Diminished Responsibility—Satisfactory Developments
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb00681.x |
| Date | 01 January 1962 |
| Published date | 01 January 1962 |
NOTES
OF
CASES
DIMINISHED
RESPON8IBILJTY-SATISFACTORY
DEVELOPMENTS
SHOXTLY
after the
Byrne
case,l an appeal was heard by the Privy
Council in the case
of
Roue
V.
The
Queens
where the appellant
had been convicted
of
murder and sentenced to death by the
Supreme Court of the Bahama Islands after
a
trial before the
Chief Justice and a jury. The only way in which the appellant
could appeal was by way
of
special leave to Her Majesty in Council.
The Bahama Islands have by statute adopted the defence of
diminished responsibility in terms identical with those of section
2
of
the English Homicide Act,
1957.
The grounds of appeal were
that the jury were wrongly directed
on
the issue of diminished
responsibility.
The trial judge had directed them in accordance with Paul1 J.’s
direction in
R.
v.
Waldena
which had been approved in the Court
of
Criminal Appeal. This involved the notion that borderline
insanity was the essence of diminished responsibility. Unfortu-
nately the case was heard before the decision of the Court
of
Criminal Appeal in
R.
v.
Byrne,
which had reexamined the scope
of
the defence and had accepted a much wider basis for it. The
trial judge had then gone
on
to direct the
jury
on
the meaning of
M’Naughten insanity and told them this was a relevant considera-
tion in deciding whether the case was one
of
borderline insanity.
The Privy Council held that this was a misdirection in a serious
and vital matter.
In
reaching this conclusion their Lordships
approved the reasoning
of
the
Court
of
Criminal Appeal in the case
of
Byrne.
They repudiated the suggestion that the test
of
border-
line insanity would be appropriate in every case, remarking that
“
there may be cases
in
which the abnormality
of
mind relied upon
cannot readily be related to any of the generally recognised types
of
‘
insanity.’
”‘
The term
“
insanity
”
when used in this con.-
nection “must be used in its broad popular sense.” Moreover,
no
single formula could
be
devised
to
cover every case, but the
direction
to
the jury must always
be
related
to
the particular
evidence.
Another case which was decided recently
on
the subject
of
diminished responsibility attracted more public attention, though
it
is, as a matter of law, rather less important.
This
is the case
of
1
R.
v.
Byrne
[1960]
9
Q.B.
396; [1960]
3
W.L.R.
440;
[19603 3
All
E.R.
1.
1
[196l]
9
W.L.R.
606;
8160
reported
[lMl]
1
All
E.R.
859.
*
[1969]
1
W.L.R.
1008,1012; [l959] 3
All
E.R.
203.
See
(1961)
24
M.L.R.
164.
Loc.
cit.,
512.
88
84
THE
MODERN LAW REVIEW
VOL.
25
Terry
(the Worthing bank murder case). Here the Court of
Criminal Appeal upheld the conviction of Terry for murder notwith-
standing the bad practice adopted by the trial judge
in
handing
the jury a marked transcript of the medical evidence, and the
unsatisfactory way in which the defence of diminished responsibility
was dealt with by the judge in his summing-up to the jury.
These errors were redeemed in two ways:
on
the first point,
by the fact that the case was not an ordinary case but one where
at the end
of
the eight days’ proceedings “the real and only
question
”
was whether Terry was fooling his psychiatrist
or
was
genuine in regard
to
his story of delusions and strange feelingse;
on the second point, by the fact that the judge did call the
jury
back after they had retired and read to them various passages from
the two cases of
Byrne
and
Rose
which he had overlooked in his
original summing-up, which had been more on the lines
of
Spriggs,
and reading the section to the jury without further explanation
or
guidance.’
On this second point, the Court
of
Criminal Appeal, in upholding
the conviction, remarked that
‘(
ever since the case
of
Rose
v.
