Scottish High Court of Justiciary Decisons

LORD STRACHAN .—Ladies and gentlemen of the jury, two charges of murder are preferred against the accused in this case. He is charged in the first charge with murdering his wife, and in the second charge with murdering his daughter.

The case is unusual both in respect of the means by which it is alleged these people were killed and in respect of the special defence of insanity which has been lodged. The case is a difficult one, because difficult questions both of fact and of law are involved. It is also, as you will appreciate, a serious case. You are aware, no doubt, that a verdict of guilty under one or both of the charges would involve very serious consequences for the accused, but the first thing I want to say to you is that in this case the death sentence is not involved. By a comparatively recent statute Parliament made distinctions between types of murder. Certain types of murder were classified as capital murder, and it is only in capital murders that the death sentence is now pronounced. This is not a capital murder. You, of course, are not really concerned with any question of sentence; that is entirely a matter for me, but in view of the recent change in the law, and in case you might be under any misunderstanding, I thought it preferable to make that point clear at the outset.

The next thing I want to say to you is to put before you a brief and somewhat overhead and summarised statement of the main questions which arise in the case, and the logical order in which they arise and in which you must consider them. I think it would help you to have such an overhead picture in your mind.

You are concerned not only with the question of whether the accused committed the acts charged against him; you are also concerned with his mental condition at the time of the alleged offences. It is not suggested that the accused is insane now, and you must proceed upon the footing that he is now sane. If he were insane now he could not have given instructions for his defence, and the case would not have proceeded before you in the form in which it has taken. If this special defence that he was insane at the time is established that would mean that even if he did commit the acts charged, he was not responsible for his actions in law, and he could not be convicted of the crimes. If the special defence in your final view is not established, that is, if you were to hold that he was not insane at the time, you would still have to consider whether his mental condition was such as to result in his being only partially responsible for his actions, whether his responsibility was diminished, and you would have to consider in that connexion whether the quality of the crime was reduced from murder to culpable homicide.

Now in these circumstances I think there are three main questions that arise, and this is the overhead summary that I propose to give you.

The first question is:—Has the Crown proved beyond reasonable doubt that the accused committed the acts with which he is charged under one or other or both of the charges in the indictment? That is the first question, which is purely a question of fact for you—has the Crown proved beyond reasonable doubt that the accused committed the acts charged? If you find that he did not commit the acts, or that it is not proved beyond reasonable doubt that he committed the acts, that would be an end of the case, and your verdict in that event would have to be one of acquittal, either not guilty, or, should you prefer it, a verdict of not proven.

If, on the other hand, you find it proved beyond reasonable doubt that the accused did commit the acts, in one or other charge, you have to go on to the second question, which is this: Was he insane at the time of those acts? If you find that he was insane at that time, your verdict must contain a finding to that effect, and I shall later explain to you the terms which your verdict should take.

The third question arises if you find that he committed the acts charged, and that he was not fully insane at the time. The question in that event would be whether you are to convict him of the crime of murder as libelled, or whether, owing to his mental condition, his responsibility was diminished to such an extent as to reduce the quality of the crime to culpable homicide.

You must address your mind to those three questions, and in the order in which I have stated them. I propose to divide my charge to you into three sections, corresponding to these questions, and in the fulfilment of my duty to you it is necessary that I should deal with each of these questions in much greater detail, but before I pass to the details of the questions involved, I think it is appropriate to speak to you about certain general principles with which you must comply in reaching your answers to those questions.

In regard to those general principles I wish to say in the first place that your verdict must be based on the evidence which has been led before you in this Court, and must not be influenced by extraneous circumstances. You must not be deterred from doing your duty by reason of the serious consequences involved for the accused, and, on the other hand, you must not be influenced against the accused by reasons of any feelings of revulsion at the alleged crimes. You have to consider the evidence and weigh it impartially and judicially. You are in the position of judges, and you have to say on the evidence what facts you consider to be proved in the light of the directions on law which I give you. Where questions of law are involved I shall give you directions which you must accept. In other words you must take the law from me, but, on the other hand, on all questions of fact you are the only judges. In a case of this kind I must refer to the facts in the fulfilment of my duty, but in so far as I do refer to the facts I do so only for your assistance. It is your decision on the facts that counts and not mine. In so far as I may inadvertently indicate any conclusion on a question of fact where there is a real dispute in the matter, you must ignore that and come to your own decision on the question raised.

