England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice,
		27th January 1989.

JUDGMENT (As approved by Judge)

THE LORD CHIEF JUSTICE: On 15th January last year, on the second day of a trial in the Crown Court at Lewes before His Honour Judge Birks and a jury, following a ruling on the defence of non-insane automatism, this appellant, Andrew Michael Hennessy, now 27 years of age, pleaded guilty and was sentenced as follows: first of all on count 1, for taking a conveyance without authority, nine months' imprisonment suspended for two years; count 2, driving while disqualified, six months' imprisonment to run concurrently, also suspended for two years. He was disqualified from holding or obtaining a driving licence for two years and his driving licence was endorsed. Also a community service order made in March 1988 was ordered to continue.

He now appeals against conviction by a certificate of the learned trial Judge. The Judge's certificate, to read it somewhat out of chronological order, was as follows: "The defendant, who is diabetic, claimed that he did not know what he was doing when the offence was committed because he was suffering from hyperglycaemia, having failed to take insulin for some days. He sought to raise the defence of automatism. I rejected this on the ground that his alleged mental condition, if it existed, was caused by disease, namely diabetes."

The facts which gave rise to the charges, in so far as material, were these. On Thursday 25th May 1987, two police constables, Barnes and Grace, were on duty in St. Leonards on the Sussex coast, amongst other things looking for a Ford Granada car which had been stolen. They found the car. It was unattended. They kept it under watch. As they watched they saw the appellant get into the car, switch on the headlights and ignition, start the car and drive off. The appellant at the wheel of the car correctly stopped the car at a set of traffic lights which were showing red against him.

Constable Grace then went over to the car as it was stationary, removed the ignition keys from the ignition lock, but not before the appellant had tried to drive the motor car away and escape from the attention of the policeman. The appellant was put in the police car. On the way to the police station an informal conversation about motor vehicles took place between the appellant and the police officers, in particular about the respective merits of the new Rover motor car and the Ford Sierra. Indeed the appellant appeared to Police Constable Barnes not only to be fully in possession of his faculties but to be quite cheerful and intelligent. Indeed he went so far as to say to the police officer that if he had only got the car, which he was in the process of removing, on to the open road, he would have given the policemen a real run for their money.

However after having been at the police station for a time, he was at a later stage escorted by Police Constable Barnes to hospital. He seemed to be normal when he left the cell block at the police station, but when he arrived at the hospital he appeared to be dazed and confused. He, the appellant, complained to the sister in the casualty ward that he, the appellant, had failed to take his insulin and indeed had had no insulin since the previous Monday when he should have had regular self-injected doses. He was given insulin, with which he injected himself, and the hospital discharged him and he was taken back to the police station.

The appellant gave evidence to the effect that he had been a diabetic for about ten years. He needed, in order to stabilise his metabolism, two insulin injections on a daily basis, morning and afternoon. The amount required would depend on factors such as stress and eating habits. He was on a strict carbohydrate diet. At the time of the offence he said he had been having marital and employment problems. His wife had submitted a divorce petition some time shortly before, and he was very upset. He had not been eating and he had not been taking his insulin. He remembered very few details of the day. He could recall being handcuffed and taken to the chargeroom at the police station. He remembered being given insulin at the hospital and injecting himself and he remembers feeling better when he got back to the police station afterwards. He said he did not recall taking the car.

When cross-examined he agreed that he had understood proceedings at the police station, and what had gone on there. Indeed he had given the name and address of his solicitor. That was a considerable time before he had had his insulin at the hospital.

His General Practitioner, Dr. Higginson, was called to give evidence. He spoke as to the appellant's medical condition. He described in broad outlines the effect of diabetes: it is a deficiency in the system of the production of hormones, which should balance the sugar metabolism. The lacking hormone is of course insulin. In the absence of the hormone the blood sugar rises and that results in hyperglycaemia. If the patient does not take his insulin and does not stick to the proper diet, then hyperglycaemia will supervene. If unchecked, the liver will become affected and the increasingly high level of sugar makes the patient drowsy and he will ultimately go into a coma.

If on the other hand the balance tips the other way, if too much insulin is taken, then the blood sugar will fall and hypoglycaemia, that is to say too little sugar in the blood, will supervene.

