England and Wales Court of Appeal (Criminal Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bailey, R. v [1983] EWCA Crim 2 (11 March 1983)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1983/2.html
Cite as: [1983] Crim LR 353, [1983] 1 WLR 760, (1983) 1 WLR 760, [1983] EWCA Crim 2

[New search] [Buy ICLR report: [1983] 1 WLR 760] [Help]

JISCBAILII_CASE_CRIME

		BAILII Citation Number: [1983] EWCA Crim 2
		Case No.: 5735/A1/B2

IN THE COURT OF APPEAL
CRIMNAL DIVISION

Royal Courts of Justice

11th March 1983

B e f o r e :

LORD JUSTICE GRIFFITHS
MR. JUSTICE PETER PAIN
and
MR. JUSTICE STUART-SMITH
____________________

	REGI NA
	-v-
	JQHN GRAHAM BAILEY

____________________

(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., 36-38
Whitefriars Street, London EC4Y 8BH. Telephone number: 01 583 7635.
Shorthand Writers to the Court. )

____________________

MR. H. LAING appeared on behalf of the Appellant.
MR. E. P. BAISDEN appeared on behalf of the Crown.
____________________

HTML VERSION OF JUDGMENT
____________________

(As approved by the Judge)

LORD JUSTICE GRIFFITHS: The judgment that I am about to read is the judgment of the court and it was written by Mr. Justice Stuart-Smith. At the Crown Court at Bolton on 14th October, 1982, the Appellant was convicted of wounding with intent to cause grievous bodily harm, contrary to Section 18 of the Offences Against the Person Act 1861. The jury were not required to give a verdict on an alternative count of unlawful wounding contrary to Section 20 of that Act. He now appeals against this conviction.

The Appellant is a diabetic and has been so for some 30 years. He requires to take insulin to control his condition. His defence at the trial was that he was acting in a state of automatism, caused by hypoglaecemia.

In early January, 1982, the woman with whom the Appellant had been living for the previous two years left him and formed an association with the victim, Mr. Harrison. At about 7 p. m. on the 20th January, 1982, the Appellant, seeming upset, visited Mr. Harrison at his home. They had a cup of tea and discussed the matter. After 10 or 15 minutes the Appellant said that he felt unwell and asked Mr. Harrison to make him some sugar and water, which the Appellant drank. About 10 minutes later the Appellant started to leave. He then said that he had lost his glove and that it might be down the side of the chair on which he had been sitting. Mr. Harrison bent down to look and the Appellant struck him on the back of the head with an iron bar, which was a case opener about 18" long. The Appellant remained there holding the iron bar. Mr. Harrison ran from the house. His wound required 10 stitches.

The Crown's case was that although it was theoretically possible, from a medical point of view, for there to have been a temporary loss of awareness due to hypoglaecemia, as the Appellant claimed, this was not what had happened. On the contrary, it was contended that the Appellant, upset and jealous about Mr. Harrison's relationship with his girlfriend, had armed himself with the iron bar and gone to Harrison's house with the intention of injuring him. They relied on the evidence of the police to show that this was the case.

At 10. 10 p. m. the Appellant was seen by police in a public house. They told him they were making enquiries about the attack on Mr. Harrison. He replied: "Yes, it was me. I hit him with a bar. " He was then cautioned and he said that he was expecting them. While in the police vehicle, the Appellant asked after Mr. Harrison and said: "I'm sorry now, but I couldn't stop myself. I had to hit him. " He then added: "I had to teach him a lesson. " When he was asked what he meant, he said: "He's been going out with my girlfriend. I went round to sort it out. " He was then asked what the bar was doing in his pocket and he replied: "It was just there and when I went round to see him I felt it in my pocket. I thought I'd use it to teach him a lesson. " He then described how he had thrown it away cut of his van.

