Scottish High Court of Justiciary Decisons

At advising on 10th February 1939 the opinion of the Court was delivered by the Lord Justice-General,—

LORD JUSTICE-GENERAL (Normand) [after the narrative already given]—As I have been present at both hearings it is proper for me to say that the argument addressed to us by the counsel who on each occasion represented the accused was admirably stated and was of great interest.

It will be convenient here to deal with the history of the plea of impaired responsibility. Neither Hume nor Alison recognises it, and both of them take the view that weakness of mind does not justify a reduction in the quality of the crime or a mitigation of the sentence, although it is a circumstance which does justify a recommendation to mercy. In Bell's Notes to Hume, however, we find the beginning of a less rigid view. There (at p. 5) it is said that, in offences inferring arbitrary pains, weakness of intellect is a relevant plea to use in mitigation of punishment, and that statement is supported by the citation of cases which need not detain us. In Dingwall, where the panel was charged with murder, Lord Deas directed the jury that they might treat the crime as falling short of murder on the ground of the "weakness of mind" of the panel, who had suffered from epileptic fits. In his view the state of mind of an accused person might legitimately be treated as an extenuating circumstance. In M'Lean, a case of theft by house-breaking reported to the Court before sentence, medical reports were obtained. Lord Deas in pronouncing sentence repeated the views which he had already expressed in Dingwall, saying that weakness of intellect might legitimately be taken into account as modifying the character and punishment of a criminal offence. No later case qualifies this statement of the effect of impaired responsibility, when it is properly proved.

The sentences pronounced by the Court in cases of this sort have varied. There have been other life sentences apart from the present case. Muir, the latest of them, is peculiar because the Court of Criminal Appeal there imposed a sentence of penal servitude for life on an appellant who had been sentenced to death after conviction on a charge of murder. The reason for setting aside the conviction was that, in the opinion of the Court of Appeal, the question of impaired responsibility and the jury's powers, if they were satisfied that such impairment existed, to treat the crime as culpable homicide had not been properly before their minds. In my opinion, it is clear that the Court gave the appellant the benefit of a reduction of the charge and conviction to a charge and conviction of culpable homicide instead of murder, and proceeded to pass a life sentence on that footing.

The appellant's counsel challenged these cases in which a life sentence had been pronounced, and he formulated his attack on the sentence under three heads. Firstly, he said that the Court was bound to assess the guilt and misfortune of the panel, and in this case the presiding judge had failed to do so. Secondly, he said that the protection of the public was not a relevant consideration for a judge in imposing criminal penalties. And, thirdly, he said that it was unfair and oppressive to pass an indeterminate sentence on the appellant because of his mental condition, and that such a sentence would prejudice any prospect of the appellant's restoration to a normal mental condition and normal responsibility.

I think that there is no doubt that the defence of impaired responsibility is somewhat inconsistent with the basic doctrine of our criminal law that a man, if sane, is responsible for his acts, and, if not sane, is not responsible. It is a modern variation of that basic doctrine, justified in each case by medical testimony directed to the special facts of the case. The mental weakness, or weakness of responsibility, is regarded by our law as an extenuating circumstance, and it has effect as modifying the character of the crime, or as justifying a modification of sentence, or both. When the jury has, under the presiding judge's direction, given effect to this extenuating circumstance by reducing the crime from murder to culpable homicide, the judge has still to consider whether it should have further weight when he is imposing sentence. There is no more delicate and difficult judicial duty than that of giving proper effect to all the relevant circumstances which fall to be considered in imposing punishment, and the delicacy and difficulty of the task are much increased in cases of this kind. But, while the factor of reduced responsibility is relevant and should not be disregarded by the presiding judge, it may be impossible, and must be impossible unless there has been evidence on the point, to assess the degree of responsibility for the criminal act which the accused person must bear. In this case the presiding judge states that he found it impossible to make that assessment, and I can find no material evidence on which the assessment could have been made. Yet it is to be borne in mind that there was some degree of diminished responsibility, although it cannot be assessed. That, however, is not the only relevant consideration, and I cannot assent to the contention that the protection of the public is to be disregarded, nor to the implied separation of the panel's own protection from that of the public. In the case of Dingwall Lord Deas observed that the interests of society can alone justify human punishment, and, long before that, Hume (i, 44) had declared that the Court never fails by its sentence to take order for the security to the people and to the man himself against the danger of his own malady, if unhappily he should again be visited by it. The interests of society include the reformation of the criminal, the prevention of the repetition of the crime by him or by others, and the protection of other members of the community. When a panel is convicted of a crime committed under an impulse which he is less able to resist than the normal person, and when there is evidence that the impairment of his powers of resistance may come into play after a long interval during which there have been no premonitory signs of danger, and when the crime has been one of atrocious ferocity, the protection of the public against its repetition is specially relevant. Counsel for the appellant did not shrink from maintaining that, although an insane person might properly be detained indefinitely, a person who was not insane, but whose responsibility was impaired in a high degree, should be leniently treated without regard to the safety of his fellows. This is, in my opinion, a reductio ad absurdum of the argument that the punishment should be measured by the responsibility of the criminal to the exclusion of other considerations. The Court can only deal with the appellant as with one who has committed a crime, and in considering the sentence it must take into account the considerations which I have mentioned. I am therefore of opinion that the second ground of attack on the sentence fails.

The effect of an indeterminate sentence on the appellant's future is a factor which common humanity forbids us to leave out of account. But inquiry has satisfied me that his mental and physical condition will be carefully considered; that, if necessary, ameliorative treatment will be given to him; and that his condition will be reviewed from time to time by the proper authorities, who have power to control the treatment and to order his eventual release. But it is, I think, necessary in cases of this kind that the prison authorities should have in mind the past medical history of the prisoner. I accordingly recommend that we should order the transmission of a copy of the evidence to the Prison Commissioners, and that this course should hereafter be taken by the presiding judge in all similar cases.

There is nothing which would justify us in interfering with the sentence, and I think that the appeal should be dismissed.