According to the hospital notes, on the evening in question the appellant's blood sugar had been high at 22 plus millimolecules per litre, the normal being 8 or 9. According to Dr. Higginson one would expect to see some physical manifestation of hyperglycaemia at that level. So the doctor was saying in short that eventually hyperglycaemia can result in drowsiness, loss of consciousness and coma, greater or less unresponsiveness to stimuli according to the degree of hyperglycaemia present. He added -- I will read a passage from his evidence in a moment -- that anxiety or depression can increase the blood sugar level, a person's ability and awareness of what is going on could be impaired if there were "associated symptoms and he had other conditions and worries at the same time".

If one reads a passage from Dr. Higginson's evidence, it says this:

"Q. What if a person was in a state of anxiety or depression at the same time as having high blood sugar? A. The blood sugar tends to be increased in the ordinary diabetic by any trauma or psychological stress, so the answer to your question is yes, it would go up.

"Q. What about the person's ability and awareness of what was going on, would that be impaired or could it be impaired? A. I think if there was associated symptoms and he had other conditions and worries at the same time, yes it could be impaired. " Then in answer to a question by the learned Judge the doctor said this: "There is a great individual variability in this situation, and it is difficult to be dogmatic, but I think that would be a reasonable explanation of someone who is under a lot of stress and had a very high level of blood sugar....He might not be clear about what he was doing; he might be a bit befuddled. It is well known that the reverse condition, hypoglycaemia produces these symptoms very markedly. From time to time people are arrested for being drunk."

The defence to these charges accordingly was that the appellant had failed to take his proper twice a day dose of insulin for two or three days and at the time the events in question took place he was in a state of automatism and did not know what he was doing. Therefore it is submitted that the guilty mind, which is necessary to be proved by the prosecution, was not proved, and accordingly that he was entitled to be acquitted.

The Judge took the view, rightly in our view, that the appellant, having put his state of mind in issue, the preliminary question which he had to decide was whether this was truly a case of automatism or whether it was a case of legal "insanity" within the M'Naghten Rules. He concluded that it was the latter, and he so ruled, whereupon the appellant changed his plea to guilty and was sentenced to the terms of imprisonment suspended which we have already mentioned. The Judge then certified the case fit for appeal in the terms which I have already described.

The M'Naghten rules in the earlier part of the last century have in many ways lost their importance; they certainly have lost the importance they once had, but they are still relevant in so far as they may affect the defence of automatism. Although the rules deal with what they describe as insanity, it is insanity in the legal sense and not in the medical or psychological sense. The rules were, as is well known, embodied in replies given by the Judges of that day to certain abstract questions which were placed before them. The historical reasons for the questions being posed it is not necessary for us to describe, interesting though they are.

The answers to the questions were these: first of all that "every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to the satisfaction of the jury". The second rule is this: "To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong".

The importance of the rules in the present context, namely the context of automatism, is this. If the defendant did not know the nature and quality of his act because of something which did not amount to defect of reason from disease of the mind then he will probably be entitled to be acquitted on the basis that the necessary criminal intent which the prosecution has to prove is not proved. But if, on the other hand, his failure to realise the nature and quality of his act was due to a defect of reason from disease of the mind, then in the eyes of the law he is suffering from insanity, albeit M'Naghten insanity.

It should perhaps be added, in order to complete the picture, though it is not relevant to the present situation, that where a defendant's failure to appreciate what he was doing was wrong, (that is the second part of paragraph 2 of the M'Naghten Rules), where that failure is due to some reason other than a defect of reason from disease of the mind he will generally have no valid defence at all.

If one wants any confirmation, it is to be found, if we may respectfully say so, in Smith and Hogan, Criminal Law, Sixth Edition, and page 186, where these matters are very helpfully and clearly set out. If we may just cite the passage from that page, it runs as follows: "When a defendant puts his state of mind in issue, the question whether he has raised the defence of insanity is one of law for the judge. Whether D, or indeed his medical witnesses, would call the condition on which he relies 'insanity', is immaterial. The expert witnesses may testify as to the factual nature of the condition but it is for the judge to say whether that is evidence of 'a defect of reason, from disease of the mind', because, as will appear, these are legal, not medical, concepts."

Then by section 2 of the Trial of Lunatics Act 1883, as amended, it is provided as follows: "(1) Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible according to law, for his action at the time when the act was done or omission made, then, if it appers to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict that the accused is not guilty by reason of insanity."

In the present case therefore what had to be decided was whether the defendant's condition was properly described as a disease of the mind. That does not mean any disease of the brain. It means a disease which affects the proper functioning of the mind. There have been a series of authorities on that particular subject. One such instance is the case of Kemp (1957) 1 Q.B. 399 and the judgment of Devlin J. therein.

