Every year the senior courts issue thousands of judgments, which our reporters assess for their legal significance as precedents. Only a few hundred are selected for reporting, and that is because they change or clarify the law in some way. While the other judgments are published, and may be of interest for various other reasons, they do not merit selection as precedents.

In this short series of commentaries our reporters and contributors have each chosen a case that they believe truly changed the legal landscape in 2024.

In the post below, our law reporter Philip Ridd comments on the Court of Appeal’s decision in R v Goldsmith (Victoria) [2024] EWCA Crim 780; [2024] 4 WLR 79, CA, which concerned the supply of drugs.

Fitness to plead

For centuries criminal justice has struggled with situations in which a defendant is unfit to plead, that is to say, that a defendant would, by reason of a mental condition, be unable to understand or take a proper part in a criminal trial. In 1991 the Criminal Procedure (Insanity) Act 1964 was amended to include section 4A by which, when a defendant is found unfit to plead, the trial may continue on the limited basis that the jury should consider whether “the accused did the act or made the omission charged against him”.

Now, criminal law distinguishes between the actus reus, the guilty act, and mens rea, the guilty mind. It may initially have been thought that this distinction was clear cut so that all the mental elements in a crime were included within the mens rea and therefore outside the jury’s functions in a section 4A case. But it was soon realised that that was not so, one of the leading cases being R v Antoine [2001] 1 AC 340.

Victoria Goldsmith was charged with the offence under section 5(3) of the Misuse of Drugs Act 1971 – in short, possession of a controlled drug with intent to supply. She was found unfit to plead, so the jury were put to the task of deciding whether she had committed the acts alleged against her. Her counsel contended that intent to supply formed part of the act charged, but the judge rejected that contention and the jury found that Ms Goldsmith had committed the acts alleged against her.

On appeal the Court of Appeal held that the judge had been right. It was recognised that there is no “bright line” between the actus reus and the mens rea so that some offences may involve mental elements being part of the actus reus, and it followed that in each case the offence charged needed careful analysis. Considering the section 5(3) Misuse of Drugs Act charge, the court concluded that there were mental elements in the actus reus in that, to be convicted, the defendant must know that the drugs existed and that they were in his or her possession, but Ms Goldsmith’s defence had not take issue on those points. The court held that intent to supply related only to the mens rea so it had been rightly excluded from the jury’s consideration.

Comment

Two comments may be offered. A short cut to the court’s conclusion might lie in the proposition that simple possession of controlled drugs is an offence under section 5(2), so the addition in section 5(3) of intent to supply was plainly a separate matter to create a more heinous offence. Secondly, if the point taken by the defence had been right, it would seem that section 4A would simply have been incapable of implementation in a case such as Ms Goldsmith’s.

Philip Ridd, Solicitor

Featured image: Photo by Kindel Media: handcuffs.