When he was at the police station he was again cautioned and was asked if he knew why he was there. He said: "Yes, it was for hitting Michael with that bar. " He was asked to tell about it and he replied: "What is there to tell? My life's been turned upside down. I wanted to marry Beatrice and still do. Michael Harrison's just in the way. " Later, in the course of a written statement, he said: "About ten to seven I went to see Kike Harrison. I went on the spur of the moment. I knocked on the door and he asked me in. We had a conversation and he admitted that something had been going on between him and Beatrice, more than a platonic relationship. I felt sick inside at this. The conversation meant little to me after that. I told him I was going. I told him I had lost a glove and he looked for it inside an armchair where I had been sitting. As he was getting up from looking on the chair he was half leaning forward. I took out a metal case opener that I had in my pocket which I had taken with me. I held it in my right hand and hit him on the back of the head. I don't know why I did it, but I knew I had to hit him. I then held the bar in my hand against my side and said: 'Come and hit me. '"

When he gave evidence, the Appellant, who was a man of good character, maintained he had no intention of harming Mr. Harrison and he had acted in a state of automatism. He said that he had to take two doses of insulin a day and was under his general practioner and a special clinic. He had arrived home at 5. 30 p. m. and had his insulin and a cup of tea. At 7 p. m. he decided to go and see Harrison and his account of what took place accorded with that of Harrison up to the point where he asked Harrison to look for his glove. The next thing he could remember was standing with the bar in his hand. He saw that Harrison was injured and he said: "What the hell am I doing?" He then described how he went home and later to the public house where he was arrested.

The Appellant's general practitioner gave evidence. He confirmed that the Appellant was a diabetic and received insulin treatment, after which he had to take food within a short period. If he failed to do so, it could produce symptons of weakness, palpitations, tremor and sweating. He might develop more aggressive tendencies than normal and this could be accompanied by loss of memory. After describing what the Appellant had said he had had to eat, he said that the Appellant had not had sufficient to counteract and balance the dose of insulin. So far as he was aware, the Appellant in 30 years had never developed a condition of coma due to hypoglaecemia. He said that the effect of taking sugar and water in Harrison's house would be to help bring back the sugar level within five or ten minutes. When he was cross-examined he said he thought it unlikely that there could have been the sudden switch-off effect alleged by the Appellant and he regarded the likelihood of such a thing happening as being remote if sugar and v. water had been taken five minutes before it happened.

It was therefore the Appellant's case that the attack had taken place during a period of loss of consciousness occurring due to hypoglaecemia caused by his failure to take sufficient food following his last dose of insulin. Accordingly, it was submitted that he had neither the specific intent to cause grievous bodily ham for the purpose of Section 18, nor the appropriate mens rea or basic intent for the purpose of the Section 20 offence.

But the learned Recorder, in effect, told the jury that this defence was not available to the Appellant. He said: "One thing is equally clear, Members of the Jury, that if that state of malfunctioning was induced by any agency or self-induced incapacity, then the defence of automatism does not apply. " It is clear from the rest of the summing-up that "self-induced" in this context meant or included the Appellant's failure to take sufficient food after his dose of insulin. The Recorder appears to have derived this proposition, which he applied to both counts of the indictment, from R. v. Quick (1973) 57 Cr. App. R. 722. In that case the Appellant, a nurse in a mental hospital, had attacked a patient. Quick was a diabetic and his defence was that he was in a state of automatism at the time due to hypoglaecemia. The trial judge had ruled that, if established, this amounted to a disease of the mind and could only be relied upon in support of a defence of insanity. Following this ruling, Quick pleaded guilty to assault occasioning actual bodily harm.

The Court of Appeal held that this ruling was wrong and that the malfunctioning caused by the hypoglaecemia was not a disease of the mind and that the Appellant was entitled to have his defence considered by the jury. At page 755 Lord Justice Lawton said:

"Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will always relieve an accused from criminal responsibility. A self-induced incapacity will not excuse (see Lipman (1969) 53 Cr. App. R. 600; (1970) 1 Q. B. 1952) 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 (supra) 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 mind?"

But in that case, the offence, assault occasioning actual bodily harm, was an offence of basic intent. No specific intent was required. It is now quite clear that even if the incapacity of mind is self-induced by the voluntary taking of drugs or alcohol, the specific intent to kill or cause grievous bodily harm may be negatived. See DPP v. Majewski (1976) 62 Cr. App. E. 262. This being so, as it is conceded on behalf of the Crown, the direction to which we have referred cannot be correct so far as the offence under Section 18 is concerned.

But it is also submitted that the direction is wrong or at least in too broad and general terms, so far as the Section 20 offence is concerned. If the passage quoted above from R. v. Quick correctly represents the law, then the direction given by the Recorder was correct so far as the second count was concerned, even though the Appellant may have had no appreciation of the consequences of his failure to take food and even though such failure may not have been due to deliberate abstention, but because of his generally distressed condition. In our judgment, the passage from Lord Justice Lawton's judgment was obiter and we are free to re-examine it.

