борисова / R v Sullivan

REGINA RESPONDENT

AND

SULLIVAN APPELLANT

HOUSE OF LORDS [1984]

1982 Oct. 19; Dec. 9 - Lawton L.J., Michael Davies and Bush JJ.

1983 April 20, 21; June 23 - Lord Diplock, Lord Scarman, Lord Lowry, Lord Bridge of Harwich and Lord Brandon of Oakbrook

Crime - Insanity - Automatism - Injury to victim caused during epileptic fit - defence of automatism - Whether verdict of not guilty by reason of insanity required in law

The appellant kicked a man violently on the head and body while suffering a seizure due to psychomotor epilepsy. At his trial he pleaded not guilty to causing grievous bodily harm with intent and inflicting grievous bodily harm. He gave evidence, which was not disputed, that he had no recollection of the incident, and two medical experts, whose evidence was also uncontested, testified that it was strongly probable that the attack took place during the third, or post-ictal, stage of the seizure. When the appellant would make automatic movements of which he was not conscious. At the close of the evidence, the judge ruled, in the absence of the jury, that they should be directed that if they accepted the evidence it would not be open to them to bring in a verdict of not guilty but that they would be bound to return a special verdict of not guilty by reason of insanity. The appellant thereupon changed his plea to guilty of assault occasioning actual bodily harm, and was convicted accordingly. On appeal against conviction on the ground that the judge should have left the defence of non-insane automatism to the jury, the Court of Appeal dismissed the appeal.

On appeal by the appellant:-

Held, dismissing the appeal, that a disorder which so impaired the appellant’s mental faculties of reason, memory and understanding, that at the time of the commission of the act he did not know what he was doing or, if he did know, that he did not know that it was wrong, was a " disease of the mind " causing a " defect of reason" within the M’Naghten Rules, whether ,the aetiology of the impairment was organic or functional and whether it was permanent or transient and intermittent; and that, accordingly, despite a reluctance to attach the label of insanity to a sufferer from psychomotor epilepsy, the proper verdict on the evidence was the special verdict of not guilty by reason of insanity (post, pp. 171F-172A, C-E, 173F-174A).

M’Naghten's Case (1843) 10 Cl. & Fin. 200 applied.

Reg. v Kemp [1957] 1 Q.B. 399 and Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386, H.L.(N.I.) considered.

Per curiam. The possibility exists of non-insane automatism (for which the proper verdict would be a verdict of not guilty) in cases where temporary impairment (not. being self-induced by consuming drink or drugs) results from some external physical factor such as a blow on the head causing concussion or the administration of an anaesthetic for therapeutic purposes (post, p.172G-H).

Decision of the Court of Appeal (Criminal Division), post, p.160C; [1983] 2 W.L.R. 392; [1983] 1 All E.R. 577 affirmed.

The following cases are referred to in the opinion of Lord Diplock:

Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386; [1961] 3 W.L.R. 965; [1961] 3 All E.R. 523, H.L.(N.I.). M'Naghten's Case (1843) 10 Cl. & Fin. 200. Reg. v. Kemp [1957] 1 Q.B. 399; [1956] 3 W.L.R. 724; [1956] 3 All E.R. 249. Reg. v. Quick [1973] Q.B. 910; [1973] 3 W.L.R. 26; [1973] 3 All E.R. 347; 57 Cr.App.R. 722, C.A.

The following additional cases were cited in argument in the House of Lords:

Arnold’s Case (1724) 16 St.Tr. 695. Fain v. Commonwealth (1879) 39 Am.Rep. 213. Hadfield's Case (1800) 27 St.Tr. 128 1. Hill v. Baxter [1958] 1 Q.B. 277; [1958] 2 W.L.R. 76; [1958] 1 All E.R. 193, D.C. Reg. v. Charlson [1955] 1 W.L.R. 317; [1955] 1 All E.R. 859; 39 Cr.App.R. 37 Reg. v. Clarke [1972] 1 All E.R. 219; 56 Cr.App.R. 225, C.A. Reg. v. Holmes [1960] W.A.R. 122. Reg. v. Isitt [1978] R.T.R. 211; 67 Cr.App.R. 44, C.A. Reg. v. Joyce [1970] S.A.S.R. 184. Rex v. Holt (1920) 15 Cr.App.R. 10, C.C.A Rex v. Offord (1831) 5 C. & P. 168. Rex v. True (1922) 16 Cr.App.R. 164, C.C.A. Williams v. Williams [1964] A.C. 698; [1963] 3 W.L.R. 215; [1963] 2 All E.R. 994, H.L.(E.).

