Ross v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1991 |
| Docket Number | No. 36. |
| Date | 12 July 1991 |
| Court | High Court of Justiciary |
FULL BENCH.
L.J.-G. Hope, Lords Allanbridge, McCluskey, Weir and Brand.
Crime—Defence—Assault—Automatism—Non-insane automatism—Involuntary intoxication—Accused losing control through drugs administered to him without his knowledge—Whether defence—Whether going mainly to mitigation of circumstances.
Evidence—Defence—Automatism—Non-insane automatism—Onus of proof.
An accused person was charged on indictment with attempted murder. On the day in question he had been drinking lager from a can but, unknown to him, five or six tablets of temazepam and some L.S.D. had been squeezed into the can and consumed by the accused with the lager. Within about half an hour the accused started to scream continuously and lunge about in all directions, holding a knife. Various people who were complete strangers to him were struck by him with the knife and, in most cases, the injuries which they received were severe. The defence argued that the effect of the ingestion of these drugs was to deprive the accused of his self-control to such an extent that he was incapable of forming mens rea and that it should be left to the jury to consider whether or not they should acquit him on this ground. The Crown contended that there was no room for an acquittal because the only defence which could have been put forward to support such a verdict was a plea of insanity at the time and, since no plea of insanity had been offered and no evidence to that effect had been led, that a verdict of guilty of attempted murder had to be returned. The trial judge (Lord Cowie) directed the jury that the evidence of the accused's mental state at the time could not result in an acquittal. On being convicted the accused appealed to the High Court of Justiciary by way of note of appeal against conviction.
Held (1) that the defence of automatism was based on an inability to form mens rea due to some external factor which was outwith the appellant's control and which he was not bound to foresee; (2) that where the point was sufficiently put in issue an accused should be acquitted if the jury were not satisfied the Crown had proved mens rea which would be entirely consistent with the principle that the onus rests throughout on the Crown, and the requirements that the external factor must not be self-induced and must be one which the accused was not bound to foresee and must have resulted in a total alienation of reason amounting to a complete absence of self-control provided adequate safeguards against abuse; (3) that since there had been no issue as to the appellant's sanity in this case the ordinary rule applied that the onus was on the Crown to establish the appellant's guilt beyond reasonable doubt; and (4) that since there had been evidence which would have entitled a jury to acquit the appellant on this ground, a miscarriage of justice had occurred; and appeal allowed.
H.M. Advocate v. CunninghamSC 1963 J.C. 80;Carmichael v. BoyleUNK 1985 S.L.T. 399 and Clark v. H.M. AdvocateSC1968 J.C. 53overruled in part.
H.M. Advocate v. Ritchie 1926 J.C. 45approved.
Opinion reserved, as to whether automatism was a special defence requiring notice to be given by the accused.
Robert Ross was charged on an indictment at the instance of the Rt. Hon. The Lord Fraser of Carmyllie, Q.C., Her Majesty's Advocate, the libel of which set forth inter alia seven charges of attempted murder, two charges of assault, a charge of breach of the peace, a charge of malicious damage and a charge of contravening sec. 41 (1) (a) of the Police (Scotland) Act 1967. All the offences were alleged to have occurred on 15th or 16th June 1990 in North Road, Johnstone.
The pannel pled not guilty and the cause came to trial before Lord Cowie and a jury in the High Court of Justiciary at Glasgow between 22nd and 27th November 1990. On 27th November 1990 the jury convicted the pannel, under deletion of the references to attempted murder and subject to the rider that at the time of the offences the pannel had been acting under the influence of drugs administered to him without his knowledge. After having been sentenced, the pannel appealed to the High Court of Justiciary by way of note of appeal against conviction. The terms of the trial judge's charge to the jury and report for their Lordships' consideration appear adequately from the opinions of their Lordships.
