Scottish High Court of Justiciary Decisons

Lord Justice-Clerk (Alness).— … In many murder cases you have a simple and indeed a single issue, namely, Did A kill B? This, ladies and gentlemen of the jury, is not a case which can be solved along such simple lines as these. There is not one question to answer in this case; there are three. The first question you have to answer is—Is it proved to your satisfaction that the accused killed Jemima Grierson? That is the first question. If you are satisfied upon the evidence that he did, you will then proceed to consider the second question, which is—Has the prisoner proved to your satisfaction that he was insane at the time? But a third question remains behind these two, and it is this—Even if the prisoner has not proved that he was insane at the time, has he proved that his mental condition was such as to reduce his crime from the crime of murder—which has only one penalty, well known to you, attached to it—to the crime of culpable homicide, which varies in degree? These are the three questions which you will have to consider most carefully.

[After dealing with the first and second questions, his Lordship proceeded]—If, on the other hand, you are unable to hold it proved that he was then insane, you will pass on to the third and last question which you have to consider, and that is whether the crime of which the prisoner is guilty—if he be guilty of a crime—is reduced from that of murder to that of culpable homicide in respect of the state of his mind. You will have to say whether the state of the mind of the prisoner at the time, while not amounting to insanity, was such as to render appropriate, and indeed proper and necessary, a verdict of culpable homicide rather than of murder.

Now, that there may be such a state of mind of a person, short of actual insanity, as may reduce the quality of his act from murder to culpable homicide is, so far as I can judge from the cases cited to me, an established doctrine in the law of Scotland. It is a comparatively recent doctrine, and, as has at least twice been said from the bench to a jury, it must be applied with care. Formerly there were only two classes of prisoner—those who were completely responsible and those who were completely irresponsible. Our law has now come to recognise in murder cases a third class, the class which I have described, namely those who, while they may not merit the description of being insane, are nevertheless in such a condition as to reduce the quality of their act from murder to culpable homicide. Now, ladies and gentlemen of the jury, let us distinguish here. To say that a man, who takes drink and while under its influence commits a crime, is to be excused from the penalty of the crime merely because he made himself drunk would of course be a most perilous doctrine. And it is not the law of Scotland. The man himself is responsible for getting drunk, and the mere fact that he has taken drink, and while under its influence committed a crime, is not sufficient to excuse him from the consequences of his crime. On the other hand, it appears, as I say, equally well established, although it has been variously phrased, that the state of mind of the prisoner may be such, short of insanity, asto reduce the quality of his act from murder to culpable homicide. 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 the cases that there is implied—as Lord Stormonth-Darling in terms said in the case to which the Lord Advocate referred—that there must be some form of mental disease. Well, ladies and gentlemen of the jury, that is a very difficult region of law. I have told you the kind of thing that is necessary. Aberration or weakness of mind; mental unsoundness; a state of mind bordering on insanity although not reaching it; a mind affected so that the responsibility is diminished from full responsibility to partial responsibility. That is the sort of thing that must be proved in order to establish that the crime which would otherwise be murder is only culpable homicide; and you will now have to apply your minds to the question whether, upon the facts as proved in this case, there is any approach to that, anything which satisfies these criteria, on the part of the prisoner. In one view of the evidence—the view suggested by the Lord Advocate [viz., that it was not proved that the panel was drunk]—you may be excused from entering very far into the difficult province which I have just indicated, because when you come to the facts you must inquire and find an answer to the question whether or not the accused was, at the time when this incident occurred, under the influence of drink, or drunk. Here again the burden of proof is upon the accused. Now, what is the evidence in that connexion? [His Lordship then considered the evidence with regard to the panel's condition on the night in question.] You will consider whether from first to last—assuming the law with regard to culpable homicide to be as I have stated—you will consider whether the prisoner has proved to your satisfaction that on that night, and in particular at the hour when this incident occurred, his mental state was unsound, that he was in a state of mental aberration, and not fully responsible for his actions. You will consider whether the evidence does not point the other way. That is for you, not for me. But I have read you the evidence, and you will give such weight to it as you think proper. …

Now, that is the case, ladies and gentlemen of the jury. On the first question you have to say whether you are satisfied that the prisoner's hand struck the blows. If not, that is an end of the case. If you are satisfied it was so, you will then proceed to consider the second question, namely, whether it is proved by the prisoner that he was insane. If you think that is proved, you will acquit him on the ground of insanity from the charge brought against him. If, on the other hand, you do not think he has proved that he was insane at the time of the occurrence, you will consider the third question, whether the state of mind of the prisoner as revealed by the evidence—and you must proceed upon that alone—was such as to reduce the crime with which he is charged from murder to culpable homicide. You will now be good enough to retire and consider your verdict.