Now as to the burden of proof. On the question whether the accused committed the acts with which he is charged, the burden of proof lies wholly on the Crown. On the special defence of insanity there is a burden upon the accused, but different considerations apply there, and I shall deal with these later. In the proof of the Crown case, the burden of proof lies wholly on the Crown. It is a fundamental principle of our law that an accused person is presumed to be innocent until he is proved to be guilty. It is for the Crown to prove guilt, and not for the accused to prove his innocence.

As to the standard of proof which you are to require from the Crown, the standard is proof beyond reasonable doubt. In so far as the evidence leaves in your mind a reasonable doubt, you must give the accused the benefit of that doubt. Now by the words "reasonable doubt" I just mean what those words plainly say, not any philosophical or fanciful doubt, or any mere conjecture, but some doubt which to your minds as men and women of the world is based upon reasonable grounds, some doubt such that if it arose in the management of your own affairs you would regard as being a reasonable doubt. If there is any such doubt, then, as I have said, you must give to the accused the benefit of that doubt.

I pass now to what I have called the first main question in this case. Has the Crown proved beyond reasonable doubt that the accused committed the acts charged? I do not think that Mr Reith, for the defence, went into this branch of the case at any great length, but you must bear in mind that there is no admission that the accused did commit those acts. There could be no such admission, and you cannot hold that he did commit the acts unless the Crown has proved that beyond reasonable doubt, and remember that the onus on this matter is wholly on the Crown.

In connexion with this question I think you must bear in mind the alleged loss of memory from which the accused says he suffered. If that loss of memory is genuine—and that is a question for you—if it is genuine, the defence may be under a very considerable disadvantage in respect that facts which might otherwise have been available, had the accused remembered them, have not been put before you because they have not been disclosed to the accused's advisers. There may be a very considerable disadvantage to the defence through that fact if the loss of memory is genuine, and, if you take that view, you must make full allowance for that when you are considering the question of whether the Crown has proved the case, and I think you must increase in your mind the burden of proof which you are to require from the Crown because of that matter.

Now there are two charges. I do not think you have a copy of those charges and therefore it may be convenient if I finally read them to you. The first charge is that on 4th or 5th July, that is on the Saturday night or the Sunday morning about which you have heard, in the house occupied by the accused at Balcomie Farm Cottages, he assaulted his wife, administered chloroform to her, held an object over her face, asphyxiated her, and murdered her. The second charge refers to the daughter, and is that, at the same time and in the same house, he assaulted his daughter, administered chloroform to her, held an object over her face, asphyxiated her, and murdered her. You must deal with those two charges separately, and you must come to a separate verdict upon each charge. You will be asked for your verdict on each charge separately, and you must have a verdict referable to each charge ready to return. If is of course open to you, should you find reason for so doing, to come to a different verdict on one charge from the other. Each charge must depend upon the evidence which is relevant to it. But of course while you must consider the charges separately, they both arise from the alleged actings of the accused in the cottage on the Saturday night or early Sunday morning, and some of the evidence is relevant to both charges.

There are certain facts in the case about which I think you will have no doubt at all. The accused's wife and daughter died on that Saturday night or Sunday morning, and the medical evidence is that in each case the cause of death was asphyxiation. That is the conclusion of Dr Rentoul and Dr Weir after a thorough post-mortem examination. In regard to the daughter there is also the evidence of Dr Morris from his examination after finding the body. He concludes that the daughter did not die a natural death, and that she probably died of asphyxiation due to her being smothered by some object held forcibly over her face. That is the medical evidence, and I think you will not find any ground for questioning that, but it is entirely a matter for you to be satisfied upon.

Then there is the report of the analysts, and the effect of their evidence, coupled with that of Dr Rentoul and Dr Weir, is that chloroform was administered to both the wife and the daughter shortly before their deaths. Now, it is for you to consider what the evidence of the doctors and the analysts come to as to the effect of the chloroform. It would seem that they inclined to the view, the doctors inclined to the view, that chloroform by itself did not cause the death. One at least of them suggested that it had been used to overcome resistance, or might have been used for that purpose, and that the victims had been asphyxiated after unconsciousness was produced by the chloroform. Well, this is a matter of fact which is entirely for you to decide. You have to make up your mind what has been proved by the Crown in that connexion. It is for you to say if you think it proved that the chloroform was used, and, if it was, I think you will be of the view that the use of chloroform is one of the outstanding peculiarities in this case.

So much for the way in which it is alleged that the victims met their death. That is the Crown case, and of course you have nothing to put against that, owing to the loss of memory by the accused, but the important thing is to consider whether the Crown has proved that the wife and daughter were killed by the accused. All that I have been so far referring to is how they met their death; the main question for you to ask is whether it is proved that it was the accused who killed them. What links are there between the deaths and the accused?

