Scottish High Court of Justiciary Decisons

At advising, on 12th July 1991;—

LORD JUSTICE-GENERAL (Hope).—The appellant went to trial in the High Court at Glasgow on a charge of malicious damage, nine charges of assault involving the use of a knife in all but two of which he was also charged with attempted murder, one charge of breach of the peace and a charge of assaulting police officers in the execution of their duty contrary to the Police (Scotland) Act 1967, sec. 41 (1) (a). Most of the facts were agreed by joint minute except those relating to the charge of police assault, and the jury found the appellant not guilty on that charge. They found him guilty on all the other charges under deletion of the references to attempted murder, and subject to the rider that at the time of these offences he was acting under the influence of drugs administered to him without his knowledge. He has appealed against his conviction on the ground that the trial judge misdirected the jury that they could not acquit him of the charges of which he was convicted.

There was evidence that on the day in question the appellant had been drinking lager from a can. Unknown to him five or six tablets of temazepam and a quantity of L.S.D. had been squeezed into the can and he ingested these drugs along with the lager which he was drinking. Within about half an hour he started to scream continuously and to lunge about in all directions with a knife. Various people who were complete strangers to him were struck by him with the knife, and in most cases the injuries which they received were severe. The police arrived, but when they approached the appellant he continued to scream and he resisted arrest until he was handcuffed. He struggled continuously for about two hours until he was eventually taken to hospital where a drug was administered which brought him under control. Temazepam is a hypnotic drug which in most cases has a tranquillising effect, although in rare instances it may cause a person to over-react in a disinhibited way. L.S.D. on the other hand is a hallucinogen, whose effect initially is that of arousal. It tends to generate feelings of fear or anxiety, together with visual distortions. This may give rise to behavioural reactions in the form of paranoia and aggression, especially in the case of persons who are not aware that they have taken the drug. To a large extent the reaction depends on the individual, and it is not capable of being predicted.

The argument for the defence in this case was that the effect of the ingestion of these drugs was to deprive the appellant of his self-control to such an extent that he was incapable of mens rea, and that it should be left to the jury to consider whether or not they should acquit him on this ground. The Crown contended that, standing the agreed facts, there was no room for an acquittal because the only defence which could have been put forward to support such a verdict was a plea of insanity at the time. This argument was based on the decisions in H.M. Advocate v. Cunningham 1963 J.C. 80 and Carmichael v. Boyle 1985 S.L.T. 399; see also Clark v. H.M. Advocate 1968 J.C. 53. Since no plea of insanity had been offered and no evidence to that effect had been led, it followed that verdicts of guilty had to be returned. The trial judge took the view that he could not distinguish Cunninghamand Carmichael from the present case, so he directed the jury that the evidence about the appellant's mental state at the time could not result in his acquittal. The basis for that direction was the following passage in the opinion of Lord Justice-General Clyde in Cunningham at p. 84:

"Any mental or pathological condition short of insanity—any question of diminished responsibility owing to any cause, which does not involve insanity—is relevant only to the question of mitigating circumstances and sentence."

That was a case where the appellant had claimed that he was not responsible for his actings on account of the incidence of temporary dissociation due to an epileptic fugue or other pathological condition. In Carmichael v. Boyle, where the respondent was a diabetic of low intelligence, the sheriff held that he had committed the acts charged when in a state of hypoglycaemia and acquitted him on the ground that he lacked mens rea. His decision was reversed on appeal, and the court took the opportunity to point out that Cunningham was completely general in its terms and that its authority had to be accepted and followed until its authority was superseded by an Act of Parliament or by a larger court. We are now in a position, as a court of five judges, to re-examine the decision in Cunningham especially in its application to the facts of the present case.

It should be noted that senior counsel for the appellant did not seek to challenge the soundness of that decision on its own facts. He recognised that reasons of public policy might exist for insisting that, where the mental condition which is said to affect mens rea is a pathological condition which might recur, it must be the subject of a special defence of insanity at the time. A similar view has been taken in England, where in R. v. Sullivan [1984] A.C. 156 it was held that in cases of a disorder amounting to a disease of the mind, whether permanent or transient, such as epilepsy, the proper verdict of acquittal is one of not guilty by reason of insanity. The consequences of such a verdict are severe, having regard to the provisions of sec. 174 (3) of the Criminal Procedure (Scotland) Act 1975 which are mandatory. There may be cases, such as those where the condition is due to epilepsy or hypoglycaemia, where any period of detention of the accused in a state or other hospital might seem to be unjustified. But that is not an issue which arises in this case. We are concerned here only with a mental condition of a temporary nature which was the result of an external factor and not of some disorder of the mind itself which was liable to recur. Nor does any issue arise in this case, having regard to the jury's verdict, about the effect on the accused's mental condition of an external factor which is self-induced. Senior counsel accepted that there were clear reasons of public policy for holding, as in Brennan v. H.M. Advocate 1977 JC 38, that a person who voluntarily and deliberately consumes known intoxicants cannot rely on his own action either as a foundation for a special defence of insanity at the time, let alone as a basis for the argument that he did not have the mens rea necessary for a finding that he was guilty of the crime charged. The jury's rider was that the drugs were administered to the appellant without his knowledge. We are concerned here therefore only with those cases where there is no disease of the mind and where the external factor which has caused the impairment is not self-induced.

