Michael from Manchester writes: I have been following with interest the recent case in which you defended the rabbi who was arrested in a cocaine den. It would appear from the newspaper reports that he suffered severe depression after the untimely death of his wife, which led him to take up illegal drugs. But is this a defence to criminal charges, and if so, how does it differ from insanity?
Michael, your question is a good one. It raises an issue which is absolutely fundamental to the English criminal law, which is a topic close to my heart. This is the so-called “mental element in crime”.
Put simply, all crimes, whether they are creations of the Common law (ie the ancient judge-made law) such as murder, or of statute such as supplying illegal drugs, can be divided up into two groups. The first group which comprises almost all the serious crimes with which a citizen will be familiar, requires proof of a specific guilty state of mind (called mens rea) before there can be a conviction. The crime of murder provides a useful example. It is no crime simply to perform the physical act of killing another, although this statement may sound surprising at first. The killing becomes murder only if the proven mental state of the defendant at the time of his act was either to kill, or to cause at least grievous bodily harm to his victim. Thus it is the mental intent of the defendant alone which distinguishes even a murder, the most serious of all crimes, from a mere accident.
So, if I drive my car deliberately at an old lady crossing the street and she dies, this is murder. If a wasp stings me and causes me to swerve into her, it is not.
It may surprise you to know that most criminal trials in my experience, and certainly the recent trial to which you refer, revolve around proving or disproving the mental intent of the accused. You may then ask, how is it possible to ascertain the true intent of an accused, since a man’s secret thoughts are impenetrable. The answer is by examining and drawing common sense inferences from all the surrounding circumstances, and that is exactly what we do during the criminal trial process. As one great Victorian judge put it: “The state of a man’s mind is as much a fact as the state of his stomach.”
To extend my previous example a little further, if it is proved at trial that the old lady was my aunt whose will left me a large inheritance, I may have problems. However, if there is a dead wasp found on the driver’s seat, I may not. Thus, when you analyse it correctly, it is all about evidence which goes to prove my mental intent, and thus whether or not I have committed murder.
I said there were two groups. The other is what we call “absolute offences”. These are almost entirely creatures of statute, often modern, and they encompass a wide range of lesser technical offences where the mental intent is irrelevant. For example, you will commit the offence of speeding, or dumping litter on the footpath, regardless of whether or not you even realised you were doing it.
Returning now to my client, Rabbi Chalomish, he was accused of possessing cocaine with intent to supply it to others, or in plain parlance, drug dealing. His defence was that he used and thus possessed cocaine himself, but never supplied it. The prosecution claimed the large quantity, its rare purity, and his lavish use of cash proved this intent. The jury however accepted his explanation that he bought for his own use in bulk as a wealthy man, that he liked and could afford the very best quality, and that he held his own cash to give large charitable donations within his community.
Or in more formal words, the jury found that he lacked the necessary mental intent for this crime.
As to his depression, this did not and could not ever afford a defence. An accused person either does or does not have the necessary mental intent for the crime. The depression could at best explain but could not excuse his conduct in illegally possessing the drug.
Nor could it amount to the defence of insanity. While insanity does exist in the criminal law as a defence, it is extremely rare, and is realistically limited to those relatively few unfortunates who would be described as lunatics. Nine impeccable character witnesses described the rabbi, by contrast, as a brilliant scholar, an astute businessman, and philanthropist.
As the judge himself said after verdict, this was an extraordinary case quite outside his extensive experience. Rabbis are human, but we must hope not to encounter its like again.
The above is not formal legal advice and is strictly without liability. Readers should consult a lawyer on any matter concerning them. All questions will be treated anonymously and all names changed. Jonathan Goldberg QC is a leading lawyer practising at Ely Place Chambers in London