Unfitness to plead - charge of murder - defence of provocation not open to defendantR v Grant (Heather): CA (Lord Justice Rose, Mr Justice Richards and Mr Justice Pitchford): 22 November 2001The defendant was charged with murder but was found by a jury, pursuant to section 4 of the Criminal Procedure (Insanity) Act 1964, to be unfit to plead.

Before a second jury was empanelled to decide, in accordance with section 4A of the 1964 Act (as inserted by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991), whether she had committed the act charged against her, it was submitted that she should be allowed to raise the defence of provocation, since that point had been left open in R v Antoine [2000] Gazette, 5 May 36; [2001] 1 AC 340.

The judge ruled against that submission.

The defendant appealed against the subsequent finding of the jury that she did the act of murder charged against her.Patrick Cosgrove QC and Philip Hindson, solicitor (instructed by Paul Dodds, Wallsend, Tyne and Wear) for the defendant.

Paul Batty QC and Anne Richardson (instructed by Crown Prosecution Service) for the Crown.

James Eadie (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department.Held, dismissing the appeal, that the defences of accident, mistake and self-defence which the House of Lords had held could be raised under section 4A, if there were objective evidence which raised them, all related to what was regarded as the actus reus of murder, notwithstanding that such defences almost invariably involved some consideration of the mental state of the defendant, whereas it was not open to the jury to consider issues of mens rea under section 4A(2) whatever the circumstances, within which were included the issues of lack of specific intent and diminished responsibility; that the same must apply to the defence of provocation; and that, accordingly, the judge's ruling was correct.

(WLR)