The following cases are referred to in the judgment of the Court of Appeal:

Arnold's Case (1724) 16 St.Tr. 695. Hadfield's Case (1800) 27 St.Tr. 1281. M'Naghten's Case (1843) 10 Cl. & Fin. 200; sub nom. McNaghten’s Case, 4 St.Tr.N.S. 847. Reg. v. Quick [1973] Q.B. 910; [1973] 3 W.L.R. 26; [1973] 3 All E.R. 347; 57 Cr.App.R. 722, C.A.

The following additional cases were cited in argument in the Court of Appeal:

Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386; [1961] 3 W.L.R. 965; [1961] 3 All E.R. 523, H.L.(N.I.). Hill v. Baxter [1958] 1 Q.B. 277; [1958] 2 W.L.R. 76; [1958] 1 All E.R. 193, D.C. Reg. v. Burns (Dafydd) (1973) 58 Cr.App.R. 364, C.A. Reg. v. Charlson (1955) 1 W.L.R. 317; [1955] 1 All E.R. 859. Reg. v. Isitt [1978] R.T.R. 211; 67 Cr.App.R. 44, C.A Reg. v. Kemp [1957] 1 Q.B. 399; [1956] 3 W.L.R. 724; [1956] 3 All E.R. 249.

APPEAL against conviction.

On January 15, 1982, at the Central Criminal Court (Judge Lymbery Q.C.) the appellant, Patrick Joseph Sullivan, pleaded not guilty to causing grievous bodily harm with intent to do grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861 (count 1) and to inflicting grievous bodily harm, contrary to section 20 (count 2). The appellant did not challenge the prosecution evidence about the cause of the injuries, but raised the defence that the injuries were caused by him while he was in a state of automatism during an epileptic fit. At the close of the case for the defence the trial judge ruled that the defence put forward was one of automatism by reason of insanity rather than automatism simpliciter. The appellant sought and was granted leave to change his plea on count 2 to guilty of assault occasioning actual bodily harm. He was put on probation for three years with a medical supervision order. He appealed against conviction on the ground that the trial judge erred in law in ruling that the appellant could not rely on a defence of automatism but only on a defence of insanity.

The facts are stated in the judgment.

Bruce Speller (assigned by the Registrar of Criminal Appeals) for the appellant. The appellant suffers from epilepsy and pushes people away who have tried to help him while he was in epileptic fits. As a result of the trial judge’s ruling that the defence put forward on his behalf was one by automatism by reason of insanity rather than automatism simpliciter, he pleaded guilty to inflicting actual bodily harm. He was thereby deprived of the opportunity of being found not guilty by the jury. It is an affront to common sense to say that he is insane.

One has to go back to first principles, contained in the M’Naghten Rules, and (to establish a defence of insanity) look for a " defect of reason " caused by " disease of the mind." According to the evidence in this case, epilepsy is not a disease of the mind in medical terms.

[LAWTON L.J. During the course of an epileptic fit there is no reason in the mind at all. The reasoning capacity is completely blacked out.]

That is adopted. There was no "defect of reason." Some of the authorities try to cut down " disease of the mind" to " disease." [Reference was made to Archbold Criminal Pleading Evidence & Practice, 41^st ed. (1982), para. 17-37, in which is set out the questions put in the House of Lords and answers given by the judges following M'Naghten's Case (1843) 4 St.Tr.N.S. 847.] The error of equating " disease of the mind" with " disease" appears to have arisen first in Reg. v. Kemp [ 1957 ] 1 Q.B. 399, 406, in which Devlin J. said: "there is ... no general medical opinion upon what category of diseases are properly to be called diseases of the mind." The defendant in that case suffered from arteriosclerosis, which was held to be a disease shown on the evidence to be capable of affecting the mind in such a way as to cause a defect, temporarily or permanently, and thus was a disease of the mind within the meaning of the M'Naghten Rules. However, in Reg. v. Charlson [1955] 1 W.L.R. 317 epilepsy or a brain tumour were held not to be diseases of the mind, even though they led to violent and irrational behaviour. Now that " diseases of the mind can be classified, of the mind" is not mere surplusage.