Automatism resulting from intoxication as a result of a voluntary ingestion of alcohol or dangerous drugs does not negative the mens rea, necessary for crimes of basic intent, because the conduct of the accused is reckless and recklessness is enough to constitute the necessary mens rea in assault cases where no specific intent forms part of the charge. See DPP v. Majewski (supra) at page 270 in the speech of Lord Elwyn Jones, L. C, and at page 287 in the speech of Lord Edmund Davies where he said:

"The law therefore establishes a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea in ordinary crimes. Where this presumption applies, it does not make 'drunkenness itself a crime, but the drunkenness is itself an integral part of the crime, as forming, together with the other unlawful conduct charged against the defendant, a complex act of criminal recklessness. "

The same considerations apply where the state of automatism is induced by the voluntary taking of dangerous drugs. See Lipman (1969) 55 Cr. App. R. 600, where a conviction for manslaughter was upheld, the Appellant having taken L. S. D. and killed his mistress in the course of an hallucinatory trip. It was submitted on behalf of the Crown that a similar rule should be applied as a matter of public policy to all cases of self-induced automatism. But it seems to us that there may be material distinctions between a man who consumes alcohol or takes dangerous drugs and one who fails to take sufficient food after insulin to avert hypoglaecemia.

It is common knowledge that those who take alcohol to excess or certain sorts of drugs may become aggressive or do dangerous or unpredictable things; they may be able to foresee the risks of causing harm to others, but nevertheless persist in their conduct. But the sane cannot be said without more of a man who fails to take food after an insulin injection. If he does appreciate the risk that such a failure may lead to aggressive, unpredictable and uncontrollable conduct and he nevertheless deliberately runs the risk or otherwise disregards it, this will amount to recklessness. But we certainly do not think that it is common knowledge, even among diabetics, that such is a consequence of a failure to take food; and there is no evidence that it was known to this Appellant. Doubtless he knew that if he failed to take his insulin or proper food after it, he might lose consciousness, but as such he would only be a danger to himself unless he put himself in charge of some machine such as a motor car, which required his continued conscious control.

In our judgment, self-induced automatism, other than that due to intoxication from alcohol or drugs, may provide a defence to crimes of basic intent. The question in each case will be whether the prosecution have proved the necessary element of recklessness. In cases of assault, if the accused knows that his actions or inaction are likely to make him aggressive, unpredictable or uncontrolled with the result that he may cause some injury to others and he persists in the action or takes no remedial action when he knows it is required, it will be open to the jury to find that he was reckless.

Turning again to Quick's case and the passage we have quoted; we think that notwithstanding the unqualified terms in which the proposition is stated, it is possible that the court may not have intended to lay down such an absolute rule. In the following paragraph Lord Justice Lawton considers a number of questions, which are not necessarily exhaustive, which the jury might have wanted to consider if the issue had been left to them. One such question was whether the accused knew that he was getting into a hypoglaecemic episode and if so, why he did not use the antidote of taking sugar which he had been advised to do. These questions suggest that even if the hypoglaecemia was induced by some action or inaction by the accused his defence will not necessarily fail.

In the present case the Recorder never invited the Jury to consider what the Appellant's knowledge or appreciation was or what would happen if he failed to take food after his insulin or whether he realised that he might become aggressive. Nor were they asked to consider why the Appellant had omitted to take food in time. They were given no direction on the elements of recklessness. Accordingly, in our judgment, there was also a misdirection in relation to the second count in the indictment of unlawful wounding.

But we have to consider whether, notwithstanding these misdirections, there has been any miscarriage of justice and whether the jury properly directed could have failed to come to the same conclusion. As Lord Justice Lawton said in Quick's case at page 734, referring to the defence of automatism, it is a 'quagmire of law, seldom entered nowadays save by those in desperate need of some kind of defence". This case is no exception. We think it very doubtful whether the Appellant laid a sufficient basis for the defence to be considered by the jury at all. But even if he did, we are in no doubt that the jury properly directed must have rejected it. Although an episode of sudden transient loss of consciousness or awareness was theoretically possible, it was quite inconsistent with the graphic description that the Appellant gave to the police both orally and in his written statement. There was abundant evidence that he had armed himself with the iron bar and gone to Harrison's house for the purpose of attacking him, because he wanted to teach him a lesson and because he was in the way.

Moreover, the doctor's evidence to which we have referred showed it was extremely unlikely that such an episode could follow some five minutes after taking sugar and water. For these reasons we are satisfied that no miscarriage of justice occurred and the appeal will he dismissed.