Well, I think in the first place, you must consider this question of chloroform. The accused admittedly kept a bottle with chloroform in it. That bottle has been produced. The contents of the bottle were said to be pure chloroform by two police officers M'Lellan and Cook, who are scientists and members of the scientific department in the Glasgow Police. The evidence is that the accused bought chloroform, from Boots in Perth, in order to use it on sheep. The accused himself said he did not know any other shepherd who uses chloroform. The grieve at Strathmiglo said he never knew of a shepherd using chloroform before, but he did see the accused, you remember, using it on a ewe on one occasion. So it would appear that the accused may well have obtained the chloroform for purposes connected with sheep, but it is for you to consider whether there is anything sinister in the fact that he acquired and kept the chloroform. There is evidence to suggest an innocent use for which that chloroform was acquired. I wish to direct your attention, however, to some further points about this chloroform. I think these are points you must take into consideration. The evidence of the dispenser at Boots was that the chloroform was supplied in a poison bottle, not in the bottle which is produced. The accused, it would appear, must have transferred the chloroform to that bottle, but I think he admitted in his evidence that he could not explain why he did so. He said something about the children, which I did not understand or catch. You will remember what he said. At one stage of his evidence he seemed to be denying that he had transferred it to the bottle which is produced. He told his employer that the bottle contained ether. He also told his son William that the bottle contained ether. Now this bottle was found by Constable Brown at Worcester, underneath the driver's seat in the car along with some small tools and a piece of rag. The accused said he kept it there, and that it had been there since the lambing season in April. His son, you will remember, said it was sometimes on the kitchen cabinet, and sometimes in the glove box of the car. The evidence of the son and the accused are not quite the same on that matter. There may be nothing at all in these points, it is for you to judge, but you should bear them in mind when considering whether there was anything sinister in the accused acquiring the chloroform, and when you are making up your mind whether you are to believe the evidence given by the accused himself. But the main point about the chloroform is that it would appear, subject to your judgment it would appear, to provide some link between the accused and the killings. If the bottle was kept in the car, as the accused said it was, under the driver's seat, and if it was used to overcome the resistance of the wife and daughter, could anyone other than the accused have found it underneath the seat? As the chloroform was not in its original bottle, and is not labelled chloroform, could anyone other than the accused have recognised that it was chloroform and could be used for the alleged purpose? That is one link which the Crown put before you.

The second link is of course that the two victims were last seen alive on the Saturday evening going towards the cottage, and the accused then went to the cottage with his wife. All the other children were at Dunblane. As far as the evidence goes it would seem to be that only the accused, his wife, and his daughter were in the cottage in the late hours of the Saturday evening. The evidence of David Imrie is that he saw the accused and his wife on the path which crosses the field in front of the cottage walking towards the cottage at about half past ten, and Mrs Imrie and David Imrie at about a quarter past eleven left the daughter Christine going to the cottage. You will remember that the accused's car was seen standing at the cottage somewhere about nine or ten o'clock. As far as the evidence other than that of the accused is concerned, there is then a gap of about five hours until about 4.35A.M., when Mrs Paterson says she saw the car drive away and thought that the accused was driving it. She was a little indefinite on the last point, but you will remember she had been wakened in the early hours of the morning by cats, and 4.35 is the time, I think, when she said the car drove away. Well, that is a gap of about five hours from the time when the daughter was seen going to the cottage. Those five hours cover the probable time of the deaths, according to the medical evidence, and you may think there is some significance in the fact that at the end of the five hours, 4.35 A.M., the accused was still at the cottage.

Well, the first part of the gap has been filled in by the accused's own evidence to some extent. You heard it yesterday. I just want to remind you of what he said. I am reading from my notes. I do not profess that they are verbatim, and you will judge whether they are an accurate account of the evidence. The accused said that there was a quarrel, you will remember, and then he said "I got excited, tempers got heated, my temper got the better of me. I could not explain it correctly. I would just say something was coming over me." Then he said something about blood coming to his head. He went on to say he had vague recollections of his wife and daughter leaving the room. He could not say if they were going to bed, and he said:

"I was still in the living-room when I felt this thing coming over me. I had no idea how the argument ended. When I last remember seeing my wife she still had her clothes on. I think Christine would be fully dressed also."

