Brian Andrew Hughes V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Cameron of Lochbroom,Lord Justice General,Lady Paton |
| Court | High Court of Justiciary |
| Date | 11 April 2001 |
| Docket Number | C228/01 |
| Published date | 03 May 2001 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Cameron of Lochbroom Lady Paton
| Appeal No: C228/01 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL by BRIAN ANDREW HUGHES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: D. Macleod; Ketchen & Stevens
Respondent: McCreadie, A.D.; Crown Agent
11 April 2001
[1]The appellant is Brian Andrew Hughes who has been indicted in the Sheriff Court at Glasgow on a charge of causing death by dangerous driving contrary to Section 1 of the Road Traffic Act 1988 as amended. The charge arises out of an incident on 2 January 1999 in which the appellant himself was badly injured. As a result he suffers from amnesia in respect of the actual episode and in respect of periods before and after the episode.
[2]At a continued first diet hearing in the Sheriff Court Mr. Macleod, who appeared for the appellant, sought to advance a plea in bar of trial based on the appellant's amnesia. The Sheriff repelled the plea and the appellant has appealed to this court under Section 62(1)(a) of the Criminal Procedure (Scotland) Act 1995, which makes provision for an appeal against a refusal to make a finding under Section 54(1) that the appellant is insane. A finding of insanity in terms of Section 54(1) can be made only on the written or oral evidence of two medical practitioners.
[3]The Sheriff had before him two reports from medical practitioners, one from Dr. Suddle and one from Dr. Ramsay, both of the Douglas Inch Clinic. It is unnecessary to consider their terms in detail since, for present purposes, there are only two matters of significance. First, both say that the appellant is sane and fit to plead. Secondly, as we have already indicated, they both show that the appellant is suffering from amnesia which makes it impossible for him to recall the events surrounding the accident. Before this court, Mr. Macleod argued on behalf of the appellant that, since the appellant was unable to remember what had happened, he would be unable to give his agents and counsel proper instructions as to his defence to the charge. He submitted that, in terms of the charge to the jury of Lord Wark in Wilson v. H. M. Advocate 1942 J.C. 75, which had been approved by this court in McLachlan v. H. M. Advocate 1997 J.C. 222, a person affected in this manner by amnesia was "insane" for the purposes of Section 54 of the 1995 Act.
[4]In Wilson the accused was deaf and dumb and not of normal intellect. Lord Wark pointed out to the jury that the accused's reason was not alienated and that he was not insane in that sense. But, said Lord Wark (1942 J.C. at p. 79),
"he may be insane for the purposes of the section of the Lunacy Act to which counsel referred, although his reason is not alienated, if his condition be such that he is unable either from mental defect or physical defect, or a combination of these, to tell his counsel what his defence is and instruct him so that he can appear and defend him; or if again, his condition of mind and body is such that he does not understand the proceedings which are going on when he is brought into Court upon his trial, and cannot intelligibly...
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