Hill v. Baxter [1958] 10. B. 277 is relied on. Applying it to the facts of this case, there was no intention to do the act and therefore no assault in law. There was no mens rea. However, there might be liability if sensible medical advice had not been followed. Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386. 411 and 412 (in which Lord Denning approved Reg. v. Kemp [1957] 1 Q.B. 399 and disapproved Reg. v. Charlson [1955] 1 W.L.R. 317) is distinguishable on the facts. It was a very different case concerned with evidence. The defendant was charged with murder and it was held that the defence of automatism could be available in rare circumstances if there was a proper evidential basis. In Reg. v. Quick [1973] Q.B. 910 the concept of " disease of the mind" was considered and it was held that a malfunctioning of the mind of transitory effect caused by some external factor (such as insulin) could not be said to be due to disease and did not support a verdict of insanity, and the defendant was entitled to have his defence of automatism left to the jury. [Reference was made to Reg. v. Isitt [1978] R.T.R. 211.

In Hill v. Baxter [1958] 1 Q.B. 277, 285 Devlin J. said: " If disease is not the cause, if there is some temporary loss of consciousness arising accidentally, it is reasonable to hope that it will not be repeated and that it is safe to let an acquitted man go entirely free." In the present case the risks of a recurrence are small.

S. G. Mitchell for the Crown. Two questions have been raised on this appeal: (1) is epilepsy a disease of the mind? If so, (2) are the M’Naghten Rules applicable where the evidence shows a suspension of reason as opposed to a defect of reason?

On the authorities, the court should follow the common view and hold that epilepsy is a disease of the mind. It is not being said here that the appellant was " acting automatically." He suffered from what the defendant suffered in Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386, and no one in the House of Lords suggested in that case that psychomotor epilepsy was not a disease of the mind. When that case was decided, the broad nature and consequences of an epileptic attack were known.

The courts have operated the phrase "disease of the mind" for a long time in a wide and unrestricted way. In Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386, 412, Lord Denning said: "any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital…" In the present case there was directed, not accidental, violence.

On the question whether there is a defect of reason if reason is suspended, reliance is placed on Reg. v. Burns (Dafydd) (1973) 58 Cr.App.R. 364. In that case, (which was decided after Reg. v. Quick [1973] Q.B. 910) according to medical evidence a combination of disease which did not itself bring the defendant within the M’Naghten Rules, alcohol and the drug Mandrax, accounted for what he did. It was held that insanity and automatism should have been left to the jury. It is authority for the proposition that there may be a defect of reason (within the M’Naghten principles) whether or not reason has been suspended. Disease of the mind covers malfunction. One cannot distinguish between suspension of reason and maloperation.

The present case is distinguishable from Reg. v. Quick [1973] Q.B. 910 because here there was no external factor causing the malfunction of mind. It has always been accepted that the M’Naghten Rules can operate harshly, but the principles of those Rules apply in this case.

Cur. adv. vult.

December 9, 1982. LAWTON L.J. read the following judgment of the court. On January 14, 1982, at the Central Criminal Court, this appellant pleaded not guilty to causing grievous bodily harm with intent to do grievous bodily harm (count 1) and to inflicting grievous bodily harm (count 2). He did not challenge the prosecution’s evidence that he had inflicted grievous bodily harm on an elderly man named Payne, aged 80. His defence was that he had done so whilst in the final stage of recovering from a minor seizure due to epilepsy. According to the medical evidence which was called on his behalf, the onset of this kind of seizure is marked by the discharge of electrical impulses into the brain which react on centres controlling its functions, one of which is memory. During the recovery stage, known to doctors as the post-ictal stage, the sufferer does not know what bodily movements he may be making.

At the close of the appellant’s case, the trial judge, Judge Lymbery, ruled that the defence put forward was one of " automatism by reason of insanity rather than automatism simpliciter." If the jury accepted the defence evidence, as they were likely to do, there being no challenge by the prosecution either to the factual evidence given by the appellant or to the opinions on medical matters given by the two experienced consultant physicians who were called, the verdict would have been not guilty by reason of insanity and the judge would have had to order that the appellant should be committed to such hospital as might be specified by the Secretary of State: see Criminal Procedure (Insanity) Act 1964, section 5.

