Bratty v Attorney-General for Northern Ireland
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Tucker,Lord Denning,Lord Morris of Borth-y-Gest,Lord Hodson |
| Judgment Date | 03 October 1961 |
| Judgment citation (vLex) | [1961] UKHL J1003-1 |
| Docket Number | Parliamentary Archives, HL/PO/JU/4/3/1079 |
| Court | House of Lords |
| Date | 03 October 1961 |
[1961] UKHL J1003-1
HOUSE OF LORDS
Lord Chancellor
Lord Tucker
Lord Denning
Lord Morris of Borth-y-Gest
Lord Hodson
Parliamentary Archives, HL/PO/JU/4/3/1079
my lords.
This is an appeal from the Court of Criminal Appeal in Northern Ireland, the judgment having been delivered by Lord MacDermott, L.C.J. On the 4th May, 1961, the Petitioner was convicted at the Downpatrick Assizes of the murder of Josephine Fitzsimmons on the 22nd December, 1960. The Petitioner appealed to the Court of Criminal Appeal and by Order dated 18th July, 1961, his appeal was dismissed. On the 27th July, 1961, counsel on behalf of the Petitioner applied, pursuant to the provisions of subsections (1) and (2) of section 1 and subsection (1) of section 2 of the Administration of Justice Act, 1960, for a certificate that a point of law of general public importance was involved in the decision of the Court of Criminal Appeal, and for leave to appeal to the House of Lords. The Court certified that the decision involved two points of law of general public importance, namely:
- Whether, his plea of insanity having been rejected by the jury, it was open to the accused to rely upon a defence of automatism: and 2. If the answer to (1) be in the affirmative, whether, on the evidence, the defence of automatism should have been left to the jury.
Further it appeared to the Court that the points of law so certified ought to be considered by the House of Lords, and the Court granted leave to appeal to this House.
Josephine Fitzsimmons, who was eighteen years old, lived with her widowed mother near Hillsborough in the Monument Road—a road which has been described as lonely and quiet. Her mother had a cousin, Miss Morrow, who resided with her brother at 44 Irwin Place, Donacloney, a village six or seven miles from Hillsborough. With them there lived the Petitioner, George Bratty, a young man of about twenty-six. He had been living with the Morrows for about twenty years. On the 22nd December, 1960, the Petitioner asked Miss Morrow if she would come with him in the car to visit the Fitzsimmons in order to deliver Christmas boxes for Mrs. Fitzsimmons and Josephine. The families were in the habit of seeing each other regularly and often. He had a black Ford Popular car in which he and Miss Morrow left Donacloney about 8.20 p.m. and arrived at Mrs. Fitzsimmons' house about 8.40. Miss Morrow went into the house and after the Petitioner had turned the car and got out Josephine came out and asked him to drive her into Hillsborough to deliver a message and get some sweets. She was seen in Hillsborough but neither she nor the Petitioner reached her home again. At 11.15 p.m. her dead body was found in Grove Road on the grass verge. She had been strangled by a stocking from her left leg. She had not been sexually assaulted but her underpants had been removed and were found with her left boot a short distance from the body on the grass verge. The Petitioner did not call back to take Miss Morrow home, but drove his car in the direction of Donacloney. When some two or three miles from Donacloney the car broke down and was left at the side of the road, an offer of a tow having been refused. He arrived at Donacloney on foot about 4 a.m. He was found by the police nearly an hour later in a garage at the bottom of the Morrows' garden and taken to the Police Station.
Shortly after 1 p.m. on the 23rd December the Petitioner was seen by Detective Head Constable Russell, Dr. Howard of the Forensic Science Laboratory being present. Russell asked what was the cause of two scratches on his neck. The Petitioner said: "It was a young girl did it." He was then cautioned and made the following statement:—
"Something terrible came over me. When I went up last night to the young girl's house-turned the car. I had the engine stopped and got out of her. I noticed her coming running out. She asked me to take her down to Hillsborough to get some sweets and deliver a message. I done so. and coming back again, just about halfways up the road from her house, I had some terrible feeling, and then a sort of a blackness. Just with that, I took one look at her, caught her, threw her right over the back of the seat into the back. I caught her with my two hands. When I caught her with my two hands I took one of her stockings and put it round her neck. I tightened the stocking. Afterwards I went down the road a piece—down the road to the left of her house—took her out of the car, and left her on the side of the road; drove on towards home. Halfways down the Ballygowan Road, the battery gave up on me. I got help later on to try and get her started. Couldn't get her started. Then we pushed her into side of a field gateway. I walked home afterwards. I saw a policeman. I went into the garage, and the police came. I didn't mean to do what really happened. Many's the time I took her down to Hillsborough at week-ends, and nothing like that happened until last night. I apologise for what happened. I don't think it would have happened only that terrible feeling came over me at the time. I don't know really what caused it at all. I think that's about all I can say."