The question in many cases, and this is one such case, is whether the function of the mind was disturbed on the one hand by disease or on the other hand by some external factor. The matter was discussed, as Mr. Owen has helpfully pointed out to us, by the House of Lords in the case of Sullivan (1984) A.C. 156, and the passage which I read is at page 172 in the speech of Lord Diplock, which reads as follows: I agree with what was said by Devlin J. in Kemp that 'mind' in the M'Naghten Rules is used in the ordinary sense of the mental faculties of reason, memory and understanding. If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the aetiology of the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act. The purpose of the legislation relating to the defence of insanity ever since its origin in 1800, has been to protect society against recurrence of the dangerous conduct. The duration of a temporary suspension of the mental faculties of reason, memory and understanding, particularly if, as in Mr. Sullivan's case, it is recurrent, cannot on any rational ground be relevant to the application by the courts of the M'Naghten Rules, though it may be relevant to the course adopted by the Secretary of State, to whom the responsibility for how the defendant is to be dealt with passes after the return of the special verdict of 'not guilty by reason of insanity'. "

The point was neatly raised in the case of Quick (1973) QB 910, also referred to us by Mr. Owen, in which Lawton, L.J. reviews the authorities. It might perhaps help if I read a short passage from the headnote: "The defendants,Q and P, nurses at a mental hospital, were jointly and severally charged with assaulting a patient occasioning actual bodily harm. Both pleaded not guilty. Q, a diabetic, relied on the defence of automatism. He gave evidence that he had taken insulin as prescribed on the morning of the assault, had drunk a quantity of spirits and eaten little food thereafter and had no recollection of the assault. He called medical evidence to the effect that his condition at the material time was consistent with that of hypoglycaemia. The judge ruled that that evidence could only support a defence of insanity, not automatism. Q. then pleaded guilty and P was convicted of aiding and abetting Q by encouragement. The defendants appealed against that conviction."

I turn to the passage in the judgment at page 922E, where Lawton, L.J. says:

"A malfunctioning of the mind of transitory effect 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.....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 Bridge J.'s ruling as to the effect of the medical evidence called by him was wrong."

Thus in Qyuick case the fact that his condition was, or may have been due to the injections of insulin, meant that the malfunction was due to an external factor and not to the disease. The drug it was that caused the hypoglycaemia, the low blood sugar. As suggested in another passage of the judgment of Lawton, L.J., hyperglycaemia, high blood sugar, caused by an inherent defect, and not corrected by insulin is a disease, and if, as the defendant was asserting here, it does cause a malfunction of the mind, then the case may fall within McNaghten Rules.

The burden of Mr. Owen's argument to us is this, it is that the appellant's depression and marital troubles were a sufficiently potent external factor in his condition to override, so to speak, the effect of the diabetic shortage of insulin upon him. He refers us not only to the passage which I have already cited in the case of Quick, but also to a further passage in the case of Hill v. Baxter (1958) 1 Q. B. 277, and the passage to which he makes reference is at page 285, which is part of the judgment of Devlin J., sitting with Lord Goddard and Pearson J., in the Court of Criminal Appeal.

It reads as follows: "I have drawn attention to the fact that the accused did not set up a defence of insanity. For the purposes of the criminal law there are two categories of mental irresponsibility, one where the disorder is due to disease and the other where it is not. The distinction is not an arbitrary one. If disease is not the cause, if there is some temporary loss of consciousness arising accidentally, it is reasonable to hope that it will not be repeated and that it is safe to let an acquitted man go entirely free. 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."

That is the submission made by Mr. Owen as a basis for saying the Judge's decision was wrong and that this was a matter which should have decided by the jury.

In our judgment, stress, anxiety and depression can no doubt be the result of the operation of external factors, but they are not, it seems to us, in themselves separately or together external factors of the kind capable in law of causing or contributing to a state of automatism. They constitute a state of mind which is prone to recur. They lack the feature of novelty or accident, which is the basis of the distinction drawn by Lord Diplock in the case of Sullivan. It is contrary to the observations of Devlin J., to which we have just referred in the case of Hill v. Baxter. It does not, in our judgment, come within the scope of the exception "some external physical factor such as a blow on the head or the administration of an anaesthetic".

For those reasons we reject the arguments, able though they were, of Mr. Owen. It is not in those circumstances necessary for us to consider the further arguments which he addressed to us based upon the decision in the case of Bailey (1983) 1 WLR 760. In our judgment the reasoning and judgment of the learned Circuit Judge were correct.

Accordingly this appeal must be dismissed.