Carraher v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1946 |
| Docket Number | No. 16. |
| Date | 20 March 1946 |
| Court | High Court of Justiciary |
JC
Lord Justice-General. Lord Carmont. Ld. Jamieson. Ld. Stevenson. Lord Birnam.
Crime—Murder—Murder or culpable homicide—Mental unsoundness not amounting to insanity—"Psychopathic personality"—Effect of drunkenness in combination with mental condition—Whether responsibility diminished.
Review—Supplemental powers of Court—Power to appoint assessor—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 6 (e).
The Criminal Appeal (Scotland) Act, 1926, enacts:—Sec. 6. "For the purposes of this Act the Court may, if they think it necessary or expedient in the interest of justice—… (e) appoint any person with special expert knowledge to act as assessor to the Court in any case in which it appears to the Court that such special knowledge is required for the proper determination of the case."
The evidence led at the trial of a panel, charged with murder by stabbing, included evidence that the panel had taken a considerable amount of drink on the occasion in question, and also evidence of opinion by medical witnesses that he suffered from a psychopathic personality—a clinical condition which they said was associated with diminished responsibility. The presiding Judge, in the course of his directions to the jury on the issue of diminished responsibility, directed them to dismiss from their minds the evidence about drink unless they thought that the panel was so drunk as to be incapable of forming an intention to kill or do grievous bodily harm, but he left it to them to consider whether the medical evidence warranted a verdict of culpable homicide in place of a verdict of murder on the ground of diminished responsibility. The jury having found the panel guilty of murder, it was contended in an appeal that the jury had been misdirected on the issue of diminished responsibility in respect that they had not been allowed to consider the evidence of drink along with the medical evidence. It was also submitted that, as the mental condition known as psychopathic personality raised delicate medico-legal questions of responsibility, the Court should exercise its powers under sec. 6 (e) by appointing a psychiatrist to act as assessor.
The case was heard before a Full Bench, who, without appointing an assessor, dismissed the appeal; holding that the direction given to the jury on the question of drink was plainly in accordance with the decision in Kennedy v. H. M. Advocate, 1944 J. C. 171, and that a panel with regard to whom there was opinion evidence of psycopathic personality but who could not, apart from drink, be found to be suffering from diminished responsibility must be treated as having normal responsibility for his actions—the plea of diminished responsibility being an anomaly which should not be given wider scope than had hitherto been accorded to it in the decisions.
Observations on the Court's powers under sec. 6 (e) of the Criminal Appeal (Scotland) Act, 1926.
Patrick Carraher was charged on an indictment at the instance of His Majesty's Advocate which set forth that "on 23rd November 1945, in Taylor Street, Glasgow, near M'Aslin Street, you did assault John Gordon junior, 240 Aitken Street, Glasgow, and did stab him on the neck with a wood chisel or other similar instrument and you did murder him."
The panel was tried before Lord Russell and a jury at a sitting of the High Court at Glasgow on 28th February and 1st and 2nd March 1946.
In the course of the trial two witnesses for the defence, Dr Angus M'Niven and Dr William Blyth, gave evidence (which is more fully referred to in Lord Russell's charge) to the effect that the panel suffered from a psychopathic personality—a clinical condition which they said was associated with diminished responsibility and would be aggravated by drink. A witness for the Crown, Dr George Macdonald Scott, had earlier stated that in his opinion the panel had not a psychopathic personality. Other evidence had established that on the day in question the panel had taken a considerable amount of drink.
In the course of his charge to the jury Lord Russell gave the following directions on the issue of diminished responsibility:—
LORD RUSSELL.—… The remaining question is raised by the second line of defence put forward. It concerns what is called in law the impaired or diminished responsibility of a person who commits an act which, if he were a normal ordinary person, would be murder, but which, if he has diminished or impaired responsibility, may, if a jury so think, be reduced to culpable homicide, and on that, as you know, we heard conflicting evidence yesterday. I was invited by the Crown on this topic, on this element of defence, impaired responsibility, I was asked by the Crown to direct you that there is no evidence for your consideration upon which any such impaired responsibility on the accused's part could be established. I have given very anxious and prolonged consideration to that motion on the part of the Crown, and I have with some hesitation come to be of opinion that I might be usurping your function if I took it on myself to give you that direction and to take this defence out of your hands altogether, and therefore it will be necessary for you to consider such evidence as has been led in so far as it appears to establish the defence of impaired responsibility. Now, first of all, I want to make you quite au fait with what the law is on this matter. Diminished responsibility is a condition of mind, of judgment, which is said to make a man not fully accountable for his actions and not fully answerable to the law. Observe this: the accused is perfectly sane and fit to plead. There is no question about his sanity. If the accused were insane or were said to be insane, he never would be tried on a charge. There would be an inquiry before a Judge, and, if found to be insane, he would be ordered to be detained during His Majesty's pleasure, and during his detention would be given appropriate treatment, treatment appropriate to a man with a disease of the mind causing insanity. The accused, as I say, is perfectly sane, but our law does recognise, and it is a comparatively recent introduction into our law, that, if a man suffers from infirmity or aberration of mind or impairment of intellect to such an extent as not to be fully accountable for his actions, the result is to reduce the quality of the evidence in a case like this, which, if you think so, would be otherwise murder, to reduce it to culpable homicide.
Now, I am going to read you a passage from the Lord Justice-Clerk, delivered not many months ago in very similar circumstances in a charge to a jury where the same question was raised, and the Lord Justice-Clerk said this1: "I am going to read a sentence or two from the case"—and he mentions the case decided in 1923 by the late Lord Justice-Clerk (Alness)2—"because it seems to me to give as explicit and clear a statement of the sort of thing which you have to look for, as clear a statement as I...
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