In evidence the Petitioner later described the terrible feeling that came over him as a feeling that he wanted to put his arms round the girl. Without setting out any further evidence in detail, but having in mind particularly this description of the "terrible feeling". the scratches on the Petitioner's neck, and the removal of the underpants, I agree with the Court of Criminal Appeal when they say—
"That the Appellant killed Miss Fitzsimmons is not in dispute. On the evidence there can be no doubt at all that he made some sort of advance which was resisted, and that he attacked the girl, breaking a small bone in her neck and then caused her death by taking off one of her stockings and tying it tightly round her neck. It is also beyond question that, at some stage, the Appellant got the girl from the front passenger seat to the back of the car, and that it was he who removed the body from the car and dumped it on the grass verge."
In the opening speech for the defence at the trial the jury were asked to rind "one of three separate and completely independent verdicts"—
- The primary verdict requested which it was submitted was the proper one was that of Not Guilty on the basis that the Petitioner "was not master of the situation but that he was in a state of automatism". (The only cause suggested for his being in such a state was psychomotor epilepsy.) 2. Secondly, if the jury rejected the first defence, then it was submitted that the Petitioner was incapable of forming the particular intent to constitute murder, that is, an intent to kill or cause grievous bodily harm, on the ground that "his mental condition was so impaired and confused and he was so deficient in reason that he was not capable of forming this intent", and that the verdict should be manslaughter. (3) Thirdly, it was submitted that, if the jury were unable to come to either the first or second verdict, "at the material time the accused may be guilty but he was insane" on the ground that he did not know the nature and quality of his acts, or if he did, that he did not know that they were wrong.
On the first and second of these submissions it was claimed that the Petitioner should get the benefit of any doubt, the implication being that the Crown must prove that the acts of the Petitioner were conscious and voluntary acts.
The learned trial judge left the defence of insanity to the jury. The insanity alleged was that the Petitioner was suffering from an attack of psychomotor epilepsy and as a result had such a defect of reason as not to know the nature and quality of his acts or, if he did, not to know that they were wrong. As respects that defence the Court of Criminal Appeal said—
"There is now no complaint of the summing up as respects this defence, and it is no longer disputed that, on the material before them, the jury were fully entitled to reject it as in fact they did."
The learned judge refused to leave the first and second defences to the jury and it was from this refusal that the main grounds of the appeal to the Court of Criminal Appeal and ultimately to this House arise.
In his notice of appeal to the Court of Criminal Appeal the Petitioner's first ground was stated in these words—
"The learned trial judge was wrong in law in failing to leave to the jury the issue as to whether the killing was committed by the Appellant in a state of automatism and whether his actions resulting in the said killing were voluntary or conscious."
Automatism was defined by the Court of Criminal Appeal in this case "as connoting the state of a person who, though capable of action, is not conscious of what he is doing … It means unconscious involuntary action, and it is a defence because the mind does not go with what is being done."
This is very like the words of the learned President of the Court of Appeal of New Zealand in ( R. v. Cottle [1958] N.Z.L.R. 999 at p. 1020) when he said—
"With respect, I would myself prefer to explain automatism simply as action without any knowledge of acting, or action without any consciousness of what is being done."
The first portion of the argument before them that "automatism" should have been left to the jury was summarised by the Court of Criminal Appeal as being that the whole of the evidence on the issue of insanity was relevant on the issue whether automatism itself existed however it was caused; in view of the onus being on the defence to show on a preponderance of probability that the necessary constituents of the M'Naghten formula were present, it was therefore submitted that, although the evidence might have failed to prove some constituent of...
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