Of course, in relation to the whole of the accused's evidence the important point arises as to whether you are to accept it as reliable and truthful. That is wholly a question for you, and on that I say nothing at all, because it is for you to say what weight you are to attach to the accused's evidence. If you accept that bit that I have read, it does indicate that there was a quarrel, when, in the accused's words, he felt this thing coming over him.

After the car left the house, as we know it did from other witnesses, in the early Sunday morning, there is the evidence of the car having been seen at various points on the road with a young female passenger asleep, or who was thought to be asleep. May I remind you that there is the witness Maxwell, who saw the car four miles from Crail. In this Court he identified the accused quite clearly, you will remember. There is the witness Herd, who saw the accused in the car at Pittenweem with a female passenger with something which looked like a bruise on her face. Herd thought the accused was like the driver, but was not certain. Flockhart saw him in Kirkcaldy and identified him clearly, and one of the witnesses, Todd, saw him at the garage a little further down the road in Kirkcaldy. Some of the Kirkcaldy witnesses do not identify the accused in their evidence, but of course that he was there there could be little doubt, because he left his diary and licence in the garage office. After that there was Colston, who saw a car in the wood in which the body was later found, and Ellis saw the car backing out of that wood at about half past seven. Neither of these witnesses could identify the accused as the driver, but they both said that the car was old and dark, and had pennants on the window. Five miles nearer Kincardine the witness Inglis got a lift, and he identified the accused without any difficulty, you will remember, and the significant thing about that piece of evidence was that five miles beyond the wood there was no passenger in the car, and Inglis sat in the passenger seat beside the driver. He saw the car finally going over Kincardine Bridge, and then there is the witness Thomson, who left it at Grangemouth, and Cairns, who supplied a fan belt at Winchburgh. Cairns could not identify the accused, but you remember he identified the car later quite definitely by the fan belt which he had supplied. There were the other people who were picked up at some place in Berwickshire, and then the car was eventually found at Worcester, and in the car at Worcester there were found behind the back of the rear seat articles of clothing, some of which belonged to the wife, some of which belonged to the daughter, and these included the striped blouse which witnesses say the wife was wearing on the Saturday evening; and near the passenger seat on the floor there was found a shoe protector, which could be the protector which was missing from one of the girl's shoes. I find it myself difficult to understand why all that clothing should be behind the rear seat in the car. It is a matter for you to consider.

The evidence to which I have just referred connects the accused principally with the death of the daughter. That is, the evidence of driving from Balcomie to the wood, and it is a strange story, this account of his driving a dead body and then hiding it. You must ask whether he would have done that if someone else had killed her.

There is not much evidence to connect him with the death of his wife. You may think that the same hand must have killed both, and you will bear in mind the fact that some of Mrs Kidd's clothing was in the car when it was found.

Now on this whole question, I remind you, if you have any reasonable doubt on either charge you must give the accused the benefit of that doubt, but you have to make up your mind on the evidence whether the first or the second, or both, charges have been proved beyond reasonable doubt. As I have said, if you find that either charge is not proved, then you must acquit the accused on that charge by a verdict of either not guilty or of not proven. But if in your view one or both are proved, then you must go on to consider the special defence, and I come now to that question of the special defence of insanity. It arises, as I have said, only if you find it proved that the accused committed the acts with which he is charged on one or other charge.

The question is—Was he responsible in law for his actions? His special defence is that he was insane. If he was insane he was not responsible, and he could not then be convicted, but he would not of course be set at liberty. If he committed the acts charged and was insane, he would be detained in a way with which you are not concerned. On this matter of the special defence of insanity, the burden of proof lies on the accused. He is presumed to be sane unless he proves that he was insane. It is for the accused to establish his special defence of insanity, but you must particularly note that the standard of proof which is required from the accused is a lower standard than that which you are to require from the Crown. You do not need proof beyond reasonable doubt on this question of insanity. The special defence will be sufficiently established if you think that, on a balance of probabilities, the accused was insane at the time. You are entitled here to base your decision upon the probabilities which in your view arise upon the evidence. In other words, if there is a doubt in your mind between sanity and insanity, you must decide in favour of that which you think is the more probable. The question is, in the light of the whole evidence—Is it probable that the accused was insane?