Understandably, this prospect did not attract the appellant. On the advice of his counsel, he asked for leave to change his plea on count 2 to one of guilty to assault occasioning actual bodily harm. The judge agreed and the prosecution accepted it. The jury, by direction, returned a verdict of guilty to assault occasioning actual bodily harm. The trial ended with the appellant being put on probation for three years.

The appellant now appeals against his conviction on the ground that the judge was wrong in ruling that on the evidence a defence of " automatism simpliciter" was not available to him, thereby depriving him of a likely verdict of not guilty.

The appeal brings out starkly, untainted by the possibly bogus element of most defences of automatism, two problems which from time to time have to be considered by the courts. They are these. First, whether persons who have no understanding of what they are doing because of an inherent morbid condition of their brains, should be regarded as insane in law. Secondly, whether persons suffering from minor epileptic seizures (often referred to as petit mal but more accurately as a temporal lobe epilepsy or psychomotor epilepsy)-and many do-can be said to be insane in law when they are having such a seizure. According to the medical evidence in this case, it is rare (Dr. Fenwick, who is in charge of the neuro-psychiatric epilepsy unit at the Maudsley Hospital, said it is "extremely rare") for a sufferer from petit mal to act violently during an epileptic seizure but it can occur and it is unpredictable whether and when it will.

The appellant has suffered from epilepsy since childhood and before 1979 he had had grand mal fits. He had had the misfortune to suffer brain damage on two occasions; once as the result of an accident, the second time as the consequence of an assault. The brain damage on this occasion had been serious. His brain damage tended to retard his recovery from fits. He had had fits whilst working at the Tate Gallery, and on occasions there he had shown aggressiveness towards anyone trying to help him when he was having a fit. According to the medical evidence, this does occur. It is more in the nature of pushing helpers away than doing violence to them.

He had been under Dr. Fenwick’s care at the Maudsley Hospital since 1977. He was given drugs to control his fits. They reduced their frequency but did not stop them altogether. In May 1981, there were medical reasons to believe he had not been taking the full dosage which had been prescribed for him, but this may have been due to a misunderstanding between him and the hospital.

On May 8, 1981, the appellant and Mr. Payne, who were on good terms with one another, were sitting chatting in a flat of a neighbour, Mrs. Killick. According to the appellant, whose evidence was not challenged, he next remembered standing by a window and seeing Mr. Payne, who had sustained injuries to his face, on the floor. The appellant said that he remembered asking Mr. Payne what he had done to his face. He then saw a cigarette on the floor, which he knew must have been his as he was the only smoker present. He suspected that something had happened to him. He left the flat but returned almost at once and asked Mrs. Killick whether anything had in fact happened to him. She told him that he had kicked Mr. Payne, adding: ‘ You're not well, Pat." He said that he had no memory of what had happened.

The two physicians, to whom we have already referred, gave evidence about the nature of petit mal and its effect on the functions of the brain. Dr. Fenwick gave a detailed account of what happens during a seizure. He said that sufferers from this kind of epilepsy would not have any memory of what they had done and would not be conscious of doing what they did. When re-examined, he was asked what was the medical definition of disease of the mind. He answered as follows:

"It is a disorder of the highest level of brain function which we normally think of as mind, involving consciousness, attention, perception, feelings, co-ordinating motor activity and thinking and reasoning in some proportion. This disorder must be prolonged for a period of time, usually more than a day. These disorders of brain function fall into classes with specific signs and symptoms and are known as mental illnesses."

Dr. Pamela Taylor agreed with this definition with the qualification that, in her opinion, the disturbance should last for a minimum of one month. The prosecution called no medical evidence.

The starting point for consideration of the issues which arise in this case is to consider what at common law, before 1800, had to be shown to rebut an inference that an unlawful act had been done maliciously. A vivid illustration is provided by the trial of Edward Arnold for maliciously and wilfully shooting at Lord Onslow.

It is reported verbatim: Arnold's Case (1724) 16 St.Tr. 695. The evidence established that the defendant had bought powder and shot, he went up to Lord Onslow with a cocked gun, took aim and fired. Evidence was called on the defendant’s behalf to prove that he was mad. What was established was that for a long time he had behaved eccentrically, looked and talked in a wild way, often to himself. There was some evidence that he suffered from delusions, as, for example, that imps danced in his room all night. He was clearly suffering from what would now be called a mental disorder within the meaning of the Mental Health Act 1959, but his brain was functioning so as to give him understanding and memory of what he was doing when he aimed a shot at Lord Onslow. Counsel for the Crown submitted that the evidence did not entitle the defendant to be acquitted.

