Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

A Long Motor Run on a Dark Night: Reconstructing HM Advocate v Ritchie

Document Cited authorities 13 Cited in Related
AuthorJenifer M Ross
DOI10.3366/elr.2010.0002
Published date01 May 2010
Date01 May 2010
Pages193-204
INTRODUCTION

In establishing the defence of automatism in Scots law, the five-judge court in Ross v HM Advocate1

1991 JC 210.

reinstated the authority of a decision from more than 60 years' earlier, HM Advocate v Ritchie.2

1926 JC 45.

 A key requirement of the defence, as stated by the High Court in Ross, is that the state of automatism must have been caused by a factor external to the accused, and Ritchie was approved on the basis that the accused's dissociation in that case had been caused by exhaust fumes from a motor car. Investigation in the court records and contemporary newspaper reports, however, shows that this was not the cause of the dissociation. This article discusses the factual and legal basis of the decision in Ritchie and considers the potential implications for the automatism defence THE DEFENCE OF AUTOMATISM

The automatism defence is often categorised by academic writers as negating the actus reus of a crime, since it requires proof of involuntary (or unconscious) conduct. Courts, however – in Scotland and elsewhere – treat it as negating the mens rea, since the defence, arising where apparently purposeful conduct has occurred, is concerned not with what the accused did but with whether his or her conscious mind was in control of the actions. Automatism is one of three defences based on abnormality of the mind – the others are insanity and diminished responsibility – and each has a different consequence: a successful plea of insanity results in a verdict of acquittal by reason of insanity; diminished responsibility, which only applies to murder, reduces the crime to culpable homicide; a successful plea of automatism results in a standard acquittal verdict. Although insanity and automatism require proof of the same mental state on the part of the accused, that of “total alienation of reason”,3

Brennan v HM Advocate 1977 JC 38; Ross v HM Advocate 1991 JC 210.

the cause, in the case of automatism, is not mental disorder. The essentials of automatism were laid down in Ross v HM Advocate,4

1991 JC 210.

 the case which, in 1991, established the defence

In Ross the accused had consumed a can of lager which, unknown to him, had been spiked by five or six tablets of temazepam and “a quantity” of LSD. Within half an hour he started to scream and lash out with a knife, causing severe injuries to a number of people and leading to, amongst others, seven charges of attempted murder. The trial judge, bound by the much criticised5

G H Gordon, “Automatism, insanity and intoxication: are unconscious acts defensible?” (1976) 21 JLSS 310. The decision is described “at least insofar as it overrules Ritchie” as “such a bad decision that it beggars description and defies analysis” (312). See also G Maher, “Sane but abnormal”, in S A M McLean (ed), Legal Issues in Medicine (1981) 191.

decision in HM Advocate v Cunningham,6

1963 JC 80.

 withdrew from the jury the defence that the accused might have been incapable of forming mens rea. In Cunningham the High Court had rejected as incompetent a defence of “temporary dissociation” by epileptic fugue on the basis that, unless based on legal insanity, the plea could only be relevant as to sentence.7

Cunningham concerned road traffic offences. If the charge had been murder, the defence, if successful, would allow a finding of diminished responsibility.

 In reaching this view the court overruled HM Advocate v Ritchie,8

1926 JC 45.

 a culpable homicide case in which the accused had been acquitted on a plea of “temporary dissociation”.9

1963 JC 80 at 83 per Lord Justice General Clyde.

 In spite of the criticism which the decision attracted, Cunningham was approved and followed by the appeal court in Carmichael v Boyle,10

1985 SLT 399.

 which concerned a plea of dissociation by reason of diabetic hypoglycaemia

In Ross a five-judge appeal court reinstated the authority of Ritchie and overruled Cunningham and Carmichael so far as was necessary to permit a restricted defence of automatism.11

1991 JC 210 at 217–218 and 222 per Lord Justice General Hope. The court did not overrule Cunningham on its own facts, but only insofar as it in turn had overruled Ritchie and prohibited a defence of automatism based on an external cause.

Such a defence, it was held, requires that the accused's state of mind was caused by an external factor which was neither self-induced nor foreseen, and which “must have resulted in a total alienation of reason amounting to a complete absence of self control”.12

At 218.

 All four of these requirements – total alienation of reason, external factor causation, lack of self-inducement and lack of foreseeability – were met in Ross's case

The requirements are designed to restrict the application of the defence. They reflect tensions present within this defence and also, to a lesser extent, in the related defences of insanity and diminished responsibility. The principal tension is between the need for public safety on the one hand and compassion for an accused who has not acted voluntarily and may therefore not be viewed as blameworthy on the other. Where the alienation of reason is caused by a factor external to the accused, it may be anticipated that it is unlikely to recur, so that public safety will not be put at risk by a complete acquittal. There may, however, be disagreement as to whether a particular causative factor is external or internal: for example, is it the epilepsy which has caused the fugue, or the stroboscopic light which immediately precipitated it? Further, the approach also assumes a connection between external causation and non-recurrence. In Ross, Lord Hope, having noted that defence counsel acknowledged that public policy might insist on a special defence of insanity where there was a “pathological condition which might recur”, went on to say that a defence of automatism was available only where there was “no continuing disorder of the mind or body which might lead to the recurrence of the disturbance of the appellant's mental faculties”.13

At 213, 217.

However, likelihood of recurrence/non-recurrence and internal/external cause are not necessarily components of a single test. Indeed, they were identified as two separate approaches – the “internal cause” and “continuing danger” approaches – by La Forest J in the Canadian Supreme Court decision of R v Parks.14

(1992) 95 DLR (4th) 27.

Both are based on the need to protect the public from possible repeated dangerous behaviour. In terms of the continuing danger approach, a risk of repeat behaviour would require the accused to be found to be insane; in terms of the internal cause approach, the key question would be whether or not the factor could be considered to be internal to the accused.15

Neither approach was found to be of assistance in R v Parks itself, in which the Canadian Supreme Court confirmed the original verdict of non-insane automatism in a case of homicide while sleep-walking: see 46–51.

 The judgment in Ross, however, treats external causation and non-recurrence as equivalent. <italic>RITCHIE</italic> AND THE EXTERNAL FACTOR

The first reported case in Scotland involving automatism was Simon Fraser,16

(1878) 4 Coup 70.

in which an accused with recurrent somnambulism was found guilty of the murder of his child by special verdict, which recounted that he killed the child in a state of unconsciousness and so was not responsible. Although the Crown did not move for sentence, the accused having given an undertaking to sleep alone, it is clearly a guilty verdict and not an acquittal – a compromise between compassion for the accused and a concern for public safety.17

It is unclear how the undertaking could be enforced.

 It is, however, HM Advocate v Ritchie18

1926 JC 45.

 – influential outside Scotland19

See R v Cottle [1958] NZLR 999; Bratty v Attorney-General for Northern Ireland [1963] AC...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT