Kirkwood v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 10 February 1939 |
| Date | 10 February 1939 |
| Docket Number | No. 5. |
| Court | High Court of Justiciary |
HIGH COURT.
Sentence—Murder—Culpable homicide—Diminished responsibility—Panel charged with murder pleading guilty to culpable homicide owing to diminished responsibility—Sentence of penal servitude for life—Whether sentence excessive.
At the trial of a panel, charged with the murder of a woman, the Crown accepted a plea of guilty of culpable homicide on the ground of the panel's diminished responsibility. The presiding Judge (the Lord Justice-Clerk), after alluding to the horrible circumstances of the crime and to the fact that it was impossible to assess the precise degree of the panel's responsibility, pronounced a sentence of penal servitude for life as being the only sentence commensurate with the crime and adequate in the public interest.
The panel appealed to the High Court on the ground that the sentence was excessive; and the case was sent to the Whole Court and was heard by all the Judges with the exception of the Lord Justice-Clerk and Lord Pitman, when it was contended on the panel's behalf (1) that the judge was bound, but had failed, to make an assessment between the guilt and the misfortune of the panel; (2) that the protection of the public was not a relevant consideration in passing sentence; and (3) that a life sentence would prejudice any prospect of the panel's mental restoration.
The Court dismissed the appeal; holding (1) that impaired responsibility is a circumstance which modifies the character of a crime, or justifies a modification of sentence, or does both; (2) that, although it may be impossible, and must be so where the evidence is insufficient as in the present case, to assess the degree of responsibility for the criminal act, the existence of responsibility cannot be disregarded in passing sentence; (3) that the protection of the public, which cannot be dissociated from the panel's own protection, is a relevant consideration; and (4), with regard to the effect of the sentence on the panel in this case, that his whole condition would be considered and reviewed from time to time by the proper authorities, who had power to control his treatment and order his eventual release, and that, to inform them of his past medical history, a copy of the evidence should be transmitted to the Prison Commissioners, a course which ought to be taken by the presiding judge in all similar cases.
James Boyd Kirkwood was charged on an indictment at the instance of His Majesty's Advocate which set forth that "on 6th or 7th August 1938, in the dwelling-house known as “Ormelie,” Corstorphine Road, Edinburgh, occupied by Sir William Thomson, you did assault Jean Ronald Powell, 10 Roseburn Place, Edinburgh, and did strike her on the head with a hammer or other blunt instrument, and did thrust the shaft of said hammer into her private parts to her severe internal injury, and did murder her."
Notice was given of a special defence that at the time of the acts charged the panel was insane and not responsible for his actions.
The panel was tried in the High Court at Edinburgh by the Lord Justice-Clerk and a jury on 8th November 1938. After medical evidence had been led by the Crown the panel's counsel tendered, and the Crown accepted, a plea of guilty of culpable homicide on the ground of diminished responsibility, and the panel was convicted of culpable homicide and sentenced to penal servitude for life.
The panel appealed to the High Court, on the ground that the sentence was excessive.
The appeal was heard by the Lord Justice-General, Lord Moncrieff and Lord Carmont on 15th December 1938, when it was remitted for hearing to a sitting of the Whole Court.
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