Lindsay v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 27 September 1996 |
| Date | 27 September 1996 |
| Docket Number | No. 5. |
| Court | High Court of Justiciary |
JC
L J-G Hope, Lords Milligan and Cameron of Lochbroom
Crime—Murder—Diminished responsibility—Whether onus of proof should be on pannel
Procedure—Solemn procedure—Trial—Judge's charge—Pannel charged with murder and pleading diminished responsibility—Whether trial judge erred in directing jury that onus of proving diminished responsibility rested on pannel—Whether miscarriage of justice
Procedure—Solemn procedure—Appeal—Law reform—No contradictory judicial authority on law stated clearly and consistently over the years—Whether appropriate to convene larger court to reconsider reform of earlier authorities
A pannel was tried for murder in which he pled diminished responsibility. The trial judge (Lord Hamilton), in keeping with earlier authorities, directed the jury that the onus of proof rested on the pannel to establish diminished responsibility on the balance of probabilities. On being convicted, the pannel appealed to the High Court of Justiciary and contended that the appeal court should convene a larger court in order to reconsider the earlier authorities.
Held that, as the pannel was seeking a reform of the law, when that law had been stated so clearly and consistently by judges in previous cases as it had been on the matter of onus, any reform which might be required had to be undertaken by Parliament, not the court; and appeal refused.
Observed (1) that it was more accurate to regard diminished responsibility as a mitigating factor rather than as a defence; and (2) that the court's function was to declare what the law was where it was in need of clarification or where there was a dispute about it in the authorities.
James Lindsay was tried on an indictment at the instance of the Right Honourable the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate on a charge which libelled murder. The pannel pled not guilty and the cause came to trial in the High Court of Justiciary on 1 February 1996 before Lord Hamilton and a jury. The pannel's defence was that of diminished responsibility.
In accordance with previous authorities, the trial judge directed the jury that the onus of proof on balance of probabilities regarding diminished responsibility rested with the pannel.1
On being convicted, the pannel appealed to the High Court of Justiciary on the ground that the earlier authorities should be reconsidered for which purpose a larger court should be convened.
Cases referred to:
HM Advocate v. BraithwaiteSC 1945 JC 55
HM Advocate v. Dingwall (Alex) (1867) 5 Irv 466
HM Advocate v. KiddSC 1960 JC 61
HM Advocate v. Savage 1923 JC 49
Kirkwood v. HM AdvocateSC 1939 JC 36
Lambie v. HM AdvocateSC 1973 JC 53
Ross v. HM AdvocateSC 1991 JC 210
Textbooks referred to:
Gordon, Criminal Law (2nd edn), paras 11-01 to 11-03
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David Lilburn V. Her Majesty's Advocate
...his responsibility are below normal in the sense of the legal requisites that I endeavoured to make plain to you." In Lindsay v HM Advocate 1997 JC 19 the court described the trial judge's direction to the same effect as "consistent with an unbroken line of authority". [3] Diminished respon......
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