Now on this question I have to refer again to the alleged loss of memory from which the accused says he suffered. The position on the special defence is that the burden of proof is on the accused, but the standard of proof is the lower one to which I have referred; but again if you hold that his loss of memory was genuine, it may be that he cannot remember things which, had they been put before you, might have strengthened his proof of insanity, and therefore it may be that his solicitor and counsel are unable to lay before you some facts which might strengthen their case, and which would have been before you had the accused not lost his memory. You must give full allowance to that possibility when you are considering whether it is probable that the accused was insane. On this matter I was asked to direct you that if the evidence leaves in your mind any doubt on this question of insanity, you should, because of the amnesia or loss of memory, give the accused the benefit of such doubt. I do not think that is the correct way to deal with the matter. As I have said, you have got to balance the probabilities in relation to this question of insanity. You have to balance the case for sanity against the case for insanity, and if there is a doubt in your minds in so doing, a doubt as to which is the correct decision, you must give your decision in favour of that which is the more probable. That, I think, is the proper method of approach to this question, and you should not depart from that method because of the alleged amnesia. You must, however, make such allowance in favour of the accused as you think proper for the possibility that evidence has been lost to him, and I think you may best do that by bearing the possibility of loss of evidence in mind when you are weighing the probabilities, and you may think that you should require less weight of evidence in favour of insanity than you would otherwise have done. In other words, although there is a burden of proof on the accused on this special defence, you should, because of the amnesia, lessen the burden which is to be required of him. But of course all that applies only if you are of opinion that the loss, the alleged loss, of memory was genuine; only if you find that he did in fact lose his memory as he says.

I hope I have not been too technical, if not hair splitting, on this question. It is a rather difficult matter to put before you. I hope you have followed me. The important thing is you must make a proper allowance in favour of the accused for the possibility that owing to his loss of memory there may be facts which it has not been possible to put before you which would otherwise have been before you.

Well now, has the accused shown that it is probable that he was insane at the time of the acts charged? In answering that question it is obviously necessary that you should know what is meant by insanity in that connexion. What nature and degree of mental illness is sufficient in law to excuse a person from responsibility for his actions? That is a question of law upon which I have to direct you. You have to say whether the accused did in fact suffer from such insanity.

First of all, I come to the law. I do not find it easy to give you any legal definition of insanity such as will excuse a person from responsibility for his actions. The special defence before you is one which arises very seldom, because in most cases if a person was insane at the time of a crime he continues to be insane until the time of his trial. He is held not to be fit to instruct his defence, and the trial does not proceed. That is what usually happens. Here you have the unusual case where the accused is sane at the time of the trial, but he says "I was insane when I committed the acts."

The question really is this, whether at the time of the offences charged the accused was of unsound mind. I do not think you should resolve this matter by inquiring into all the technical terms and ideas that the medical witnesses have put before you. Treat it broadly, and treat the question as being whether the accused was of sound or unsound, mind. That question is primarily one of fact to be decided by you, but I have to give you these directions. First, in order to excuse a person from responsibility for his acts on the ground of insanity, there must have been an alienation of the reason in relation to the act committed. There must have been some mental defect, to use a broad neutral word, a mental defect, by which his reason was overpowered, and he was thereby rendered incapable of exerting his reason to control his conduct and reactions. If his reason was alienated in relation to the act committed, he was not responsible for that act, even although otherwise he may have been apparently quite rational. What is required is some alienation of the reason in relation to the act committed. Secondly, beyond that, the question in this case whether the accused's mind was sound or unsound is to be decided by you in the light of the evidence, in the exercise of your commonsense and knowledge of mankind, and it is to be judged on the ordinary rules on which men act in daily life. Thirdly, the question is to be decided in the light of the whole circumstances disclosed in the evidence. You must have regard to the evidence which has been given by the medical witnesses, but the medical evidence by itself is not conclusive. The question is to be decided by you, and not by the mental specialists. In coming to your decision you are entitled, and indeed bound, to regard the whole evidence. You are entitled in particular to consider the nature of the acts committed and the conduct of the accused at and about the relevant times, and his previous history. Those are the directions which I give you on this matter.

At one time, following English law, it was held in Scotland that if an accused did not know the nature and quality of the act committed, or if he did know it but did not know he was doing wrong, it was held that he was insane. That was the test, but that test has not been followed in Scotland in the most recent cases. Knowledge of the nature and quality of the act, and knowledge that he is doing wrong, may no doubt be an element, indeed are an element, in deciding whether a man is sane or insane, but they do not, in my view, afford a complete or perfect test of sanity. A man may know very well what he is doing, and may know that it is wrong, and he may none the less be insane. It may be that some lunatics do an act just because they know it is wrong. I direct you therefore that you should dispose of this question in accordance with the directions which I have given, which briefly are, that there must be alienation of reason in regard to the act committed, otherwise the question is one for you to decide whether the accused was at the time of sound or unsound mind.

