R v Sullivan (Patrick Joseph)
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Scarman,Lord Lowry,Lord Bridge of Harwich,Lord Brandon of Oakbrook |
| Judgment Date | 23 June 1983 |
| Judgment citation (vLex) | [1983] UKHL J0623-1 |
| Court | House of Lords |
[1983] UKHL J0623-1
House of Lords
Lord Diplock
Lord Scarman
Lord Lowry
Lord Bridge of Harwich
Lord Brandon of Oakbrook
My Lords,
The appellant, Mr. Sullivan, a man of blameless reputation, has the misfortune to have been a lifelong sufferer from epilepsy. There was a period when he was subject to major seizures known as grand mal; but, as a result of treatment which he was receiving as an out patient of the Maudsley Hospital from 1976 onwards, these major seizures had, by the use of drugs, been reduced by 1979 to seizures of less severity known as petit mal, or psychomotor epilepsy, though they continued to occur at a frequency of one or two per week.
One such seizure occurred on 8 May 1981. when Mr. Sullivan, then aged 51 was visiting a neighbour, Mrs. Killick. an old lady aged 86 for whom he was accustomed to perform regular acts of kindness. He was chatting there to a fellow visitor and friend of his, a Mr. Payne aged 80, when the epileptic fit came on. It appears likely from the expert medical evidence about the way in which epileptics behave at the various stages of a petit mal seizure that Mr. Payne got up from the chair to help Mr. Sullivan. The only evidence of an eye-witness was that Mrs. Killick, who did not see what had happened before she saw Mr. Payne lying on the floor and Mr. Sullivan kicking him about the head and body, in consequence of which Mr. Payne suffered injuries severe enough to require hospital treatment.
As a result of this occurrence Mr. Sullivan was indicted upon two counts: the first was of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861; the second of causing grievous bodily harm contrary to section 20 of that Act. At his trial, which took place at the Central Criminal Court before Judge Lymbery and a jury, Mr. Sullivan pleaded not guilty to both counts. Mrs. Killick's evidence that he had kicked Mr. Payne violently about the head and body was undisputed and Mr. Sullivan himself gave evidence of his history of epilepsy and his absence of all recollection of what had occurred at Mrs. Killick's flat between the time that he was chatting peacefully to Mr. Payne there and his returning to the flat from somewhere else to find that Mr. Payne was injured and that an ambulance had been sent for. The prosecution accepted his evidence as true. There was no cross-examination.
Counsel for Mr. Sullivan wanted to rely upon the defence of automatism or, as Viscount Kilmuir had put in Bratty v. A.G. for Northern Ireland [1963] A.C. 386, 405, "non-insane" automatism; that is to say, that he had acted unconsciously and involuntarily in kicking Mr. Payne, but that when doing so he was not "insane" in the sense in which that expression is used as a term of art in English law, and in particular in section 2 of the Trial of Lunatics Act 1883, as amended by section 5 of the Criminal Procedure (Insanity) Act 1964. As was decided unanimously by this House in Bratty, before a defence of non-insane automatism may properly be left to the jury, some evidential foundation for it must first be laid. The evidential foundation that counsel laid before the jury in the instant case consisted of the testimony of two distinguished specialists from the neuropsychiatry epilepsy unit at the Maudsley Hospital, Dr. Fenwick and Dr. Taylor, as to the pathology of the various stages of a seizure due to psychomotor epilepsy. Their expert evidence, which was not disputed by the prosecution, was that Mr. Sullivan's acts in kicking Mr. Payne had all the characteristics of epileptic automatism at the third or post-ictal stage of petit mal; and that in view of his history of psychomotor epilepsy and hospital records of his behaviour during previous seizures, the strong probability was that Mr. Sullivan's acts of violence towards Mr. Payne took place while he was going through that stage.
The evidence as to the pathology of a seizure due to psychomotor epilepsy can be sufficiently stated for the purposes of this appeal by saying that after the first stage, the prodram, which precedes the fit itself, there is a second stage, the ictus, lasting a few seconds, during which there are electrical discharges into the temporal lobes of the brain of the sufferer. The effect of these discharges is to cause him in the post-ictal stage to make movements which he is not conscious that he is making, including, and this was a characteristic of previous seizures which Mr. Sullivan had suffered, automatic movements of resistance to anyone trying to come to his aid. These movements of resistance might, though in practice they very rarely would, involve violence.
At the conclusion of the evidence, the judge, in the absence of the jury, was asked to rule whether the jury should be directed that if they accepted this evidence it would not be open to them to bring in a verdict of "not guilty", but they would be bound in law to return a special verdict of "not guilty by reason of insanity". The judge ruled that the jury should be so directed.
After this ruling, Mr. Sullivan, on the advice of his counsel and with the consent of the prosecution and the judge, changed his plea to guilty of assault occasioning actual bodily harm. The jury, on the direction of the judge, brought in a verdict of guilty of that offence, for which the judge sentenced him to three years probation subject to the condition that during that period he submitted to treatment under the direction of Dr. Fenwick at the Maudsley Hospital.
My Lords, neither the legality nor the propriety of the procedure adopted after the judge's ruling has been canvassed in this House; nor was it canvassed in the Court of Appeal to which an appeal was brought upon the ground that the judge ought to have left to the jury the defence of non-insane automatism which, if accepted by them, would have entitled Mr. Sullivan to a verdict of "not guilty". In these circumstances the present case does not appear to be one in which it would be appropriate for this House to enter into a consideration of the procedure followed in the Central Criminal Court after the judge's ruling; more particularly, as it raises some questions that will shortly come before your Lordships for argument in another appeal.
The Court of Appeal held that Judge Lymbery's ruling had been correct. It dismissed the appeal and certified that a point of law of general public importance was involved in the decision, namely:
"Whether a person who is proved to have occasioned, contrary to Section 47 of the Offences against the Person Act 1861, actual bodily harm to another, whilst recovering from a seizure due to psychomotor epilepsy and who did not know what he was doing when he caused such harm and has no memory of what he did should be found not guilty...
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