LORD JUSTICE LAWTON: On the 19th April, 1972, at the Bristol Crown Court during a trial before Mr. Justice Bridge and a jury, the Appellant pleaded guilty to Count 2 of an indictment which charged him with assault occasioning actual bodily harm. This plea was tendered after a ruling by the trial Judge. That ruling is the subject of the appeal in this case as far as Quick is concerned. The trial went on against the Appellant Paddison. He was convicted of a similar offence in Count 1 of the indictment. Quick was sentenced to nine months' imprisonment, Paddison to six months.
Both now appeal against conviction by leave of the single Judge.
In its broadest aspects these appeals raise the question as to what is meant by the phrase "a defect of reason, from disease of the mind" within the meaning of the M'Naughten Rules. More particularly the question is whether a person who commits a criminal act whilst under the effects of hypoglycaemia can raise a defence of automatism, as the Appellants submitted was possible, or whether such a person must rely on a defence of insanity if he wishes to relieve himself of responsibility for his acts, as Mr. Justice Bridge ruled.
The Appellants were both employed at Farleigh Mental Hospital, Flax Bourton, Somerset. Quick was a charge nurse, Paddison a State Enrolled nurse. At the trial it was not disputed that at about 4.00 p.m. on 27th December, 1971, one Green, a paraplegic spastic patient, unable to walk, was sitting in Rosemount Ward at the hospital, watching television. Quick was on duty; Paddison had gone off duty at 2.00 p.m. but was still present in the ward. Half an hour later, Green had sustained two black eyes, a fractured nose, a split lip which required three stitches, and bruising of his arm and shoulders. There was undisputed medical evidence that these injuries could not have been self-inflicted.
The Prosecution's case was that Quick had inflicted the injuries on Green and that Paddison had been present aiding and abetting him, not by actual physical participation, but by encouragement. On arraignment Quick pleaded not guilty. At the close of the evidence, following a ruling by the Judge as to the effect in law of the evidence relied upon by Quick to support a defence of automatism, he pleaded guilty to Count 2 of the indictment. The Judge's ruling was to the effect that this evidence could only be relied upon to support a defence of insanity.
The evidence upon which the Judge ruled came partly from witnesses for the prosecution and partly from Quick's own evidence and that of a consultant physician, Dr. Cates, who was called on his behalf. The evidence from the prosecution's witnesses included that of one Willerton, a State Enrolled nurse who was on duty in Rosemount Ward at the material time. He said that at about 4.00 p.m. he had been summoned to the television lounge where he found Green on the floor with injuries to his face and struggling. Quick was sitting astride him. Quick seemed glassy eyed and made no reply when asked what he had done. A patient, one Clothier, in the course of his evidence, spoke of Quick having collapsed on the floor shortly after he had been involved in the assault on Green. In the course of his own evidence Quick said that he could not remember assaulting Green. He admitted that he had been drinking and that his drinks had included whisky and a quarter of a bottle of rum. He also said that he was, and had been since the age of seven, a diabetic and that that morning he had taken insulin as prescribed by his doctor. After taking the insulin he had had a very small breakfast and no lunch. Dr. Cates said that on twelve or more occasions Quick had been admitted to hospital either unconscious or semi-conscious due to hypoglycaemia, which is a condition brought about when there is more insulin in the bloodstream than the amount of sugar there can cope with. When this imbalance occurs, the insulin has much the same effect as an excess of alcohol in the human body. At the onset of the imbalance the higher functions of the mind are affected. As the effects of the imbalance become more marked, more and more mental functions are upset; and unless an antidote is given (and a lump of sugar is an effective one) the sufferer can relapse into coma. In the later stages of mental impairment a sufferer may become aggressive and violent without being able to control himself or without knowing at the time what he was doing or having any recollection afterwards of what he had done. The following answer by Dr. Cates sums up his evidence about hypoglycaemia and his opinion as to whether Quick could have been doing what he was proved to have been doing in the course of a suggested hypoglycaemic reaction:
"If a patient is going unconscious with a falling blood sugar, for a while he will be aggressive, for a while he will be more than aggressive, for a while he may start being physically violent and then he will be in a semi-conscious state when he could be struggling and resisting people's efforts to give him sugar. Then he may have a fit, then he may stay deeply unconscious for quite a while. It would sound from the evidence .... that this man developed an increasing effect of a falling blood sugar from some time in the afternoon till when he collapsed after the episode of attack. At least the events fit with that."
Dr. Cates said that on three or four occasions whilst in hospital under treatment for diabetes Quick had behaved violently when his blood sugar had got too low.