So much for the law on this matter. What is the evidence? Well, as I have said you must have regard to the medical evidence. You have the three medical specialists, Dr Ross, Dr Stalker and Dr Devlin. I think they are all agreed that from the professional mental specialists' point of view they could not find traces of insanity in the accused. This supports the view that he was not at the time of the acts insane. Dr Ross and Dr Stalker who were adduced by the Crown were pretty clear on that matter, and I do not take up time by rehearsing their evidence.

I think I should remind you in some detail what Dr Devlin's evidence was. He thought that the conduct of the accused so far as he had been told about it, was more in keeping with what he called a "fugue" state, or a state of reduced awareness. He went on to say that in psychiatric practice a fugue state is not considered to be insanity, but he said it is a matter of degree. He said:

"I am afraid I cannot speak as to the state of the accused's mind at the time. I feel this reduction of awareness might have been of such a degree that he was completely irresponsible. I am not in a position to assess accurately the degree of amnesia that existed; some more concrete evidence would be necessary. I fear I am forced into conjecture,"

and then he later said:

"It is a matter of degree, and I am not in a position to assess it in this case."

I think that is a fair repetition of the conclusions which Dr Devlin came to on this question of whether the accused was fully insane at the time of the acts.

That is the medical evidence, the result of it, but you must bear in mind that none of these eminent mental specialists had the opportunity of examining the accused at the time in question. All they can do is to express an opinion based upon the examination of him at a time when he was admittedly sane, coupled with such information as they could gather from the accused and others as to what happened at the time. They can go no further than that, but you have to go further. You have to consider the whole facts which you hold to be proved in the evidence. You have seen the accused yourself, and you have had the facts put before you which bear upon his life from his early childhood.

Now I think you must in this matter, along with the medical evidence, take the other evidence. You have first evidence as to his early history. You will remember he himself has spoken about that, his father has spoken about it, and Mrs Steedman, his sister. The last two, his father and sister, spoke to you about an injury which he received by a drinking cup when he was four years of age. All the doctors, including Dr Devlin, seem to take the view that that injury was not such as would cause any mental disturbance, but, taking the evidence of the father, he says that all the accused's wanderings started from that time. I think the sister, Mrs Steedman, was to the same effect. You must bear that in view. Then in addition to the early history, you have the army records. I am not going into them in detail; you have heard what they contained. You must bear that in mind too. You have a good deal of evidence about his married life, the accused's married life. His wanderings continued during his married life. It seems that some wanderings followed upon quarrels with his wife. There is evidence that not all the wanderings followed upon quarrels. There is the obsession about this bus driver and his association with the daughter. I think it is fair to say, but it is for you to judge, that the accused's attitude on that matter did amount to an obsession, and there is his whole attitude to his daughter's conduct, not only in regard to this bus driver, but her conduct in general, and it was about that conduct, and particularly about Stewart apparently that the final quarrel arose. Then you must consider very carefully his conduct after the events, after the deaths of his wife and daughter. I think all the doctors agree, and you will also perhaps agree yourselves that that conduct on any view is odd, to say the least of it. He tied up his wife, apparently after death. He took some of her clothes away with him. He took his daughter in the front seat, although she was dead.

Dr Stalker was very concerned with this very odd conduct. Well of course, in that matter it is important for you to make up your mind as to whether you think he knew his daughter was dead. If he knew she was dead it certainly was very odd conduct to drive a corpse about and talk to people on the road with his daughter's dead body beside him. But supposing he thought she was only anæsthetised; is that an explanation? It is entirely for you to judge. It seems to be the case that after Kirkcaldy he disposed of the body by concealing it as best he could. Is it possible that he then realised that she was not anæsthetised, but really dead? You will remember that in Kirkcaldy one of the witnesses, I think it was Flockhart, said that this young female passenger was sitting with her head tilted right back. He took it for granted that she was sound asleep. Flockhart said to the accused:

"She is surely tired,"

and the accused answered:

"She is dead beat."

Flockhart asked him if he had been driving all night, and he said, yes.

Well, I don't propose to say any more upon this conduct after the events. It is a matter to which you must give very careful consideration, and you will give it such significance as you think proper.

