Practice and Procedure


PUBLISHED May 9, 2012

Trial - Fitness to plead - Voyeurism - Defendant suffering from autistic spectrum disorder

R v Burke: CA (Crim) (Lord Justice Aikens, Mr Justice Blake (Recorder of Redbridge)): 20 April 2012

In April 2010, two young mothers, with their six-year-old sons, were at a sports centre. They used the family changing rooms, which had cubicles. There was a gap between the bottom of the panels which separated the cubicles and the floor (the gap). In each case, the mother alleged that, while her son was changing into his swimming trunks, the defendant's head had appeared in the gap and had looked up at her son who had been naked at the time. Officials were alerted and the defendant was arrested.

In interview, he stated that he was lying on his back in the adjoining cubicle because his back hurt. The defendant was subsequently charged with two counts of voyeurism contrary to section 67(1) of the Sexual Offences Act 2003 (the 2003 act). It became apparent that the defendant suffered from a learning disability and an autistic spectrum disorder in the form of Asperger's syndrome and the judge subsequently ruled that the defendant was not fit to plead or to stand trial (the fitness-to-plead ruling). Following the fitness-to-plead ruling, counsel made submissions as to the scope of the exercise which the jury would have to undertake pursuant to section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (the 1964 act) in order to decide whether they were satisfied that, in respect of each of the counts in relation to which the defendant was to have been tried, he 'did the act… charged against him as the offence'.

The judge ruled that all that was required was for the prosecution to prove that the defendant had, in each case, observed the boy doing a private act and that it was not necessary to prove either that it had been for the purpose of sexual gratification, or that it had necessarily been done knowing that the victim in each case had not consented to being observed for sexual gratification. He gave a direction to the jury to that effect and further stated that the jury were not concerned to decide what had been going on in the defendant's head at the time he did whatever they found that he had been engaged in doing. The jury subsequently determined that the defendant had committed 'the act charged against him as the offence' in respect of one of the counts of voyeurism (the finding). He was acquitted in relation to the other count.

The judge subsequently imposed on the defendant a two year supervision order and a sexual offences prevention order for a period of five years (the SOPO). The defendant was also ordered to register on the sex offenders register for five years (the registration order). The defendant appealed against: (i) the finding; (ii) the SOPO; and (iii) the registration order.

As to the finding, he submitted, inter alia, that the judge had been wrong to limit the scope of the jury's investigation to the issue of whether the defendant had observed either boy doing a private act. The jury had been obliged to determine whether the defendant had been observing the boys doing a private act for the purpose of sexual gratification, as that element was a part of the 'act' of the offence of which the defendant had been charged and could not be divorced as being an independent mental element. The principal issue that fell to be determined was what, within section 4A(2) of the 1964 act (as amended), constituted 'the act… charged against him as the offence' when a defendant had been charged on two counts of voyeurism and had been declared by the trial judge to be unfit to be tried by reason of disability pursuant to sections 4(5) and (6) of the 1964 act. Consideration was given, inter alia, to section 16(4) of the Criminal Appeal Act 1968. The appeal would be allowed.

In the case of an offence of voyeurism under section 67(1) of the 2003 act, the relevant 'act… charged as the offence' for the purposes of section 4A(2) of the 1964 act was that of deliberate observation of another doing a private act where the observer had done so for the specific purpose of the observer obtaining sexual gratification. Although the activity had two components, they were indissoluble; together they were the relevant 'act'. Although a person observing another doing a private act could be regarded as an unpleasant nuisance, there was not the same pressing social need to protect the public from him as there would have been if it had been proven that the observation had been done for the specific purpose of the observer's sexual gratification. As for the further element in the offence of voyeurism, the observer's knowledge that the person observed did not consent to being observed for the purposes of the observer's sexual gratification, that was not directly linked to the outward component of the 'act'. It referred to the state of mind that the observer had to have, but was not the reason for the observation.

Accordingly, for the purposes of section 4A(2), that element of the offence was not a part of the 'act… charged as the offence' and so was not something that the jury would be concerned to determine (see [65], [66], [67] of the judgment). The link between deliberate observation and the purpose of sexual gratification of the observer was central to the statutory offence of voyeurism. It was that purpose which turned the deliberate observation of another doing an intimate act (such as undressing) in private into an 'injurious' act. Enquiring into someone's purpose for doing something was to enquire into that person's state of mind when he had done the relevant act.

However, a person's state of mind was just as much a fact as the outward act of deliberate observation and, in the instant case at least, the creation of the state of mind had to be the result of a positive thought process by the observer. For the offence of voyeurism, those two actions, the one aimed at the outside world and the other going on in the consciousness of the observer had to go together; the deliberate observation had to be done simultaneously with the specific, albeit subjective, purpose of obtaining sexual gratification (see [64] of the judgment).

On the facts of the instant case, the judge's ruling that the jury need only determine whether the defendant had deliberately observed each of the two boys undressing in their private cubicle had been wrong as a matter of law. So too had been his direction to the jury to the same effect. Accordingly, the finding had been based on a wrong direction of law and the determination had to be unsafe (see [69] of the judgment). The finding would be quashed and a verdict of acquittal would be recorded (see [70], [79] of the judgment).

Per curiam: 'In view of the fact that there is no statutory power to consider whether to order a retrial, given the terms of section 16(4) of the 1968 act, and also because there may be public concern about the outcome of this appeal, we feel we should emphasise four things: first, even on the limited directions of the judge, the jury determined that they were not satisfied that the appellant did deliberately look at one of the two young boys.

'Second, as for the other boy, there was no finding whatsoever that the appellant observed the boy for the purpose of the appellant's sexual gratification. Third, neither the report writers nor the judge considered the appellant to be, in any way, a sexual predator. Indeed, the judge went out of his way to say the opposite. Fourth, the appellant is - and is entitled to be treated as - an autistic young man who has had and continues to have a good character' (see [79] of the judgment).

Patricia May (instructed by Wheldon Law) for the defendant; Alison Ginn (instructed by the Crown Prosecution Service) for the Crown.