As is well known insulin is prescribed by doctors in order to ensure that only the requisite amount of sugar is in the patient's blood-stream; but from time to time the sugar level may get too low. Dr. Cates said that there were a number of causes for this. The doctor may have prescribed too much insulin; the patient may have eaten too little or have been over active. He accepted that on the occasion when Green was attacked, Quick's own conduct that day may well have caused a severe fall in blood sugar.
At the trial and before this Court it was accepted by the prosecution that the evidence to which we have referred was enough to justify an issue being left to the jury as to whether Quick could be held responsible for what he had done to Green.
If the jury were to accept the evidence relied on by Quick what should the verdict be? Quick's counsel submitted "not guilty"; Sir Joseph Molony on behalf of the Crown submitted that it should be "not guilty by reason of insanity". The Judge ruled in favour of the Crown. As Quick did not want to put forward a defence of insanity, after consulting with his counsel, he pleaded guilty to Count 2.
As this plea had been made as a result of the Judge's ruling it was accepted by the Prosecution before this Court that if that ruling was adjudged to be wrong it would not be a bar to an appeal by Quick against his conviction.
After Quick had pleaded guilty, the trial went on against Paddison. The case against him was that he had aided and abetted Quick to assault Green by ordering the other patients out of the ward shortly before Quick started to act violently and by staying in the ward whilst Quick was doing so without making any attempt by word or act to stop him. It was admitted, however, that before the assault ended Paddison had left the room. His explanation for ordering the patients out of the ward was that Green had started to shout, which tended to upset the other patients, so he decided to get them out of the way.
The Judge summed up the case against Paddison on the basis that as Quick had pleaded guilty to assaulting Green there was no issue to be tried as to whether there had been an assault and that the only question was whether Paddison had aided and abetted Quick. The jury decided that he had and found him guilty on Count 1 which charged him jointly with Quick. Quick, however, had pleaded guilty only to Count 2. Before the decision of the House of Lords in D.P.P. v. Merriman, (1972) 2 All England Reports, 42, the verdict against Paddison on Count 1 might have caused difficulties; but we are satisfied that as a result of that case the verdict can stand in law despite the fact that no verdict against Quick was taken on it. The submissions made on Paddison's behalf were these: first, that the evidence did not justify a verdict of aiding and abetting; secondly, that by reason of the course the trial took, Paddison was deprived of an opportunity of submitting that he could not in law be guilty of aiding and abetting someone who was either insane or acting as an automaton; and lastly, if Quick's conviction was quashed, in all the circumstances of the case, the verdict of the jury against Paddison was unsatisfactory.
The question which the Judge's ruling raises is one upon which it seems that there is no direct English or Commonwealth authority and only a few which bear indirectly upon it. We are grateful to counsel for the depth of their researches.
Our examination of such authorities as there are must start with Bratty v. A. G. for Northern Ireland, ...1963) A.C., 386, because the Judge ruled as he did in reliance on that case. Bratty had been accused of the murder of a young girl. He put forward three defences; first, that at the material time he was in a state of automatism by reason of suffering from an attack of psychomotor epilepsy; secondly, that he was guilty only of manslaughter since he was incapable of forming an intent on the ground that his mental condition was so impaired and confused and he was so deficient in reason that he was not capable of forming such intent; and thirdly, that he was insane. The trial Judge left the issue of insanity to the jury (which they rejected) but refused to leave the other two issues. The House of Lords adjudged on the evidence in that case that he had been right to rule as he did; but accepted that automatism as distinct from insanity could be a defence if there was a proper foundation in the evidence for it. In this case, if Quick's alleged condition could have been caused by hypoglycaemia and that condition, like psychomotor epilepsy, was a disease of the mind, then Mr. Justice Bridge's ruling was right. The question remains, however, whether a mental condition arising from hypoglycaemia does amount to a disease of the mind. All their Lordships based their speeches on the basis that such medical evidence as there was pointed to Bratty suffering from a "defect of reason from disease of the mind" and nothing else. Lord Denning discussed in general terms what constituted a disease of the mind. At page 412 he said:
"The major mental diseses, which the doctors call psychoses, such as schizophrenia, are clearly diseases of the mind. But in Charlson's case (1955) 1 Weekly Law Reports, 317, Barry J. seems to have assumed that other diseases such as epilepsy or cerebral tumour are not diseases of the mind, even when they are such as to manifest themselves in violence. I do not agree with this. It seems to me that 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 rather than be given an unqualified acquittal."