Tracy J. directed the jury, at p. 764:

"This is the evidence on both sides. Now I have laid it before you; and you must consider of it: and the shooting my Lord Onslow, which is the fact for which this prisoner is indicted, is proved beyond all manner of contradiction; but whether this shooting was malicious, that depends upon the sanity of the man. That he shot, and that wilfully [is proved] but whether maliciously, that is the thing: that is the question; whether this man hath the use of his reason and sense? If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever; for guilt arises from the mind, and the wicked will and intention of the man. If a man be deprived of his reason, and consequently of his intention, he cannot be guilty; and if that be the case, though he had actually killed my Lord Onslow, he is exempted from punishment: punishment is intended for example, and to deter other persons from wicked designs; but the punishment of a madman, a person that hath no design, can have no example. This is on one side. On the other side, we must be very cautious; it is not every frantic and idle humour of a man that will exempt him from justice, and the punishment of the law. When a man is guilty of a great offence, it must be very plain and clear, before a man is allowed such an exemption; therefore it is not every kind of frantic humour or something unaccountable in a man’s actions, that points him out to be such a madman as is to be exempted from punishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment;…"

Arnold was found guilty and sentenced to death. Execution was respited. He died in gaol 30 years later.

At common law, so it seems to us, this appellant could have asked for a verdict of not guilty by reason of the fact that his epilepsy, which would have been regarded as a visitation of God, had totally deprived him of his understanding and memory. The injustice of such a restricted conception of insanity was clear. The law developed at the end of the 18th century in order to ensure that justice could be done to those who, although not wholly deprived of their understanding and memory, suffered from delusions of a kind which took control of their reasoning and intellectual faculties.

In Hadfield's Case (1800) 27 St.Tr. 1281, the defendant having been charged with high treason in attempting to assassinate King George III, a defence of insanity was raised. The Attorney-General, when opening the case for the Crown, stated what he submitted was the common law on insanity and gave examples of those who were deemed not responsible, including " a person who is suffering the severity, for instance, of a violent fever." Such a person "may do an act of which he is perfectly unconscious, and for which, therefore, he cannot be deemed to be responsible" (see p.1286).

Erskine, who appeared for the defendant. accepted that in the past there had had to be a total deprivation of understanding and memory to support such a plea but he went on to submit that the concept of legal insanity should be extended to include delusions. The presiding judge, Lord Kenyon, having heard the evidence called by Erskine and with the concurrence of his brethren and the Attorney-General, virtually directed the jury to acquit, which they did, their verdict being as follows: " We find the prisoner is not guilty; he being under the influence of insanity at the time the act was committed." It was accepted that Hadfield ought not to be discharged but remanded to the confinement from which he came. The statute, 40 Geo. 3, c. 94, made his continued confinement lawful.

Hadfield's Case was an extension to the common law concept of insanity as a defence and nothing more. M'Naghten's Case (1843) 10 Cl. & Fin. 200, called for consideration of a defence of insane delusion. It was said on the defendant’s behalf that he was not capable of exercising any control over acts which had a connection with his delusion. M’Naghten was acquitted on the ground of insanity. The discussion in the House of Lords which followed this acquittal brought about the well-known answers which all the judges (Maule J. dissenting) gave to the questions which their Lordships put to them. The questions themselves show that what was being considered was the law relating to criminal acts done by a person alleged to be suffering from insane delusions. The well-known words, "the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong," aptly refer to someone whose mental faculties such as consciousness, attention, perception, feeling, co-ordination and thinking are working but not as they should do. They are not so apt to apply to an accused’s mental state when his brain, because of epilepsy, cannot function at all in a way which is relevant to criminal liability. If a man does not know what he is doing, in no legal sense can the physical movements of his limbs which cause injury or damage to others be said to be his acts. The higher levels of brain function have not been working at all. His mind, in the ordinary sense of that word, has not gone with his physical movements. Absence of relevant brain function rather than malfunctioning of mind led to Mr. Payne being injured. The pre-1800 common law concept of insanity took in acts brought about through the absence of relevant brain function.

