Brennan v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 03 June 1977 |
| Date | 03 June 1977 |
| Docket Number | No. 7. |
| Court | High Court of Justiciary |
FULL BENCH.
L.J.-G. Emslie, L.J.-C. Wheatley, Lords Cameron, Kissen, Avonside, Thomson and Ross.
Crime—Murder—Special defence of insanity at the time caused by self-induced intoxication.
Crime—Murder—Whether diminished responsibility through self-induced intoxication.
Crime—Murder—Intention to kill.
A youth was charged with the murder of his father by stabbing him with a knife. To this charge a special defence of insanity was lodged. It was contended that the appellant was so intoxicated by the voluntary consumption of drink and the drug LSD (a hallucinogenic drug) that at the time of the alleged crime he was insane within the meaning of the law. It was contended that in any event the evidence of self-induced intoxication was such as to entitle the jury to hold that the quality of the crime should be reduced from murder to culpable homicide. The trial Judge in his charge to the jury withdrew the special defence from their consideration and directed them that the evidence of the appellant's state of intoxication did not entitle them to return a verdict of culpable homicide. The appellant was convicted of murder, and appealed.
Held by a Full Bench of seven Judges (1) that in the law of Scotland a person who voluntarily and deliberately consumes known intoxicants, including drink or drugs, of whatever quantity, for their intoxicating effects, whether these effects are fully foreseen or not, cannot rely on the resulting intoxication as the foundation of a special defence of insanity at the time; (2) that insanity requires proof of total alienation of reason in relation to the act charged as the result of mental illness, mental disease or defect or unsoundness of mind; (3) that the defence of diminished responsibility cannot, any more than the special defence of insanity, be established upon mere proof of the transitory effects upon the mind of self-induced intoxication; (4) that the only distinction between insanity and the state of diminished responsibility is that for the latter state to be established something less than total alienation of reason will suffice; (5) that evidence of the effects of self-induced intoxication, by itself, is not by the law of Scotland admitted as a foundation for a plea of diminished responsibility; and appeal refused. Authorities considered.
H. M. Advocate v. Campbell 1921 J.C. 1 andKennedy v. H. M. AdvocateSC1944 J.C. 171overruled.
D.P.P. v. BeardELR [1920] A.C. 479 disapproved.
Ian Brennan went to trial on indictment at the High Court at Glasgow on 10th December 1976. The indictment set forth that "on 26th September 1976, you did stab Joseph Brennan with a knife or similar instrument and you did murder him." A special defence of insanity was lodged on behalf of the appellant. After trial before Lord Wylie and a jury, the appellant was convicted on 11th December 1976. In the course of the trial there was evidence that the appellant killed his father on the evening of 26th September 1976 by stabbing him in the chest with a knife. This incident took place at the appellant's mother's house after a quarrel between the appellant and his father about the playing of a gramophone record and during a scuffle between the two men. In the course of the day the appellant had voluntarily consumed between 20 and 25 pints of beer, and about half an hour before the killing had taken in addition a microdot of LSD, a hallucinogenic drug.
It was contended for the appellant that, at the time of the alleged crime, he was so intoxicated by the consumption of drink and drug that he was insane in law. There was sufficient evidence on the question to allow it to be left to the jury to decide the question of sanity. In any event, the evidence of self-induced intoxication was such as to entitle the jury to hold that the quality of the crime should be reduced from murder to culpable homicide. Lord Wylie, in charging the jury, withdrew the special defence of insanity from them, however, and directed them that the evidence of the appellant's state of intoxication did not entitle them on that basis to return a verdict of culpable homicide.
The appellant appealed against conviction. The case was heard before a Full Bench of the High Court of Justiciary (consisting of the Lord Justice-General, the Lord Justice-Clerk, Lords Cameron, Kissen, Avonside, Thomson and Ross) on 12th and 13th May 1977.
At advising on 3rd June 1977 the opinion of the Court was delivered by the Lord Justice-General.
LORD JUSTICE-GENERAL (Emslie).—The appellant went to trial in the High Court at Glasgow. The principal charge was of the murder of his father by stabbing him with a knife. To this charge the appellant lodged a special defence of insanity at the time and sought to insist in it. In this he was no doubt encouraged by the charge of the trial Judge in H. M. Advocate v. Aitken 1975 S.L.T. (Notes) 86, and the proposition on which this special defence was conceived was that at the time of the alleged crime the appellant was so intoxicated by the voluntary consumption of drink or a drug or both, as to be insane within the meaning of the law. It was contended in any event on behalf of the appellant that the evidence of self-induced intoxication was such as to entitle the jury to hold that the quality of the appellant's crime should be reduced from murder to culpable homicide. The trial Judge, however, in charging the jury withdrew the special defence from their consideration and directed them that the evidence of the appellant's state of intoxication did not entitle them to return a verdict of culpable homicide. In the result the outcome of the trial was conviction of the appellant of murder.
In this appeal the first submission for the appellant was that the withdrawal of the special defence amounted to a misdirection and that the conviction should be quashed.
There was ample evidence that the appellant killed his father on the evening of 26th September 1976 by stabbing him with a knife in the chest. This incident took place in the appellant's mother's house and it appears that the appellant and his father had been quarrelling about a gramophone record and that the stabbing occurred during a scuffle between the two men. In the course of the day the appellant had consumed between 20 and 25 pints of beer, and about half an hour before the killing, had taken in addition, a microdot of LSD, a hallucinogenic drug. In consuming this drink and the drug the appellant was fully aware of their probable and unpredictable effects and indeed he consumed them for these effects in the knowledge that either or both together might deprive him of his ability to control his actions. What was said was that the appellant, at the time he stabbed his father, was so much under the influence of the drink and the drug he had taken as to be insane. This case accordingly is one in which the state of the appellant's mind was, according to the evidence, attributable merely to the transitory effects of alcohol and LSD deliberately consumed by the appellant with knowledge, from his previous experience of both, that they were bound to intoxicate him. It will be seen therefore that the first submission for the appellant raises the single and important question whether a temporary impairment of mental faculties resulting merely from self-induced intoxication may, in our law, amount to insanity for the purposes of a special defence such as the appellant tabled in this case. It is not suggested that so far as criminal responsibility is concerned the law makes any distinction between intoxication by drink and drugs. No such distinction is made in the Law of England either [seeReg. v. LipmanELR [1970] 1 Q.B. 152]. All we say accordingly in this connection is that self-induced intoxication due to drink has been increasingly a factor in crimes of violence committed in Scotland, and as Lord Elwyn-Jones, L.C., said in D.P.P. v. MajewskiWLR [1976] 2 W.L.R. 623: "But voluntary drug-taking with the potential and actual dangers to others it may cause has added a new dimension to the old problem with which the courts have had to deal in their endeavour to maintain order and to keep public and private violence under control. To achieve this is the prime purpose of the criminal law."
In the development of the first submission the particular proposition was that if a person suffers total alienation of reason as the result of self-induced intoxication he will be regarded by our law as insane and thus free from any criminal responsibility. On the assumption that this proposition was sound it was then argued that there was evidence on which a jury would have been entitled to hold, on a balance of probability, that the special defence had...
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