Scarsbrook or Galbraith v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 21 June 2001 |
| Date | 21 June 2001 |
| Docket Number | No 1 |
| Court | High Court of Justiciary |
L J-G Rodger, Lord Penrose, Lady Cosgrove, Lord Nimmo Smith and Lord Bonomy
Justiciary—Murder—Culpable homicide—Diminished responsibility—Requirements of Mental abnormality—Misdirection of jury
The appellant was charged with the murder of her husband. At trial she contended that, due to diminished responsibility, the verdict should be culpable homicide. She gave evidence that the deceased had abused her in a number of ways over a period of years. She had feared that he would kill her, had considered that if she left him he would find her, and she had killed him because she could not think of any other way in which to bring her tribulations to an end. She led evidence from psychologists that she had been suffering from a form of post traumatic stress disorder. The Crown's position was that the appellant's account of abuse at the hands of her husband was untrue. The appellant was convicted of murder. The appellant appealed against conviction, on the basis of misdirection. She argued inter alia that, although the directions of the trial judge regarding diminished responsibility accurately stated the law as set out in binding authorities, these authorities themselves contained erroneous and unduly narrow statements of the law on this point. Accordingly, the trial judge's directions were also unduly narrow. In particular: (1) HMA V Connellyhad wrongly interpreted the ratio of the earlier case of HMA v Savage, and had unduly narrowed the scope of the defence;Savage did not require, as a prerequisite for a finding of diminished responsibility, the presence of all four of the criteria referred to in that case; instead, these were simply given as examples of the sort of thing that an accused might have to prove; (2) further, the statement in Savage that there had to be some form of mental disease was wrong, and the jury should have been directed that they could return a verdict of culpable homicide if they accepted the evidence of abuse and the psychologists' evidence of the effects of the abuse. The Crown accepted that Connellyhad unduly restricted Savage, and should be overruled; and that the requirement in Savage that there should be mental disease was too restrictive; and hence that the trial judge had misdirected the jury.
Held (1) that the ratio in HMA v Savage did not require that the jury be satisfied that the accused's state of mind satisfied all of the tests set out in that case (namely: “aberration or weakness of mind”;“mental unsoundness”; “a state of mind bordering on though not amounting to insanity”; and “a mind so affected that responsibility is diminished from full responsibility to partial responsibility”); rather, these were the sort of thing that was necessary for a finding of diminished responsibility (p 13D–I); accordingly, the court in HMA v Connelly were wrong to insist that Savage required all the criteria to be met, and should be overruled; and thus the direction in the present case were unsound (p 14B); (2) that the phrase “mental disease” as used in savage should not be interpreted in a narrow sense, and had been interpreted too strictly in later case (p 15H); (3) that, as diminished responsibility was a legal concept, it was not the function of witnesses to say whether an accused's responsibility was diminished; rather it was for the judge to decide whether the evidence of the accused's mental state disclosed a basis upon which the law could regard the accused's responsibility as being diminished; if it did not, then the defence must be withdrawn from the jury's consideration; but if it did, then the judge had to direct the jury that, jury's consideration; but if it did, then the judge had to direct the jury that, if they accepted the evidence, they could return a verdict of culpable homicide; the judge's directions should not simply recite a formula, but should be tailored so far as possible to the facts of the case; in essence, the jury had be told that they must be satisfied that, by reason of the abnormality of mind in question, the ability of the accused, as compared with a normal person, to determine or control his actings was substantially impaired (pp 16E–H, 21E); (4) that diminished responsibility did not come into play unless the effect on the accused's mind was substantial, but that it did not have to border on insanity (pp 18E, 21G); (5) that the abnormality of mind might take various forms, but had to be one that was recognised by the appropriate science; it could be congenital, or derive from an organic condition, from some psychotic illness, or from the psychological effects of severe trauma; it might mean that the accused perceived physical acts and matters differently from a normal person, or might effect his ability to form a rational judgment as to whether a particular act was right or wrong or to decide whether to perform it (pp 20C–21B, 22A); and appealallowed and conviction quashed, and authority granted to the Crown to bring a new prosecution.