But finally on this matter you must consider the alleged loss of memory, and the first important question there is to make up your mind whether it is genuine or not. It depends of course upon the accused's story. It is the accused who says he does not remember anything from the quarrel in the house to picking up the man near Grangemouth. Do you believe him? If he is only pretending then of course that would be a very useful protection against cross-examination in the witness-box, but it is for you to say whether he did in fact lose his memory. Dr Ross said it could be genuine. I think Dr Stalker said it probably was genuine, and Dr Devlin definitely took the view, I think, that it was genuine, and you will bear in mind that there was the previous history of blackouts in the army records, and they were referred to, I think, by the term "hysteric amnesia" which is much the same, I suppose, as the amnesia about which the medical witnesses in this case have spoken to you. There appears to have been a previous history of some such amnesia due to hysteria, and that means, I take it, that it was a genuine loss of memory brought on by hysterical causes. If his loss of memory was genuine, it is an important element which you must consider in deciding whether the accused was sane or insane at the time of his actings. You will consider its significance, and I think you will probably take the view that some significance would be attached to it if it commenced before the acts were committed. If on the other hand it was the horror of the acts, and the unconscious hysterical desire to forget the acts that were the precipitating cause, that would mean that at the time he committed the acts he did not suffer from amnesia, but none the less in view of the facts that it supervened and that there was previous history of it, you must take it into account when you are considering this question. May I remind you that I think even Dr Devlin said that the deaths were a more likely cause of the amnesia. He said one would be inclined to think that the deaths would be the more likely cause of amnesia, and Dr Stalker, you will remember, expressed the view that the amnesia might commence only at the date when the accused says he came to, and you will bear in mind that at Winchburgh he did seem to remember where he had lost his diary and insurance certificate. Well, ladies and gentlemen, I am sorry to have detained you so long on this question of insanity, but of course it is very largely the centre of this case.

If you find that the special defence is established, that is to say if you find that at the time of the acts charged the accused was insane, your verdict must take this form. You should find that the accused committed the acts charged—that is if you have already so decided—but further find that he was insane at the time when he committed those acts, and therefore acquit him on the ground of insanity. If he was insane, he was not responsible for his actions, and he cannot be convicted. He must be acquitted, but you should acquit him on the ground of insanity. You may have running in your mind the phrase "guilty but insane." That I believe is the English form, which is entirely illogical, because if you are insane you cannot be guilty. That is not our form of verdict. The form of the verdict is a finding that he committed the acts charged, a finding that he was insane at the time that he committed the acts, therefore acquit him on the ground of insanity. That is, if you find the special defence to be established.

If you find that he committed the acts and he was not fully insane on the balance of probabilities, then he must be convicted; and the question arises whether he is to be convicted of murder as charged, or culpable homicide, and that is the third main point to which I referred at the beginning of my charge, and to that question I come now.

Murder is the taking of human life by a person who either (a)has a malicious and wilful intent to kill or do grievous bodily harm, or (b) is wickedly reckless as to the consequences of his act upon his victim. For murder there must be an evil intent, that is a criminal intent, although it is not necessary that there should be an intent to kill. But the quality of the act which kills may be something less than murder. It may be merely culpable homicide, which means homicide which does not amount to murder, but which is none the less criminal. Culpable homicide is the name which is given in Scotland to a crime where death is caused by improper conduct, and where the guilt is less than murder. An act which would normally be murder may be reduced in its seriousness if the person who committed it was not at the time fully responsible for his actions, that is, if his responsibility was diminished, if he was only partly responsible.

If the accused in this case was fully responsible, and committed the acts charged in the indictment, that would be murder, and I so direct you. But it is said for the defence that on account of his mental condition he was at the least not fully responsible, and on that ground it is said that the quality of his acts, if he committed them, is reduced to culpable homicide.

Now here again the burden of establishing that the accused was not fully responsible rests upon the accused, and you have to require of the accused the same lesser standard of proof. In other words, you dispose of this matter also on the balance of probabilities. It is for the accused to show that on the balance of probabilities his accountability and responsibility were below normal. Here again there is a question of law and there is a question of fact. I must tell you what is necessary for the defence as a matter of law, but whether the requirements have been established on a balance of probabilities is for you to decide. Remember, it is not suggested here that the accused was fully insane, but merely that his responsibility was in some way reduced.

I am sorry that this again may be a rather technical matter, but I do not think you should dispose of it on technical terms. In telling you what the law is I can only read to you excerpts from the law as stated in another case which is regarded as authoritative, and I propose now, if you will bear with me, to read to you excerpts from a case in 1944, excerpts from a charge to the jury by the late Lord Justice-Clerk Cooper. He said this:

"Even if a man charged with murder is not insane, still our law does recognise … that, if he was suffering from some infirmity or aberration of mind or impairment of intellect to such an extent as not to be fully accountable for his actions, the result is to reduce the quality of his offence in a case like this from murder to culpable homicide—H. M. Advocate v. Braithwaite, 1945 J. C. 55, at p. 56. Lord Cooper went on to say that he had got to give the most accurate instruction he could on this delicate question, and he read to the jury a passage from a previous case saying that it seemed to him to give as explicit and as clear a statement as he could find of the sort of thing which you have to look for. The quotation is as follows: "

It is very difficult to put it in a phrase, but it has been put in this way; that there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility—in other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through cases that there is implied … that there must be some form of mental disease"—H. M. Advocate v. Savage, 1923 J C 49, at p. 51.

