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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Brian Andrew Hughes v. Her Majesty's Advocate [2001] ScotHC 16 (11th April, 2001) URL: http://www.bailii.org/scot/cases/ScotHC/2001/16.html Cite as: 2002 JC 23, [2001] ScotHC 16, 2001 GWD 15-572 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Cameron of Lochbroom Lady Paton
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Appeal No: C228/01 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL by BRIAN ANDREW HUGHES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: D. Macleod; Ketchen & Stevens
Respondent: McCreadie, A.D.; Crown Agent
11 April 2001
[1] The appellant is Brian Andrew Hughes who has been indicted in the Sheriff Court at Glasgow on a charge of causing death by dangerous driving contrary to Section 1 of the Road Traffic Act 1988 as amended. The charge arises out of an incident on 2 January 1999 in which the appellant himself was badly injured. As a result he suffers from amnesia in respect of the actual episode and in respect of periods before and after the episode.
[2] At a continued first diet hearing in the Sheriff Court Mr. Macleod, who appeared for the appellant, sought to advance a plea in bar of trial based on the appellant's amnesia. The Sheriff repelled the plea and the appellant has appealed to this court under Section 62(1)(a) of the Criminal Procedure (Scotland) Act 1995, which makes provision for an appeal against a refusal to make a finding under Section 54(1) that the appellant is insane. A finding of insanity in terms of Section 54(1) can be made only on the written or oral evidence of two medical practitioners.
[3] The Sheriff had before him two reports from medical practitioners, one from Dr. Suddle and one from Dr. Ramsay, both of the Douglas Inch Clinic. It is unnecessary to consider their terms in detail since, for present purposes, there are only two matters of significance. First, both say that the appellant is sane and fit to plead. Secondly, as we have already indicated, they both show that the appellant is suffering from amnesia which makes it impossible for him to recall the events surrounding the accident. Before this court, Mr. Macleod argued on behalf of the appellant that, since the appellant was unable to remember what had happened, he would be unable to give his agents and counsel proper instructions as to his defence to the charge. He submitted that, in terms of the charge to the jury of Lord Wark in Wilson v. H. M. Advocate 1942 J.C. 75, which had been approved by this court in McLachlan v. H. M. Advocate 1997 J.C. 222, a person affected in this manner by amnesia was "insane" for the purposes of Section 54 of the 1995 Act.
[4] In Wilson the accused was deaf and dumb and not of normal intellect. Lord Wark pointed out to the jury that the accused's reason was not alienated and that he was not insane in that sense. But, said Lord Wark (1942 J.C. at p. 79),
"he may be insane for the purposes of the section of the Lunacy Act to which counsel referred, although his reason is not alienated, if his condition be such that he is unable either from mental defect or physical defect, or a combination of these, to tell his counsel what his defence is and instruct him so that he can appear and defend him; or if again, his condition of mind and body is such that he does not understand the proceedings which are going on when he is brought into Court upon his trial, and cannot intelligibly follow what it is all about."
In Stewart v. H. M. Advocate 1997 J.C. 183, which involved an accused who was suffering from a mental handicap, the court held that the term "insane" in Section 54 of the 1995 Act had also to be interpreted in this extended fashion. In McLachlan, where the question again related to mental handicap, the court followed the decision in Stewart. And we, of course, accept that construction in this case. Mr. Macleod submitted that, applying the approach of Lord Wark - which was given prominence in paragraph 26-05 of Renton and Brown's Criminal Procedure (sixth edition) - we should hold that, since the appellant's amnesia meant that he could not give his representatives instructions about the circumstances of the offence, he was "insane" for the purposes of Section 54(1).
[5] We reject that submission which, as Mr. Macleod acknowledged, flies in the face of the decision in Russell v. H. M. Advocate 1946 J.C. 37. In that case the appellant was charged with a series of frauds extending over a period of years. She claimed that she suffered from hysterical amnesia and was, on that account, unable to plead to the libel or to give instructions for her defence. The court held that, even if the amnesia were established, it would not afford any plea in bar of trial. Giving the opinion of the court, Lord Justice Clerk Cooper commented (1946 J.C. at pp. 46 - 47):
"It is, I think, plain from the unbroken practice followed from the earliest dates to which our records extend that, in dealing with pleas in bar of trial founded on some abnormal condition in the accused, the Court has balanced against each other two major considerations, viz., (1) fairness to the panel, who should not be tried if and so long as he is not a fit object for trial, and (2) the public interest which requires that persons brought before a criminal Court by a public prosecutor should not be permitted to purchase complete immunity from investigation into the charge by the simple expedient of proving the existence at the diet of trial of some mental or physical incapacity or handicap."
Lord Cooper then went on to deal with a passage from the charge of Lord Justice General Dunedin in H. M. Advocate v. Brown (1907) 5 Adam 312 at p. 344, where he had said that no person could be tried who could not only intelligently but "without obliteration of memory as to what has happened in his life, give a true history of the circumstances of his life at the time the supposed crime was committed" or who cannot "tell his counsel, with the certainty of not being deceived, what he was really doing at the time" (5 Adam at p. 346). Lord Cooper said of these comments (1946 J.C. at p. 47):
"I do not consider that they were intended to be understood, or are capable of being understood, literally as applying to the case of a sane prisoner - in this case one whom all the medical witnesses adduced have pronounced to be completely sane and normal - for so to read them would come near to paralysing the administration of criminal justice. On any such reading the plea in bar would require to be sustained in most cases in which the accused had been under the influence of drink, or had sustained a head injury, at the time of the crime, or even if he was naturally a person of unreliable memory. I am confident that Lord Dunedin would have been the first to repudiate the idea that the law of Scotland is concerned only to investigate and punish crimes of the perpetration of which the criminal has a perfect recollection on which his counsel can 'with certainty' rely."
We have no hesitation in endorsing what Lord Cooper says - which is, with respect, merely consummate common sense. He went on to hold that the trial judge had been right not to sustain the plea in bar of trial and that the appeal fell to be refused.
[6] We note that the decision in Russell was applied by the Court of Criminal Appeal in the dramatic circumstances of R. v. Podola [1960] 1 Q.B. 325. Despite this, Mr. Macleod submitted that Russell was not widely known among practitioners in our courts and that its relationship with the earlier decision in Wilson could, with advantage, be clarified. We need simply say that, so far as amnesia is concerned, the law was clearly established by the court in Russell. In coming to its decision in that case, the court considered the decision in Wilson which dealt with a wholly different situation. Similarly, the circumstances in the more recent cases of Stewart or McLachlan are easily distinguished and nothing said by the court in them trenches in any way on the decision in Russell. In a case like the present, the appellant is well able to understand the proceedings against him and to give rational and comprehensible instructions to his representatives, even though part of his instructions will doubtless be to the effect that he cannot recall the events surrounding the alleged offence. His inability to remember what happened does not prevent the defence from testing the Crown case or, if so advised, from leading any other witnesses who may exist to speak to the events in question. Where - as happens quite frequently - an accused cannot remember the events in question, he can none the less have a fair trial, even though it may, necessarily, be conducted somewhat differently from a trial in which the accused can remember all the relevant events. No question of the appellant's trial being barred can therefore arise.
[7] For these reasons the learned Sheriff was correct to repel the appellant's plea in bar of trial and the appeal must be refused.