The grounds of appeal were in the following terms: "(1) In directing the jury to convict and refusing to let them consider mens rea the presiding judge erred. There was evidence that the appellant, without his knowledge, had had drugs put into his drink, the effect of which would have been likely to take away or reduce his self-control and distort his thinking and so could have accounted for his material actings. This is a defence of non-self-induced automatism negativing mens rea and should have been left to the jury. (2) The presiding judge was wrong in holding that he was bound byH.M. Advocate v. CunninghamSC 1963 J.C. 80. Instead cases such as McGregor v. H.M. Advocate 1973 S.C.C.R. Supp. 54; H.M. Advocate v. RaikerUNK 1989 S.C.C.R. 149; and R. v. QuickELR [1973] Q.B. 910 should have been followed and mens rea left to the jury. (3) EstoCunningham was rightly held to apply; it should be [reconsidered] in order that a defence of non-culpable automatism is admissible."
The cause came before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Allanbridge and Lord Brand, for a hearing on 8th March 1991. Eo die, their Lordships remitted the cause to be heard by a court of five judges and continued the appeal to a date to be afterwards fixed.
The cause thereafter came before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Allanbridge, Lord McCluskey, Lord Weir and Lord Brand, for a hearing on 26th and 27th June 1991. Eo die, their Lordships made avizandum.
At advising, on 12th July 1991;—
LORD JUSTICE-GENERAL (Hope).—The appellant went to trial in the High Court at Glasgow on a charge of malicious damage, nine charges of assault involving the use of a knife in all but two of which he was also charged with attempted murder, one charge of breach of the peace and a charge of assaulting police officers in the execution of their duty contrary to the Police (Scotland) Act 1967, sec. 41 (1) (a). Most of the facts were agreed by joint minute except those relating to the charge of police assault, and the jury found the appellant not guilty on that charge. They found him guilty on all the other charges under deletion of the references to attempted murder, and subject to the rider that at the time of these offences he was acting under the influence of drugs administered to him without his knowledge. He has appealed against his conviction on the ground that the trial judge misdirected the jury that they could not acquit him of the charges of which he was convicted.
There was evidence that on the day in question the appellant had been drinking lager from a can. Unknown to him five or six tablets of temazepam and a quantity of L.S.D. had been squeezed into the can and he ingested these drugs along with the lager which he was drinking. Within about half an hour he started to scream continuously and to lunge about in all directions with a knife. Various people who were complete strangers to him were struck by him with the knife, and in most cases the injuries which they received were severe. The police arrived, but when they approached the appellant he continued to scream and he resisted arrest until he was handcuffed. He struggled continuously for about two hours until he was eventually taken to hospital where a drug was administered which brought him under control. Temazepam is a hypnotic drug which in most cases has a tranquillising effect, although in rare instances it may cause a person to over-react in a disinhibited way. L.S.D. on the other hand is a hallucinogen, whose effect initially is that of arousal. It tends to generate feelings of fear or anxiety, together with visual distortions. This may give rise to behavioural reactions in the form of paranoia and aggression, especially in the case of persons who are not aware that they have taken the drug. To a large extent the reaction depends on the individual, and it is not capable of being predicted.
The argument for the defence in this case was that the effect of the ingestion of these drugs was to deprive the appellant of his self-control to such an extent that he was incapable of mens rea, and that it should be left to the jury to consider whether or not they should acquit him on this ground. The Crown contended that, standing the agreed facts, there was no room for an acquittal because the only defence which could have been put forward to support such a verdict was a plea of insanity at the time. This argument was based on the decisions in H.M. Advocate v. CunninghamSC 1963 J.C. 80 and Carmichael v. BoyleUNK 1985 S.L.T. 399; see alsoClark v. H.M. AdvocateSC 1968 J.C. 53. Since no plea of insanity had been offered and no evidence to that effect had been led, it followed that verdicts of guilty had to be returned. The trial judge took the view that he could not distinguish Cunninghamand Carmichael from the present case, so he directed the jury that the evidence about the appellant's mental state at the time could not result in his acquittal. The basis for that direction was the following passage in the opinion of Lord Justice-General Clyde inCunningham at p. 84: "Any mental or pathological condition short of insanity—any question of diminished responsibility owing to any cause, which does not involve insanity—is relevant only to the question of mitigating circumstances and sentence." That was a case where the appellant had claimed that he was not responsible for his actings on account of the incidence of temporary dissociation due to an epileptic fugue or other pathological condition. In...
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