Section 2 (1) of the Trial of Lunatics Act 1883, as amended by the Criminal Procedure (Insanity) Act 1964, provides:

"Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict that the accused is not guilty by reason of insanity."

If the evidence at a trial goes to prove insanity, the issue is raised even though the defendant does not want it raised. There is no statutory definition of insanity and there never has been one for the purposes of the criminal law. The answers given by the judges to the House of Lords following M'Naghten's Case were not given in the course of any judicial proceedings. It follows that the special verdict has to be returned whenever there is evidence of a total lack of understanding and memory due to a morbid inherent condition of the brain. Epilepsy brings about such total lack of understanding and memory as can other morbid inherent conditions of the brain.

We appreciate that this approach to the effects of insanity upon responsibility for acts which, prima facie, are criminal, differs from that which has been made by other judges of great experience. We have been led to it by consideration of some of the old cases and have been unable to find any reason why the restricted concepts of the common law should not still apply to those cases to which those concepts would have been applied before the law took a humane step forward so as to excuse from criminal liability those who suffered from insane delusions.

We do not consider it necessary to review the cases which have dealt with insanity by way of the concept of "disease of the mind." in so far as that concept differs from the pre-1800 concept. They were all considered in Reg. v. Quick [1973] Q.B. 910, which stressed that such a malfunction of transitory effect caused to the body by some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences, could not fairly be said to be due to disease. The Crown in this appeal did not seek to argue that Quick was wrongly decided.

It follows that this appeal must be dismissed. To some, this may seem a harsh decision; but it should be remembered that persons who, through disease, cause injury to others and may do so again, are a potential danger to all who may come into contact with them. It is in the public interest that they should be put under medical care for as long as is reasonably necessary for the protection of others, but no longer. The modern form of order for confinement following a special verdict gives the Secretary of State a wide discretion as to the kind of hospital to which a defendant should be sent and how long he should stay there.

As we have already said, this appellant could have sought a verdict of not guilty by reason of insanity. Indeed, on the undisputed evidence and on the ruling of the trial judge, which we have held to be correct, perhaps such would strictly have been the right verdict. The acceptance by the judge and the prosecution of a plea of guilty to assault occasioning actual bodily harm might accordingly be said to have been illogical but merciful. However, in the particular circumstances of this case, it was entirely proper and, in our opinion, as in that of the trial judge, enabled justice to be done.

Appeal dismissed.

Certificate that point of law of general public importance involved, 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 by reason of insanity."

Leave to appeal refused.

Solicitors: Solicitor, Metropolitan Police.

[Reported by MISS EIRA CARYL-THOMAS, Barrister-at-Law]

February 10, 1983. The Appeal Committee of the House of Lords (Lord Diplock, Lord Keith of Kinkel and Lord Brandon of Oakbrook) allowed a petition by the appellant for leave to appeal.

The appellant appealed.

Lionel Swift Q.C. and Bruce Speller for the appellant. There are six submissions. (1) For the purposes of the criminal law, an act involves the determination of the mind or the exercise of the will. If that is right an act committed by a person who is wholly unconscious, or wholly committed during a period of unconsciousness, is not to be regarded as an act. (2) Unless there is a determination of a functioning mind or an exercise of the will, the concept of insanity is not relevant. Insanity is concerned with defective reasoning and defective intellect not the absence of reasoning or intellect. (3) The M'Naghten Rules M'Naghten's Case (1843) 10 Cl. & Fin. 200 contain an exhaustive definition of " insanity" for the purposes of section 2 of the Trial of Lunatics Act 1883 (46 & 47 Vict. c. 38) (as amended by section 1 of the Criminal Procedure (Insanity) Act 1964). There are two bases for that proposition: (i) the Rules are wide enough to cover all cases where there is a functioning mind; and (ii) there is a body of authority which has held them to be exhaustive. (4) On the basis of the M’Naghten Rules, the appellant was suffering not from a defect of reason, but from an absence of reason. He was not suffering from a disease of the mind, which is a disease concerned with thinking about things, but from a disease of the brain, in the form of abnormal discharges within the brain which suspended the operation of the mind. (5) The present case is distinguishable from Bratty v Attorney-General for Northern Ireland [1963] A.C. 386, since there the medical experts agreed that psychomotor epilepsy, if it existed, was a defect of reason due to a disease of the mind. (6) Even if the M’Naghten Rules are not exhaustive of insanity, the concept still applies only to a conscious act.