Observed (1) that the observations made in the case regarding the underlying principles of the law regarding diminished responsibility were somewhat tentative, and might have to be modified or refined in the light of experience in subsequent cases (p 16D); (2) that there were limits to the class of states of mind which comprise diminished responsibility, and that in particular: first, no mental abnormality short of actual insanity which is brought on by the accused himself taking drink of drugs or sniffing glue will fall within this class; and second, the condition of psychopathic personality disorder does not fall within this class (p 17C); (3) that where the accused lodged a special defence of insanity at the time of the killing, it might well be appropriate to direct the jury that if they find that the accused was not insane, they should nevertheless go on to consider whether his mental state bordered on insanity (p 18F).
Advocate (HM) v Savage 1923 JC 49 considered;Advocate (HM) v ConnellySC1990 JC 349 andWilliamson v HM AdvocateSC1994 JC 152overruled.
Kim Louise Scarsbrook or Galbraith was charged on indictment at the instance of the Right Honourable The Lord Hardie, Her Majesty's Advocate with the murder of her husband, Ian Quintin Galbraith, on 14 January 1999. After trial, she was convicted of murder.
Cases referred to:
Advocate (HM) v Aitken (1902) 4 Adam 88
Advocate (HM) v Blake 1986 SLT 661
Advocate (HM) v BraithwaiteSC 1945 JC 55
Advocate (HM) v Brown (1882) 4 Coup 596
Advocate (HM) v Campbell 1921 JC 1
Advocate (HM) v ConnellySC 1990 JC 349
Advocate (HM) v Dingwall (1867) 5 Irv 466
Advocate (HM) v Edmonstone (1909) 2 SLT 223
Advocate (HM) v Ferguson (1881) 4 Coup 552
Advocate (HM) v Gove (1882) 4 Coup 598
Advocate (HM) v Granger (1878) Coup 86
Advocate (HM) v Kane (1892) 3 White 386
Advocate (HM) v M'Clinton (1902) 4 Adam 1
Advocate (HM) v M'Lean (1876) 3 Coup 334
Advocate (HM) v Ritchie 1926 JC 45
Advocate (HM) v Savage 1923 JC 49
Advocate (HM) v Smith (1893) 1 Adam 34
Advocate (HM) v Tierney (1875) 3 Coup 152
Brennan v HM AdvocateSC 1977 JC 38
Caldwell v HM Advocate 1946 SLT (Notes) 9
Carraher v HM AdvocateSC 1946 JC 108
DPP V BeardELR [1920] AC 479
Kennedy v HM AdvocateSC 1944 JC 171
Kirkwood v HM AdvocateSC 1939 JC 36
Lindsay v HM AdvocateSC 1997 JC 19
Muir v HM AdvocateSC 1933 JC 46
R v ByrneELR [1960] 2 QB 396
R v SeersUNK (1984) 79 Cr App R 261
R v SmithELR [2001] 1 AC 146
R v SpriggsELR [1958] 1 QB 270
Rose v The QueenELR [1961] AC 496
Russell v HM AdvocateSC 1946 JC 48
Williamson v HM AdvocateSC 1994 JC 152
Textbooks etc referred to:
Anderson: Criminal Law (2nd ed)
Macdonald: Criminal Law (5th ed) pp 96–97
Wharton: Treatise on Mental Unsoundness embracing a General View of Psychological Law, p xiv
The cause called before the High Court of Justiciary, comprising three judges. On 7 June 2001 the Court remitted the cause for a hearing before a court of five judges. The cause accordingly called before The Lord Justice-General (Rodger), Lord Penrose, Lady Cosgrove, Lord Nimmo Smith and Lord Bonomy. On 21 June 2001, the appeal was allowed and authority for a fresh prosecution granted.
At advising on 18 July 2001, the opinion of the court was delivered by The Lord Justice-General.