Now that is the end of the quotation which Lord Cooper quoted. Then Lord Cooper went on (1945 J. C. 55, at p. 57):

"The matter has been put in different words by other judges. I notice in a later case that the condition was referred to for short as partial insanity; and that this was explained as meaning ‘that weakness or great peculiarty of mind which the law has recognised as possibly differentiating a case of murder from one of culpable homicide.’ And, finally, to give you one last test, the question as put by the late Lord Clyde … ‘Was he’ [that is, the accused] 'was he, owing to his mental states, of such inferior responsibility that his act should have attributed to it the quality not of murder but of culpable homicide?—Muir v. H. M. Advocate, 1933 J. C. 46, at p. 48. You will see … the stress that has been laid in all these formulations upon weakness of intellect, aberration of mind, mental unsoundness, partial insanity, great peculiarity of mind, and the like. I am emphasising that just now because I shall have to revert to it when I come"

[to the evidence] "but meantime," Lord Cooper went on, "with those passages in your mind, I can only say to you that that is the sort of thing you have got to look for in the evidence led in support of this defence." Lord Cooper went on in these terms:

"I am going to take the responsibility of telling you, in so many words, that it will not suffice in law for the purpose of this defence of diminished responsibility merely to show that an accused person has a very short temper, or is unusually excitable, and lacking in self-control. The world would be a very convenient place for criminals and a very dangerous place for other people, if that were the law. It must be much more than that. You must find warrant in the evidence for something of the nature of what … I shall describe for short as something amounting or approaching to partial insanity and based on mental weakness or aberration."

Well, ladies and gentlemen, that is the law. I am sorry to put before you all these technical terms, but I do not think, as I said, you should dispose of this upon nice distinctions between technical terms. You should deal with the matter broadly along the lines suggested by Lord Cooper in that case.

Well, what is the evidence in this case bearing upon diminished responsibility? You will consider the same facts as I have already mentioned in relation to the special defence of insanity, and even if you do not find insanity proved you will consider whether those facts show, on a balance of probabilities, that the accused's responsibility was below normal. There is some medical evidence upon this point which you will bear in mind. Dr Ross I think was clear that the accused's responsibility was not diminished. Dr Stalker was rather more guarded. I think I should read an excerpt to you from my notes in that connexion. Dr Stalker was asked, having regard to the accused's history, the anxiety and obsession about his daughter reaching the heights shortly before the acts, and the terrific quarrels and the driving through Fife—he was asked if he did not think that the accused was not responsible. His answer was:

"I find it difficult to say he was not responsible for his action."

He was then asked:

"In any event at the time he cannot be said to be fully responsible."

His answer was:

"My thinking has been that he is responsible. I find it difficult to say even that his responsibility was diminished. I can say I might feel a little doubt about that, but on balance I say he is fully responsible. I have had some doubts."

So much for Dr Stalker, and Dr Devlin was quite clear that in his view the responsibility of the accused was very much reduced, and that he suffered from a considerable degree of loss of responsibility. Ladies and gentlemen, if you think it proved that there was some diminution of responsibility, such as is indicated by Lord Cooper in the case I have read, and if you find it proved that the accused committed the acts charged, you should find him guilty of culpable homicide. If you find that he committed the acts and that his responsibility was full and not reduced, then you should find him guilty as libelled, which means guilty of murder.

That is all I have to say to you, ladies and gentlemen, except perhaps that I should summarise the verdicts which are open to you. As I have said, you would deal with each charge separately, and it would appear that there are five verdicts possible on each charge:—a verdict of not guilty; a verdict of not proven; a finding that the accused committed the acts but was insane at the time, and you would therefore acquit him on the ground of insanity; a verdict of guilty of culpable homicide; and a verdict of guilty as libelled. These seem to be the verdicts open to you on each charge. I can accept a verdict by a majority if you are not agreed. It is of course desirable, if possible, that your verdict should be unanimous. I can accept your verdict at any time. I regret I have taken up so much time in addressing you, but it is a serious case, and I have my duty to perform. You will now please retire and consider what your verdict is to be.