The unusual feature of the present case is that the whole of the actus reus occurred within a period of unconsciousness. The case does not raise the problems associated with crimes of basic intent, where part of the actus reus comes before the period of unconsciousness. The whole basis of the defence of automatism is that there is no criminal liability unless there was a determination of the mind or an exercise of the will: Hill v. Baxter [1958] 1 Q.B. 277. What is in issue is whether there was a loss of functioning of the higher levels of the mind. The medical evidence is that the appellant was unconscious in that he did not know what he was doing, and the Court of Appeal’s certificate takes that as the factual basis. It is accepted that the evidence does not show that the appellant’s actions were completely uncontrolled by his brain and were a mere muscular spasm, but there was certainly no exercise of the will. Such an act, not regulated by the higher functions of the brain and so involuntary, has never been regarded as an "act" for the purposes of either automatism or insanity: Reg. v. Charlson [1955] 1 W.L.R. 317 and Reg. v. Isitt [1978] R.T.R. 211, 216. See also Blackstone's Commentaries, 5th ed. (1773), p. 21, Holme's Common Law (1881), p. 54, Reg. v. Holmes [1960] W.A.R. 122, 125; Reg. v. Joyce [1970] S.A.S.R. 184, 191 and Fain v. Commonwealth (1879) 39 Am. Rep. 213, 216, 217-219.

The only cases where it has been suggested that an act done in a state of total unconsciousness in the above sense can be part of the actus reus are Reg. v. Kemp [1957] 1 Q.B. 399, where it was held inter alia that a disease of the mind included a disease affecting the mind, an isolated passage of Lord Denning in Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386, 410, and in the Court of Appeal in the present case. The words in the M'Naghten Rules, " [did not] know the nature and quality of the act he was doing," are not apt to embrace a situation where the defendant did not know he was acting at all: see Hale's History of the Pleas of the Crown, 2nd ed. (1800), vol. 1, p. 29. Arnold's Case (1724) 16 St.Tr. 695 and Hadfield's Case (1800) 27 St.Tr. 1281 dealt with delusions and not with involuntary acts. Those cases are not reliable authorities for the proposition that a person suffering from epilepsy is insane for the purposes of the criminal law, since both concerned mental illness and not epilepsy, and no reference was made to epilepsy (upon which in any event medical science in those days may not have been sufficiently advanced to give an opinion). [Reference was made to Rex v. Offord (1831) 5 C. & P. 168. A complete absence of reason, as distinct from a distortion of reason, is not a matter which attracts the attention of the criminal law, because some element of exercise of the will is required: hence the careful choice of the words " nature" and "quality" in the M’Naghten Rules. The M’Naghten Rules were held to be exhaustive of the concept of insanity in Rex v. Holt (1920) 15 Cr.App.R. 10 and Rex v. True (1922) 16 Cr.App.R. 164.

The evidence in Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386 was quite different from that in the present case, and the issues arising here were not there argued. In Bratty the House was considering whether, if an " unconscious" act in the sense of defect of reason was in question, there was any alternative basis for the defence of automatism. It was decided that if the jury rejected " disease of the mind," there was no room for an " unconscious " act. Unlike in the present case, it was accepted that epilepsy was a disease of the mind. The House said that if unconsciousness arose by reason of a disease of the mind, the M’Naghten Rules applied, but the word " unconscious" was not being used in the sense the appellant contends for: see for example per Viscount Kilmuir L.C. [1963] A.C. 386, 400, 402. Lord Morris of Borth-y-Gest would not have needed to rehearse the concept of involuntary acts in the way he did at pp. 415 and 417-418 if he had in mind all possible forms of unconsciousness. Passages on pp. 417 and 418 suggest that Lord Morris of Borth-y-Gest envisaged the possibility of forms of automatism which went beyond insanity.

Even if absence of reasoning is the same as defective reasoning, there is still an issue as to whether psychomotor epilepsy is a mental disease. Not every disease of the brain is a disease of the mind. For example, a patient who has suffered brain damage after a motor accident would not be described as mentally ill. Regard must be had to the medical evidence in each case, and the time scale is always relevant. A person who has a five-minute seizure would not today be described as insane. If it were otherwise, and he were held to have a " disease of the mind," any mental aberration at all resulting in a brief suspension of the thinking faculties, during which the actus reus was committed, would have to entail a finding of insanity. On the evidence of Dr. Fenwick and Dr. Taylor, the appellant does not have a " disease of the mind." [Reference was made to Williams v. Williams [1964] A.C. 698. 720, per Lord Reid.]