Opinion of the Court—
[1] This appeal by Kim Louise Scarsbrook or Galbraith against her conviction of murdering her husband was first heard by a court of three judges. On 7 June, for the reasons outlined in the opinion delivered by the Lord Justice General, that court decided to remit the appeal for a hearing before a larger court so that we could consider various issues relating to the trial judge's directions on diminished responsibility. As the Lord Justice General explained, there were in fact three grounds of appeal but it was decided that the larger court should begin by considering the appellant's appeal on the third ground which raised these particular issues. In the event, for the reasons which we now give, we decided on 21 June to allow the appeal on this third ground and, in terms of sec 118(1)(c) of the Criminal Procedure (Scotland) Act 1995, we set aside the verdict, quashed the conviction and, since significant issues of credibility arose, granted the Crown authority to bring a new prosecution in accordance with sec 119. Fro that reason it was unnecessary for us to consider either of the other two grounds of appeal and counsel for the appellant did not indeed advance them before the larger court.
[2] Since we were satisfied that there had been a misdirection and the Crown did not suggest that it was other than material or that there had been no miscarriage of justice, we give no more than the brief outline of the evidence which is needed to provide a setting for our discussion.
[3] For some time before January 1999 the appellant and the deceased had lived together at...
To continue reading
Request your trial
-
Re B (2006)
... ... We take that word from the speech of Lord Hope of Craighead in Montgomery v Her Majesty's Advocate [2003] 1 AC 641 ... 36 22. The broad criticism of the judge's decision, developed by Mr ... Our attention was drawn to Scarsbrook or Galbraith v Her Majesty's Advocate from the Appeal Court, High Court of Justiciary in Scotland ... ...
-
Wf For Judicial Review Of A Decision Of The Scottish Ministers To Refuse To Make A Determination For Legal Aid Under Section 4(2)(c) Of The Legal Aid (scotland) Act 1986
...“remarkable” and as displaying a lack of understanding of the adversarial system. Unlike in many continental systems (c.f. Galbraith v HMA 2002 JC 1 at para 21), it was not the job of the court to know the law and to give effect to the complainer’s Article 8 rights in circumstances where sh......
-
McTear v Imperial Tobacco Ltd
...UKHL 22; [2003] 1 AC 32; [2002] 3 WLR 89; [2002] 3 All ER 305 Fowler v Tierney 1974 SLT (Notes) 23 Galbraith v HM Advocate (No 2)SCUNK 2002 JC 1; 2001 SLT 953; 2001 SCCR 551 Glasgow Corporation v TaylorELR [1922] 1 AC 44 Graham Barclay Oysters Pty Ltd v RyanUNK (2002) 211 CLR 540 Grant v Au......
-
Ashok Kalyanjee V. Her Majesty's Advocate
...Baird [47] Dr Baird said that in 2008 he had still been working largely under the regime which had applied before Galbraith v HM Advocate 2002 JC 1. He had not been aware that PD was a factor that could be considered relevant to diminished responsibility. He now considered it quite likely t......
-
Recognising Acute Intoxication as Diminished Responsibility? A Comparative Analysis
...person would otherwise be convictedof murder was, at the time of the conduct, substantially impaired by reason ofabnormality of mind’.41 2002 JC 1.42 Chalmers, above n. 38. See also, J. Chalmers, ‘Abnormality and Anglicisation: FirstThoughts on Galbraith v HM Advocate (No. 2)’(2002) Edinbur......
-
Scots Law News
...not limited to this field, however central it seems. There were path-breaking judgments in pure criminal law, as in Galbraith v HM Advocate 2002 JC 1 on diminished responsibility. And in private law he ranged widely, perhaps especially when he was Lord President; but even in the House of Lo......
-
A Long Motor Run on a Dark Night: Reconstructing HM Advocate v Ritchie
...as to the sorts of causes which might induce such a condition, whether permanent or passing:2525Much later, in Galbraith v H M Advocate 2002 JC 1 at 20 (like Ross a five-judge court), this was quoted with approval by Lord Justice General Rodger as the start of a list of possible causes of T......
-
Psychopaths and Criminal Responsibility
...the rule excluding psychopathy from the scope of that defence.33See Carraher v HM Advocate 1946 JC 108; Galbraith v HM Advocate (No 2) 2002 JC 1 at para 43 per the Lord Justice-General (Rodger). It replaces insanity with a new special defence headed “criminal responsibility of mentally diso......