H. M. Advocate v Wilson
| Jurisdiction | Scotland |
| Judgment Date | 27 February 1942 |
| Date | 27 February 1942 |
| Docket Number | No. 10. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Justice-Clerk. Ld. Fleming. Ld. Moncrieff. Lord Carmont. Lord Wark.
Procedure—Insanity in bar of trial—Question of panel's insanity raised by presiding judge in view of medical certificates—Case certified to High Court at Edinburgh after preliminary inquiry—High Court making no finding but reserving question for determination by jury at trial—Lunacy (Scotland) Act, 1857 (20 and 21 Vict. cap. 71), sec. 87.
Insanity—Insanity in bar of trial—Inability owing to mental or physical defect to instruct counsel or follow proceedings—Lunacy (Scotland) Act, 1857 (20 and 21 Vict. cap. 71), sec. 87.
The Lunacy (Scotland) Act, 1857, provides by sec. 87 that where a person charged under an indictment shall be found insane so that he cannot be tried upon that indictment, or if upon the trial of any person so indicted he shall appear to the jury to be insane, the Court before whom he shall be brought to be tried shall direct a finding to that effect to be recorded, and shall order, him to be kept in custody until His Majesty's pleasure shall be known.
At the commencement of a trial of an accused upon a charge of murder, although no plea of insanity in bar of trial had been put forward upon his behalf, the presiding Judge, in view of certain medical reports lodged by the Crown which suggested that there was some doubt as to the fitness of the accused to plead, held a preliminary inquiry before a jury was empanelled. The medical evidence led at the inquiry was to the effect that the accused was not only almost entirely deaf and dumb, but that he was also, in the opinion of some of the doctors, not of normal intellect. The case having been certified to the High Court at Edinburgh,—
Held (by a Court of five Judges), that the case should be tried by a jury, who, it might be upon fuller evidence than had been led at the preliminary inquiry, could competently determine the question of insanity under sec. 87 of the Act.
At the trial, Lord Wark directed the jury that the panel, although not insane in the sense that he was suffering from mental alienation, might be insane for the purposes of sec. 87 of the Lunacy (Scotland) Act, 1857, if his condition was such that either from mental or physical defect or a combination of both he could not instruct his counsel or understand and follow the proceedings at the trial.
On 24th February 1942 William Wilson appeared in the High Court at Glasgow before Lord Carmont, on an indictment charging him with robbery and murder.
A number of medical certificates had been lodged by the Crown, the effect of which were to suggest that there might be a question whether the accused was fit to plead, or whether he was insane within the meaning of section 87 of the Lunacy (Scotland) Act, 1857.1 No plea of insanity in bar of trial was put forward on
behalf of the accused. Before a jury was empanelled the presiding judge held a preliminary inquiry in order to ascertain whether the accused was fit to plead, or whether he was insane. A number of doctors gave evidence with regard to the mental condition of the accused, and their evidence disclosed that the accused was not only to all intents and purposes deaf and dumb, but that he was also, in the opinion of certain of them, not of normal intellect. The presiding judge also saw the accused along with counsel in a room outside the Court, where he had great difficulty in obtaining access to the accused's mind, even with the aid of an interpreter. As a result of his personal observation and of the medical evidence which had been led, the presiding judge certified the case to the High Court of Justiciary at Edinburgh.
The case was heard before the High Court, consisting of the Lord Justice-General, the Lord Justice-Clerk, Lord Fleming, Lord Moncreiff and Lord Carmont on 27th February 1942.
Counsel for the Crown drew the attention of the Court to the undernoted authorities,2 and stated that, as in the present case there was not only almost complete deafness and dumbness but also a state of feeblemindedness, it...
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