The Queen
in
the
Privy
Coun-
cil,
it
is
not su5cient mere1
to
refer
to
the words of the
section. That decision reielredT with approval
to
the interpreta-
tion that this court put
on
the section in
R.
v.
Byrne,
and in
the light
of
that interpretation
it
seems
to
this
court that it
would no longer
be
proper merely to put the section before
the
jury,
but that a
proper
explanation
of
the terms
of
the
section as interpreted in
R.
v.
Byrne
ought to be put before
the jury.”
So
at last
SpriggsO
is overruled, and
Terry
shows that we have
returned
to
sanity
in
regard to the interpretation and explanation
of
the section concerning diminished responsibility, while
Rose
shows that we have departed from M’Naughten insanity in this
connection.
J.
E.
HALL
WILLIAMS.
BANK
ADVANCES
FOB
WAQE8
THE
judgment of Buckley
J.
in
Re
E.
J.
Morel
(1934),
1,td.l
is based
on the special facts of the case, which do not seem clearly to include
the answer to the question whether the payment
of
the wages
cheques increased the overall indebtedness
of
the company to the
bank. There were three accounts-a no.
1
account in debit and
“frozen,” as the learned judge described it; the current no.
2
account, which was always in credit; and a wages account to which
5
[lQSl)
!?,
W.L.R.
961.
6
p.
867.
7
p.
965.
8
Ibid.
9
[1958]
1
Q.B.
270;
[1958]
2
W.L.R.
162;
(1958)
21
M.L.R.
318.
1
[1961]
3
W.L.R.
67.
JAX.
1962
NOTES
OF
CASES
85
wages cheques were debited and the balance on which was wiped
out by periodic transfers from account no.
2.
At the date of the
liquidation the no.
1
account was overdrawn
E1,839;
the no.
2
account was in credit
21,292
(or
21,544)
and the wages account
in debit
€1,371
(or
€1,623).
The alternative figures did not affect
the issue.
The facts which appear to have been regarded as the salient ones
were (i) that the no.
1
account was
"
frozen," (ii) that the balance
on
this account never increased, (iii) that the no.
2
account and the
wages account were regarded as one, the debit balance on the latter
normally being less than the credit balance on the no.
2
account.
The learned judge held that because the no.
1
account was
"
frozen
))
it must be disregarded in considering whether advances were made
for the payment of wages and that, even if this was wrong and all
three accounts could be combined, the resulting debit balance could
not be taken
to
include such advances, because they could not be
identified.
As
he put it,
"
In my view, the right solution
of
this problem is to treat
the balance which results from the set-off
as
being non-
preferential except to the extent that it can be demonstrated
that the credit is insufficient
to
discharge the preferential claim
in full."
This means, presumably, that the debits for wages were eliminated
by
payments to credit, as the result of the operation of the rule in
Clayton's
case,2 the wages and no.
2
accounts being treated as one.
It
is submitted that the question whether the bank had a right
of set-off between the no.
1
account and the no.
2
account is
immaterial; that the deciding factor should be whether the payment
of
the wages cheques during the period
for
which the preference
could be claimed in fact increased the overall indebtedness of the
company to the bank.
If
it did, there was surely an advance for
the purpose of meeting wages, as understood by section
819
of
the
Companies Act,
1948.
It
appeared from the evidence that there
was no overall increase and that it was not a condition
of
the
arrangement between the bank and the company that reductions in
the
no.
1
account debit balance should be made; but it is the
principle which was applied that may
be
called in question.
The view that a
''
frozen
))
account cannot be combined with
a
current account seems new. The learned judge
in
this case
assimilated
it
to
a loan account. Referring to
Bradford
Old Bank
v.
Sutcliffe,s
he said
:
''
that case demonstrates that there is an important difference
between a case where
a
customer has several current accounts
and a case where a customer has an account which is not a
current account and one
or
more current accounts in the bank.
2
Deoaynea
v.
Noble, Clayton's
Case
(1816)
1
Mar.
529.
3
[1918]
2
K.B.
833.
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