.

In the end, Moon was found guilty to the two counts of grave and criminal assault and one of affray, but the trial was novel in having this untested extra verdict available to the jury. 

In the case of Moon, the charges related to an incident last May, when he pointed two spearguns at police officers during a two-hour standoff at his home in Richmond Road.

The trial was unusual in that there was general agreement among the prosecution and defence that he had committed the acts on the day, but his level of criminal responsibility was in question. 

Pictured: The recent Assize trial took place at the Royal Jersey Showground.

In short, Moon had pleaded ‘not guilty’ not because he denied the spearguns were pointed towards the police, but because he was suffering from mental disorder to such a substantial degree on the day that he shouldn’t be held criminally responsible. 

His defence was based on Article 72 of the 2016 law, which in many ways put into statute an important judgment that was made by the Bailiff of the time, Sir Philip Bailhache, in 2001.

In AG v Prior, Sir Philip rejected the long-held ‘insanity test’, which is still in force in English law today.

This test - known as the McNaghten Rules - was drawn up by English judges at the request of the House of Lords in 1843 following an uproar when David McNaghten was acquitted, on the grounds of insanity, of murdering the private secretary of the Prime Minister, Sir Robert Peel. 

This test has been in force in England and throughout much of the Commonwealth for more than 150 years and addressed the question: “In what terms ought the question be left to the jury as to the prisoner’s state of mind at the time when the act was committed?”

The judges held that “the jury ought to the told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proved to their satisfaction.” 

To establish a defence on the ground of insanity, it must be proved that, at the time of committing the act, the defendant was “labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong”.

But, despite its longevity, there have always been critics of the McNaghten Rules, and not just because of its Victorian language. They point out various complexities, such as the possibility that a person may know they are breaking the law but still be unable to prevent themselves doing so.

In AG v Prior, Sir Philip rejected these rules and instead adopted a definition - based on academic thinking and enshrined in other laws - that a person should be considered ‘insane’ if his “unsoundness of mind affected his criminal behaviour to such a substantial degree that the jury consider that he ought not to be found criminally responsible”.

Pictured: A judgment by former Bailiff Sir Philip Bailhache laid the foundations for Article 72 of Jersey’s 2018 Mental Health Law.

That view was enshrined in the 2016 law, which states that where the Court finds that the defendant carried out the act alleged; but at the time of carrying out the act, he or she was suffering from mental disorder to such a substantial degree that they ought not to be held criminally responsible for doing so, the Court should record a special verdict to that effect (“not criminally responsible”) and may either acquit the defendant or make such an order as it has power to make under Article 59.

Under Article 59, the Court can make a treatment order, appoint a ‘guardian’ - which can be a person or an authority - to take responsibility for the defendant, or make any order as the States Assembly chooses to approve by regulation. 

However, the jury were not told of these potential outcomes, despite Mr Moon’s defence advocate asking whether he could address them about the options, such as a treatment order.

This was declined by Deputy Bailiff Robert MacRae on the basis of a long-established practice that juries are not told of potential outcomes in trials. This is because it could influence a jury’s decision should they be aware of the potential sentence a defendant would get should they find him or her guilty.

Instead, the judge was clear in his summing up of the law, giving the jury a set of questions - a verbal equivalent of a ‘yes or no’ flow-chart that they would need to follow in order to reach one of three potential conclusions: ‘guilty’, ‘not guilty’ or ‘not criminally responsible’.

Having three options is rare for a jury, and could, by virtue of adding an extra choice, increase the risk of them being split and not reaching a verdict. A jury could, for instance, all be in agreement that a defendant did commit the act(s) but disagree as to whether he was criminally responsible or not. 

This could lead to a defendant being discharged despite all members of the jury agreeing that the defendant is responsible one way or the other.

To prevent that happening, a judge will first ask for a unanimous verdict but, if the jury can’t reach one after a number of hours, they are allowed to reach a majority verdict, usually of ten votes to two (or 11 to one). 

In the case of Moon, the jury reached a majority verdict (10-2 for all three counts) after just over six hours of deliberation. The majority were sure that Moon’s mental disorder on 15 May was not so substantial that he should not be held not criminally responsible for his actions. 

To reach that conclusion, the jury were not expected to be experts in mental health. Rather, they had to rely on the evidence presented at the trial, which came from a number of medical experts, as well as Moon himself, and decide whether his mental disorder was so substantial he was entitled to a special verdict.

In the end, they chose to convict Moon, who will be sentenced on 21 May. The Court has the power to send a defendant to a mental health unit for an indeterminate time but the Superior Number will make a decision about Moon on the day, based on the Crown and defence arguments, backed by various medical and other reports. 

Pictured top: Police responding to Moon wielding spearguns last May.