The law at the moment is in an unsatisfactory state since, on the authority of Reg. v. Quick [1973] Q.B. 910, where all the authorities were considered, someone who has taken too much insulin must be held not to be suffering from a mental disease, whereas if he has not taken enough medicine, on the Court of Appeal decision in the present case he is mentally ill. The distinction is not a happy one. Nor is there any substantial material difference between a diabetic and an epileptic. [Reference was made to Reg. v. Clarke [1972] 1 All E.R. 219.]

It might seem to be contrary to public policy, from the point of view of the protection of the public, to hold that the appellant is entitled to be acquitted, but there are three reasons of public policy why the appeal should be allowed. (1) Cases where the whole actus reus occurs during a period of complete unconsciousness are very rare. (2) There are ample powers under Part V of the Mental Health Act 1959 to deal with the instant type of case. (3) The idea of ascribing criminal liability for an act done during unconsciousness runs counter to cherished notions in English law, and it is an offence to common sense and sensibilities to dub as insane a sufferer from psychomotor epileptic seizures.

S. G. Mitchell and V. B. A. Temple for the Crown were not called on.

June 23. LORD DIPLOCK. 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 May 8, 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 eyewitness was that of 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 L.C. had put it in Bratty v. Attorney-General 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 1 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 neuro-psychiatry 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, ante, p. 160c, 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 by reason of insanity."

My Lords, for centuries up to 1843, the common law relating to the concept of mental disorder as negativing responsibility for crimes was in the course of evolution, but I do not think it necessary for your Lordships to embark upon an examination of the pre-1843 position. In that year, following upon the acquittal of one Daniel M'Naghten, for shooting Sir Robert Peel’s secretary, in what today would probably be termed a state of paranoia, the question of insanity and criminal responsibility was the subject of debate in the legislative chamber of the House of Lords, the relevant statute then in force being the Criminal Lunatics Act 1800 (39 & 40 Geo. 3, c. 94) "for the safe custody of insane persons charged with offences," which referred to persons who were " insane " at the time of the commission of the offence, but contained no definition of insanity. The House invited the judges of the courts of common law to answer five abstract questions on the subject of insanity as a defence to criminal charges. The answer to the second and third of these questions combined was given by Tindal C.J. on behalf of all the judges, except Maule L, and constituted what became known as the M’Naghten Rules. The judge’s answer is in the following well known terms (see M’Naghten’s Case (1843) 10 Cl. & Fin. 200, 210):

"the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction., and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."

Although the questions put to the judges by the House of. Lords referred to insane delusions of various kinds, the answer to the second and third questions (the M’Naghten Rules) is perfectly general in its terms. It is stated to be applicable "in all cases" in which it is sought " to establish a defence on the ground of insanity." This answer was intended to provide a comprehensive definition of the various matters which had to be proved (on balance of probabilities, as it has since been held) in order to establish that the accused was insane within the meaning of the statute of 1800 which, like its successors of 1883 and 1964, make it incumbent upon a jury, if they find the accused to have been "insane" at the time that he committed the acts with which he is charged, to bring in a verdict neither of "guilty" nor of " not guilty" but a special verdict the terms of which have varied under the three successive statutes, but are currently " not guilty by reason of insanity."

The M’Naghten Rules have been used as a comprehensive definition for this purpose by the courts for the last 140 years. Most importantly, they were so used by this House in Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386. That case was in some respects the converse of the instant case. Bratty was charged with murdering a girl by strangulation. He claimed to have been unconscious of what he was doing at the time he strangled the girl and he sought to run as alternative defences non-insane automatism and insanity. The only evidential foundation that he laid for either of these pleas was medical evidence that he might have been suffering from psychomotor epilepsy which, if he were, would account for his having been unconscious of what he was doing. No other pathological explanation of his actions having been carried out in a state of automatism was supported by evidence. The trial judge first put the defence of insanity to the jury. The jury rejected it; they declined to bring in the special verdict. Thereupon, the judge refused to put to the jury the alternative defence of automatism. His refusal was upheld by the Court of Criminal Appeal of Northern Ireland and subsequently by this House.