Attorney-General for Northern Ireland v Gallagher
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Goddard,Lord Tucker,Lord Denning,Lord Morris of Borth-Y-Gest |
| Judgment Date | 20 July 1961 |
| Judgment citation (vLex) | [1961] UKHL J0720-1 |
| Docket Number | Parliamentary Archives, HL/PO/JU/4/3/1077 |
| Court | House of Lords |
| Date | 20 July 1961 |
[1961] UKHL J0720-1
HOUSE OF LORDS
Lord Reid
Lord Goddard
Lord Tucker
Lord Denning
Lord Morris of Borth-y-Gest
Parliamentary Archives, HL/PO/JU/4/3/1077
my lords,
The Respondent, Patrick Gallagher, was convicted at Belfast of die murder of his wife on 7th September. 1960. There is no doubt that he killed her. The defence was insanity or alternatively that he was so drunk when he killed her as to be incapable of having any intent to kill her or do her grievous bodily harm. So there was no room for a verdict of not guilty: if the defence had been successful the verdict would have been guilty but insane or manslaughter.
The Respondent appealed to the Court of Criminal Appeal of Northern Ireland on the ground of misdirection of the jury by the trial judge, Lord MacDermott, L.C.J. That Court held that there had been misdirection and that the verdict of murder could not stand: they further held that in the circumstances they could not substitute either a verdict of guilty but insane or a verdict of manslaughter. They therefore directed a verdict of acquittal to be entered.
The Attorney-General for Northern Ireland 'thereupon applied under the provisions of the Administration of Justice Act, 1960, for a certificate that a point of law of general public importance was involved and for leave to appeal to this House. The Court granted a certificate but refused leave to appeal. Leave to appeal was later given by this House;
Before coming to the certificate I must set out the facts so far as they are necessary for its consideration. The Respondent had frequently used violence towards his wife, generally after taking drink. The medical evidence about his mental condition was conflicting but there was evidence that he is an aggressive psychopath, that this is a disease of the mind which is quiescent for considerable periods but manifests itself from time to time in explosive outbursts, and that taking drink is likely to cause an outburst. For some time before 7th September, 1960, the Respondent had been in a mental hospital. On that date he was allowed to go to Omagh. There he bought a knife and a bottle of whisky. He was seen cycling towards his home and two hours later he entered a neighbour's house under the influence of alcohol and said he had killed his wife. She was found dead, having sustained extensive and brutal injuries from the knife and a hammer. The Respondent had drunk the greater part of the bottle of whisky either before or after the killing or both.
I can now come to the certificate. The Court certified that "the following point of law of general public importance was involved in the said decision:—
'Whether a person in a psychopathic condition which is quiescent may become insane (within the meaning of the rules in M'Naghten's case 10 Cl. & F. 200) as the result of the voluntary consumption by him of intoxicating liquor, if the effect of that intoxicating liquor is to bring about an explosive outburst in the course of a mental disease although the disease was not itself caused by intoxicating liquor.'"
One of the Appellant's arguments submitted to the Court of Criminal Appeal and to this House was that, even if at the moment of killing his wife the Respondent was incapable of knowing the nature and quality of his act or knowing that he was doing wrong, and even if that was a consequence or manifestation of his mental disease—of his being a psychopath liable to explosive outbursts—yet the defence of insanity was not open to him because before taking the drink—when there was no defect in his reason—he had clearly evinced an intention to kill his wife and any temporary derangement of his reason at the time of the killing was the result of his own voluntary act in taking the drink.
In my opinion this is the point and the only point of law raised by the certificate. It is, T think, assumed in the certificate that during an "explosive outburst" the person's reason is dethroned to the extent required by the M'Naghten rules. Whether that assumption was justifiable on the evidence may be questionable, but the argument before the Court of Criminal Appeal appears to have proceeded on the footing that there was just sufficient evidence to entitle a jury to come to 'hat conclusion if so minded.
The first argument submitted by Counsel for the Respondent was that under the provisions of the 1960 Act this House had no power or jurisdiction to decide any question beyond that set out in the certificate. If a decision of that question is sufficient to dispose of the whole case, then this House can do that but not otherwise. Counsel then submitted that no matter how the question of law in the certificate is dealt with, that cannot lead to substituting another verdict for the verdict of acquittal entered by the Court ot Criminal Appeal. This must, I think, have been the view of that Court because the ground on which they refused to grant leave to appeal to this House was "that in the opinion of this Court a ruling on this point of law in favour of the Crown's contention would not lead to a reversal of the decision of this Court."
That argument depends on the proper construction of section 1 of the Administration of Justice Act. 1960. which is in the following terms:—
"1.—(1) Subject to the provisions of this section, an appeal shall lie to the House of Lords, at the instance of the defendant or the prosecutor.—
(a) from any decision of a Divisional Court of the Queen's Bench Division in a criminal cause or matter;
(b) from any decision of the Court of Criminal Appeal on an appeal to that court.
(2) No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House.
(3) Section five of the Appellate Jurisdiction Act, 1876 (which regulates the composition of the House of Lords for the hearing and determination of appeals) shall apply to the hearing and determination of an appeal or application for leave to appeal under this section, as it applies to the hearing and determination of an appeal under that Act; and any order of that House which provides for the hearing of such applications by a committee constituted in accordance with the said section five may direct that the decision of that committee shall be taken on behalf of the House.
(4) For the purpose of disposing of an appeal under this section the House of Lords may exercise any powers of the court below or may remit the case to that court.
(5) In this Act, unless the context otherwise requires, 'leave to appeal' means leave to appeal to the House of Lords under this section."
Subsection (1) allows an "appeal" from a "decision" of the court below, and subsection (4) authorises this House in "disposing of" the appeal to "exercise any powers of the court below". So far there is nothing to suggest that the powers and duties of this House in this matter are different from or more limited than its powers and duties in ordinary appeals.
The difficulty arises from subsection (2) which limits the grounds on which leave to appeal can be granted. First there must be a certificate by the court below that a point of law of general public importance is involved in the decision, that is, in the decision of the court below. And then comes the provision which causes the difficulty: before the court below or this House can grant leave it must appear that the point is one which "ought to be considered" by this House.
Taken by themselves these last words might seem to indicate that all that this House is to do is to consider (which must include deciding) the point of law. But that cannot be right because there would then be no reason for authorising this House to exercise "any powers of the court below". Moreover, a limited consultative jurisdiction of this kind would be a novelty in United Kingdom procedure, and if that were all that this House can do, the procedure could hardly be called an "appeal" from the "decision" of the court below. The point of law is not the decision— it is only "involved in the decision". The decision in (the present case was the substitution of a verdict of acquittal for the verdict of murder, and that is the decision from which the present appeal lies. The point certified by the Court of Criminal Appeal is certified by them as having been "involved in the decision".
To make the issue clearer let me suppose a case where the respondent in this House argued two points in the court below either of which if right entitled him to succeed. The court below having decided one in his favour might well say it was unnecessary to consider the second. Then, the first point having been certified, this House holds that the court below was wrong. What is then to happen? It cannot reasonably be supposed that Parliament intended that the respondent is to have no opportunity of having his second point considered so that his conviction must stand. So it must either be considered by this House or by the court below. It is true that subsection (4) authorises a remit to that court but that is only for the purpose of disposing of the appeal to this House. I can find nothing to authorise a remit to the court below directing it to reopen and rehear the case and come to a fresh decision. So in that case at least this House must go beyond the point certified and hear and decide the second point which may have no connection at all with the first.
If in such a case this House must exercise the whole of its ordinary functions on appeal, what is there to show that in some...
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