If this opinion is right and there are no restricting qualifications which ought to be applied to it, Quick was setting up a defence of insanity. He may have been at the material time in a condition of mental disorder manifesting itself in violence. Such manifestations had occurred before and might recur. The difficulty arises as soon as the question is asked whether he should be detained in a mental hospital? No mental hospital would admit a diabetic merely because he had a low blood sugar reaction; and common sense is affronted by the prospect of a diabetic being sent to such a hospital when in most cases the disordered mental condition can be rectified quickly by pushing a lump of sugar or a teaspoonful of glucose into the patient's mouth.
The "affront to common sense" argument, however, has its own inherent weakness, as Sir Joseph pointed out. If an accused is shown to have done a criminal act whilst suffering from a "defect of reason from disease of the mind", it matters not "whether the condition of the mind is curable or incurable, transitory or permanent" (see R. v. Kemp, (1957) 1 Queen's Bench, 399, per Devlin J. at p. 407). If the condition is transitory, the Secretary of State may have a difficult problem of disposal; but what happens to those found not guilty by reason of insanity is not a matter for the Courts.
In Kemp, where the violent act was alleged to have been done during a period of unconsciousness arising from arteriosclerosis, counsel for the accused submitted that his client had done what he had during a period of mental confusion arising from a physical, not a mental disease. Devlin, J. rejected this argument, saying (at p. 407):-
"It does not matter for the purposes of law, whether the defect of reason is due to a degeneration of the brain or to some other form of mental derangement. That may be a matter of importance medically, but it is of no importance to the law, which merely has to consider the state of mind in which the accused is, not how he got there."
Applied without qualification of any kind, Devlin, J.'s statement of the law would have some surprising consequences. Take the not uncommon case of the rugger player who gets a kick on the head early in the game and plays on to the end in a state of automatism. If, whilst he was in that state, he assaulted the referee it is difficult to envisage any court adjudging that he was not guilty by reason of insanity. Another type of case which could occur is that of the dental patient who kicks out whilst coming round from an anaesthetic. The law would he in a defective state if a patient accused of assaulting a dental nurse by kicking her whilst regaining consciousness could only excuse himself by raising the defence of insanity.
In Hill v. Baxter, (1958) 1 Queen's Bench, 277, the problem before the Divisional Court was whether the accused had put forward sufficient evidence on a charge of dangerous driving to justify the justices adjudging that he should be acquitted, there having been no dispute that at the time when his car collided with another one he was at the driving wheel. At the trial the accused had contended that he became unconscious as a result of being overcome by an unidentified illness. The Court (Goddard C.J. and Devlin and Pearson, J.J., as they then were) allowed an appeal by the prosecution against the verdict of acquittal. In the course of examining the evidence which had been put forward by the accused the Judges made some comments of a general nature. Lord Goddard at pp.282 referred to some observations of Humphreys, J. in Kay v. Butterworth, (1945) 61 T.L.R. 452 which seemed to indicate that a man who became unconscious whilst driving due to the onset of a sudden illness should not be made liable at criminal law and went on as follows:-
"I agree that there may be cases when the circumstances are such that the accused could not really be said to be driving at all. Suppose he had a stroke or an epileptic fit, both instances of what may properly be called acts of God; he might well be in the driver's seat even with his hands on the wheel, but in such a state of unconsciousness that he could not be said to be driving..... In this case, however, I am content to soy that the evidence falls far short of what would justify a court holding that this man was in some automatous state."
Lord Goddard did not equate unconsciousness due to a sudden illness, which must entail the malfunctioning of the mental processes of the sufferer, with disease of the mind, and in our judgment no one outside a court of law would. Devlin, J. in his judgment (see at p. 285) accepted that some temporary loss of consciousness arising accidentally (the italics are ours) did not call for a verdict based on insanity. It is not clear what he meant by "accidentally". The context suggests that he may have meant "unexpectedly" as can happen with some kinds of virus infections. He went on as follows:-
"But if disease is present, the same thing may happen again, and therefore, since 1800, the law has provided that persons acquitted on this ground should be subject to restraint."
If this be right anyone suffering from a tooth abscess who knows from past experience that he reacts violently to anaesthetics because of some constitutional bodily disorder which can be attributed to disease might have to go on suffer- or ing take the risk of being found insane unless he could find a dentist who would be prepared to take the risk of being kicked by a recovering patient. It seems to us that the law should not give the words "defect of reason from disease of the mind" a meaning which would be regarded with incredulity outside a court.
