R v Hennessy
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 27 January 1989 |
| Judgment citation (vLex) | [1989] EWCA Crim J0127-1 |
| Docket Number | No. 721/A2/88 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 January 1989 |
[1989] EWCA Crim J0127-1
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Rose
and
Mr. Justice Pill
No. 721/A2/88
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. T. OWEN appeared on behalf of the Appellant.
MR. B. PHELVIN appeared on behalf of the Crown.
On 15th January last year, on the second day of a trial in the Crown Court at Lewes before His Honour Judge Birks and a jury, following a ruling on the defence of non-insane automatism, this appellant, Andrew Michael Hennessy, now 27 years of age, pleaded guilty and was sentenced as follows: first of all on count 1, for taking a conveyance without authority, nine months' imprisonment suspended for two years; count 2, driving while disqualified, six months' imprisonment to run concurrently, also suspended for two years. He was disqualified from holding or obtaining a driving licence for two years and his driving licence was endorsed. Also a community service order made in March 1988 was ordered to continue.
He now appeals against conviction by a certificate of the learned trial Judge. The Judge's certificate, to read it somewhat out of chronological order, was as follows: "The defendant, who is diabetic, claimed that he did not know what he was doing when the offence was committed because he was suffering from hyperglycaemia, having failed to take insulin for some days. He sought to raise the defence of automatism. I rejected this on the ground that his alleged mental condition, if it existed, was caused by disease, namely diabetes."
The facts which gave rise to the charges, in so far as material, were these. On Thursday 25th May 1987, two police constables, Barnes and Grace, were on duty in St. Leonards on the Sussex coast, amongst other things looking for a Ford Granada car which had been stolen. They found the car. It was unattended. They kept it under watch. As they watched they saw the appellant get into the car, switch on the headlights and ignition, start the car and drive off. The appellant at the wheel of the car correctly stopped the car at a set of traffic lights which were showing red against him.
Constable Grace then went over to the car as it was stationary, removed the ignition keys from the ignition lock, but not before the appellant had tried to drive the motor car away and escape from the attention of the policeman. The appellant was put in the police car. On the way to the police station an informal conversation about motor vehicles took place between the appellant and the police officers, in particular about the respective merits of the new Rover motor car and the Ford Sierra. Indeed the appellant appeared to Police Constable Barnes not only to be fully in possession of his faculties but to be quite cheerful and intelligent. Indeed he went so far as to say to the police officer that if he had only got the car, which he was in the process of removing, on to the open road, he would have given the policemen a real run for their money.
However after having been at the police station for a time, he was at a later stage escorted by Police Constable Barnes to hospital. He seemed to be normal when he left the cell block at the police station, but when he arrived at the hospital he appeared to be dazed and confused. He, the appellant, complained to the sister in the casualty ward that he, the appellant, had failed to take his insulin and indeed had had no insulin since the previous Monday when he should have had regular self-injected doses. He was given insulin, with which he injected himself, and the hospital discharged him and he was taken back to the police station.
The appellant gave evidence to the effect that he had been a diabetic for about ten years. He needed, in order to stabilise his metabolism, two insulin injections on a daily basis, morning and afternoon. The amount required would depend on factors such as stress and eating habits. He was on a strict carbohydrate diet. At the time of the offence he said he had been having marital and employment problems. His wife had submitted a divorce petition some time shortly before, and he was very upset. He had not been eating and he had not been taking his insulin. He remembered very few details of the day. He could recall being handcuffed and taken to the chargeroom at the police station. He remembered being given insulin at the hospital and injecting himself and he remembers feeling better when he got back to the police station afterwards. He said he did not recall taking the car.
When cross-examined he agreed that he had understood proceedings at the police station, and what had gone on there. Indeed he had given the name and address of his solicitor. That was a considerable time before he had had his insulin at the hospital.
His General Practitioner, Dr. Higginson, was called to give evidence. He spoke as to the appellant's medical condition. He described in broad outlines the effect of diabetes: it is a deficiency in the system of the production of hormones, which should balance the sugar metabolism. The lacking hormone is of course insulin. In the absence of the hormone the blood sugar rises and that results in hyperglycaemia. If the patient does not take his insulin and does not stick to the proper diet, then hyperglycaemia will supervene. If unchecked, the liver will become affected and the increasingly high level of sugar makes the patient drowsy and he will ultimately go into a coma.
If on the other hand the balance tips the other way, if too much insulin is taken, then the blood sugar will fall and hypoglycaemia, that is to say too little sugar in the blood, will supervene.
According to the hospital notes, on the evening in question the appellant's blood sugar had been high at 22 plus millimolecules per litre, the normal being 8 or 9. According to Dr. Higginson one would expect to see some physical manifestation of hyperglycaemia at that level. So the doctor was saying in short that eventually hyperglycaemia can result in drowsiness, loss of consciousness and coma, greater or less unresponsiveness to stimuli according to the degree of hyperglycaemia present. He added – I will read a passage from his evidence in a moment – that anxiety or depression can increase the blood sugar level, a person's ability and awareness of what is going on could be impaired if there were "associated symptoms and he had other conditions and worries at the same time".
If one reads a passage from Dr. Higginson's evidence, it says this:
"Q. What if a person was in a state of anxiety or depression at the same time as having high blood sugar? A. The blood sugar tends to be inreased in the ordinary diabetic by any trauma or psychological stress, so the answer to your question is yes, it would go up.
"Q. What about the person's ability and awareness of what was going on, would that be impaired or could it be impaired? A. I think if there was associated symptoms and he had other conditions and worries at the same time, yes it could be impaired."
Then in answer to a question by the learned Judge the doctor said this: "There is a great individual variability in this situation, and it is difficult to be dogmatic, but I think that would be a reasonable explanation of someone who is under a lot of stress and had a very high level of blood sugar.…He might not be clear about what he was doing; he might be a bit befuddled. It is well known that the reverse condition, hypoglycaemia produces these symptoms very markedly. From time to time people are arrested for being drunk."
The defence to these charges accordingly was that the appellant had failed to take his proper twice a day dose of insulin for two or three days and at the time the events in question took place he was in a state of automatism and did not know what he was doing. Therefore it is submitted that the guilty mind,...
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Table of cases
...1 SCR 984 .......................................................................................................57 R v Hennessy, [1989] 2 All ER 9 ................................................................................................535 R v Hess (No 1), [1949] 1 WWR 577 (BCCA) ........
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Table of cases
...af’g 2014 BCCA 48 .............. 238 R v Helsdon, 2007 ONCA 54, 84 OR (3d) 544, 275 DLR (4th) 209 ........... 179, 491 R v Hennessy, [1989] 2 All ER 9, [1989] 1 WLR 287, 133 Sol J 263 (CA) ............................................................................... 343, 360 R v Hess, [19......
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Table of Cases
...470 R v Hennessey, 2010 ABCA 274 .......................................................................... 168 R v Hennessy, [1989] 2 All ER 9, [1989] 1 WLR 287, 133 Sol J 263 (CA) ............................................................................... 328, 345 R v Hess, [1990] 2 S......