Mad or Bad? ‘Appreciating’ Insanity Scott Henry Sneddon MacKay v Her Majesty’s Advocate [2017] HCJAC 44
| Date | 01 October 2017 |
| Published date | 01 October 2017 |
| DOI | 10.1177/0022018317735732 |
| Subject Matter | High Court of Justiciary |
High Court of Justiciary
Mad or Bad? ‘Appreciating’ Insanity
Scott Henry Sneddon MacKay vHer Majesty’s
Advocate [2017] HCJAC 44
Keywords
Insanity, intoxication, religious aggravation, mental illness, appreciate
On 20 September 2015, MacKay phoned emergency services declaring he was armed with a machete
and pyrotechnics and threatening violence and death towards Muslims. There was no dispute that he had
made an abusive 999 call, stating that he was in close proximity to a Tandoori takeaway shop in Rosyth
(Scotland), nor that he expressed the belief that the shop workers were Muslim and involved in a terrorist
plot and that he intended to behead the shop workers with a machete in his possession. MacKay was
intoxicated at the time and he claimed that he had made the call in the hope that the police might
intercede and stop him. Acknowledging his psychiatric background, he described himself as dangerous
and expressed the belief that what he planned to do was a ‘murderous crime’ and ‘mass murder’. The call
ended when police arrived at the scene. The appellant, although intoxicated, recognised that the police
had attended because of his conduct. The police recovered the (then) discarded machete.
Despite lodging the special defence of insanity under the common law (M. Advocate vKidd 1960 JC
61 at [701]), the trial proceeded on the basis that in terms of s. 51A of the Criminal Procedure (Scotland)
Act 1995: ‘A person is not criminally responsible ...if the person was at the time of the conduct unable
by reason of mental disorder to appreciate the nature or wrongfulness of the conduct’ (at [4]).
MacKay did not give evidence at trial. It was not challenged that he was a serving soldier and had a
documented history of mental health issues, nor that he suffered from a mental disorder (post-
traumatic stress disorder and delusional disorder) at the time of the offence. The question for the jury
was to what extent the mental disorder affected his judgment. The psychiatrists agreed that the
appellant had appreciated the nature of his conduct. The psychiatrists disagreed regarding whether
the appellant appreciated the wrongfulness of his conduct. The Sheriff provided the following expla-
nation to the jury:
If not withstanding a mental disorder the accused was able to any extent to appreciate the nature and
wrongfulness of the conduct which constitutes a charge that falls short of the degree of loss of reason required
to establish the special defence. (at [15])
The Crown’s psychiatrists were of the view that Mackay had at least some idea that what he was
planning to do was wrong. The defence psychiatrist, however, was of the opinion that the appellant had
been unable to appreciate the wrongfulness of the conduct to any extent (at [9]).
The Journal of Criminal Law
2017, Vol. 81(5) 352–355
ªThe Author(s) 2017
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DOI: 10.1177/0022018317735732
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