The last of the English authorities is Watmore v. Jenkins, (1962) 2 Queen's Bench 572. In that case justices adjudged that a diabetic motorist charged with dangerous driving and who alleged that he had done so during a hypo- glycaemic episode, should be acquitted on the ground that he was in a state of automatism. The prosecution appealed. The Divisional Court (Lord Parker, C.J., Streatfield, Winn, Widgery and Brabin, J.J.) allowed the appeal on the ground that the justices, had they directed themselves correctly as to the effect of the evidence, should not have come to the conclusion that at the material time for the purposes of this charge there had occurred such a complete destruction of voluntary control as could constitute in law automatism. The Court did not consider whether mental confusion during a hypoglycaemic episode amounted to a "defect of reason from disease of the mind". In the course of the argument in that case counsel for the accused (Mr. James Burge) is reported as having submitted, on the basis of how Lord Murray had directed the jury in H.M. Advocate v. Ritchie, (1926) S.C (J) 45, that:-
"Automatism is a defence to a charge of dangerous driving provided that a person takes reasonable steps to prevent himself from acting involuntarily in a manner dangerous to the public. It must be caused by some factor which he could not reasonably foresee and not by a self-induced incapacity."
Subject to the problem of whether the conduct said to have been done in a state of automatism was caused by a disease of the mind, we agree with this submission. In this case, had the jury been left to decide whether Quick at the material time was insane, or in a state of automatism or just drunk, they probably would not have had any difficulty in making up their minds.
The first of the Commonwealth cases in date was R. v. Cottle, (1958) N.Z.L.R. 999, which was a decision of the New Zealand Court of Appeal. In that case the accused had been charged with a number of offences, including warehouse breaking and theft. He had put forward a defence of automatism arising from epilepsy. Numerous points called for a decision and the judgments foreshadowed much which was decided in Bratty. The importance of this case is that all the members of the Court seem to have accepted that not all malfunctioning of the mind should be considered to arise from a disease of the mind. Gresson, P. at p. 1011 said:-
"Automatism, that is action without conscious volition, may or may not be due to or associated with 'disease of the mind' a term which defies precise definition and which can comprehend mental derangement in the widest sense whether due to some condition of the brain itself and so to have its origin within the brain, or whether due to the effect upon the brain of something outside the brain, e.g. arteriosclerosis. The adverse effect upon the mind of some happening, e.g. a blow, hynotism, absorption of a narcotic, or extreme intoxication, all producing an effect more or less transitory cannot fairly be regarded as amounting to or producing 'disease of the mind'."
Cleary, J. said much the same at p. 1032, (lines 32 - 35). North, J. accepted that a sleep walker who committed a criminal act could not be said to have done so whilst insane (see p.1026, lines 6 - 14). In expressing this view he adopted the opinion which Stephens, J. gave in R. v. Tolson (1P89) 23 Queen's Bench Division 168 at p. 187. As far as is known there is no decided case about the responsibility of sleepwalkers for anything done whilst in that state.
There has, however, been a decision in Victoria about the criminal responsibility of a woman alleged to have been suffering from concussion when she did the criminal acts alleged against her, namely wounding with intent to murder, wounding with intent to do grievous bodily harm and dangerous driving. See R. v. Carter, (1959) Vict.R. 105. At the conclusion of the evidence in that case the trial Judge, Sholl, J., had to rule whether the evidence about post traumatic automatism raised an issue of insanity for the jury to consider. He decided that it did not. He stated that he was not satisfied that the mental condition associated with concussion did amount to a defect of reason and that even if it did, it could not be said to have arisen from a disease of the mind. At p. 110 he said:-
"The term 'disease' :as in the M'Naughten (sic) formula is not used, I think, with reference to a temporarily inefficient working of the mind due only to such outside agencies as alcohol or drugs or applied violence producing trauma, and I say that notwithstanding the width of the words used by Dixon, J., in Porter's case, supra, when he said to the jury at pp. 188-9: ' ... his state of mind (the accused's) must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness, are quite different things from what I have "'attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing.. That does not mean .. that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing - with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.' As I say, His Honour's words are perhaps wide enough, as indeed are perhaps some words of Devlin, J., in Kemp's case, (1956) 3 All England Reports 249, to cover any temporary malfunction of disorder of the mind, but I think that I ought not to take the words 'disease of the mind' so far."
In the course of argument in this case, Sir Joseph, who no doubt had in mind what Viscount Kilmuir and Lord Denning had said in Bratty (see pages 403 and 414), conceded that Carter's case was rightly decided notwithstanding that it is not easy to exclude on any logical basis mental malfunction due to concussion from the embrace of the concept of disease of the mind as defined by Devlin, J. in Kemp, (See p. 407). If concussion is to be excluded, why should not imbecility arising from gross brain damage caused by an injury also be excluded? In one case the brain damage is probably limited to bruising, in the other to severe lesions. When asked by the Court why an accused person seeking to relieve himself from responsibility for a criminal act by leading evidence about concussion should not be deemed to be raising an issue of insanity, Sir Joseph answered: "Expediency."
In R. v. Foy, (1960) Q.L.R. 225, the Queensland Court of Criminal Appeal dealt with a case in which an accused had put forward a defence of automatism alleged to have been brought about by epilepsy. The decision turned upon problems of evidence and the onus of proof, but one of the Judges, Philip, J., traced the legal concept of "disease of the mind" back to Hale's Pleas of the Crown and came to this conclusion:-
"In my view the expression 'disease of the mind' ..... means the dementia of every description to which Hale referred. In modern parlance the expression 'disease of the mind' can certainly include any disorder or derangement of the understanding - any destruction of the will."
If my "modern parlance" the learned Judge meant "as commonly understood", we disagree.
In Cooper v. McKenna, ex parte Cooper, (1960) Q.L.R. 406, the full Court in Queensland, in a case involving a defence of automatism based on concussion, followed Carter's case and in the course of his judgment Stable, J., said that he was unable to accept the wide concept of "disease of the mind" which Philp, J., had supported in Foy's case.
In this quagmire of law seldom entered nowadays save by those in desperate need of some kind of a defence, Bratty provides the only firm ground. Is there any discernible path? We think there is - judges should follow in a common sense way their sense of fairness. This seems to have been the approach of the New Zealand Court of Appeal in Cottle and of Sholl, J., in Carter. In our judgment no help can be obtained by speculating (because that is what we would have to do) as to what the judges who answered the House of Lords' questions in 1843 meant by disease of the mind, still less as to what Sir Matthew Hale meant in the second half of the 17th Century. A quick backward look at the state of medicine in 1843 will suffice to show how unreal it would be to apply the concepts of that age to the present time. Dr. Simpson had not yet started his experiments with chloroform, the future Lord Lister was only sixteen and laudanum was used and prescribed like aspirins are to-day. Our task has been to decide what the law means now by the words "disease of the mind". In our judgment the fundamental concept is of a malfunctioning of the mind of transitory effect caused by disease. A malfunctioning of the mind/caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility. A self-induced incapacity will not excuse (see R. v. Lipman (1970) 1 Queen's Bemch 152) nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals whilst taking insulin. From time to time difficult border line cases are likely to arise. When they do, the test suggested by the New Zealand Court of Appeal in Cottle is likely to give the correct result, viz. can this mental condition be fairly regarded as amounting to or producing a defect of reason from disease of the mind?
In this case Quick's alleged mental condition, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed the working of his mind. It follows in our judgment that Quick was entitled to have his defence of automatism left to the jury and that Mr. Justice Bridge's ruling as to the effect of the medical evidence called by him was wrong. Had the defence of automatism been left to the jury, a number of questions of fact would have had to be answered. If he was in a confused mental condition, was it due to a hypoglycaemic episode or to too much alcohol? If the former, to what extent had he brought about his condition by not following his doctor's instructions about taking regular meals? Did he know that he was getting into a hypoglycaemic episode? If yes, why did he not use the antidote of eating a lump of sugar as he had been advised to do? On the evidence which was before the jury Quick might have had difficulty in answering these questions in a manner which would have relieved him of responsibility for his acts. We cannot say, however, with the requisite degree of confidence, that the jury would have convicted him. It follows that his conviction must be quashed on the ground that the verdict was unsatisfactory.
If Quick's conviction is quashed, what happens to Paddison's, having regard to the fact that he was said to have aided and abetted Quick? The quashing of Quick's conviction amounts in law to an acquittal. Can Paddison be deemed to have aided and abetted some-one who has been adjudged 'not guilty'? 'As a general proposition of law, the answer to this question is a qualified 'yes'. The facts of each case, however, have to be considered and in particular what is alleged to have been done by way of aiding and abetting. In this case the allegation against Paddison was encouragement by conduct. The case against him was that he knew what Quick was going to do and encouraged him to do it by getting the other patients out of the way. If Quick acted without conscious volition, it is most unlikely that Paddison would have known what he intended to do. The quashing of Quick's conviction in our judgment introduces an element of unreality into the verdict against Paddison. It follows that the verdict too must be quashed as being unsatisfactory.
(The Court certified the following point of law as being of general public importance, but refused leave to appeal to the House of Lords :-
Whether the words "disease of the mind" in the M'Naughten Rules exclude a malfunctioning of the mind of transitory effect caused by the application to the body of some external factor.)