In principle it would seem that in all cases where a person lacks the evil intention which is essential to guilt of a crime he must be acquitted. Hume on Crimes (3rd edn.), i, 21 describes dole or mens rea as "that corrupt and evil intention which is essential (so the light of nature teaches, and so all authorities have said) to the guilt of any crime". So if a person cannot form any intention at all because, for example, he is asleep or unconscious at the time, it would seem impossible to hold that he had mens reaand was guilty in the criminal sense of anything he did when he was in that state. The same result would seem to follow if, for example, he was able to form intention to the extent that he was controlling what he did in the physical sense, but had no conception whatever at the time that what he was doing was wrong. His intention, such as it was, would lack the necessary evil ingredient to convict him of a crime. Insanity provides the clearest example of this situation, but I do not see why there should be no room for the view that the lack of evil intention in cases other than insanity, to which special considerations apply, should not also result in an acquittal. Indeed, since it is for the Crown to prove mens reaas well as the actus reus of the offence, it would seem logical to say that in all cases where there is an absence of mens reaan acquittal must result.

I have already mentioned the exception on grounds of public policy which applies where the condition which has resulted in an absence of mens rea is self-induced. In all such cases the accused must be assumed to have intended the natural consequences of his act. As Lord Justice-General Emslie said in Brennan at p. 46, a person who voluntarily and deliberately consumes known intoxicants cannot rely on the resulting intoxication as the foundation of a special defence of insanity at the time, nor can he plead diminished responsibility. Standing the decisions in Cunninghamand Carmichael, these were the only defences which might be thought to be available in such cases, and no doubt it was for that reason that it was felt unnecessary to go further in disposing of the argument that a person who suffers total alienation of reason as a result of self-induced intoxication is free from any criminal responsibility. In my opinion the reasons why, in the phrase used by Hume, i, 46, "our custom utterly disowns any such defence", exclude also any defence based upon the argument that self-induced intoxication has resulted in the absence of mens rea.

But we are concerned in this case with a situation to which that exception does not extend, and where there is no continuing disorder of the mind or body which might lead to the recurrence of the disturbance of the appellant's mental faculties. Senior counsel's argument was that in all such cases where there is a loss of self-control which is not self-induced and is not due to any continuing physical or mental disorder, it should be left to the jury to consider whether mens rea has been established by the Crown, without the lodging of a special defence directed to this issue. Much of what he said to us was not in dispute, because the learned Solicitor General accepted that there was a basis in the evidence which was led in this case for the jury to find that the appellant was totally without responsibility for his actions due to the effects of the drugs which he had unknowingly consumed. I understood him to accept that there was evidence that the appellant had no control over his actions with the result that they were involuntary. So I think we can treat this case as one where the accused committed the acts with which he was charged while he was not conscious of what he was doing, and that he was in the state which has been described in some of the cases as that of non-insane automatism.

The Solicitor General went on to accept that the court could, consistently with principle, recognise that an accused person could be acquitted on the ground that he was totally irresponsible for his actings on a ground other than that of insanity at the time. He emphasised the need for a total alienation of reason resulting in a complete loss of control over his actions before an acquittal could be justified on the ground that there was an absence of mens rea.If this was the extent of the irresponsibility resulting from their effects, then the fact that this was due to the consumption of drink or drugs or to other external factors such as toxic exhaust fumes was of no consequence, so long as this was not self-induced. He invited us to approach the points raised by senior counsel for the appellant's argument on the view that the total alienation of reason which was required was the same in its effect on mens rea as insanity. He submitted that, as in the case of the special defence of insanity at the time, there was an onus on the accused to establish that the presumption that a person who was responsible for his actions had been overcome. But if that onus was satisfied a verdict of acquittal would be consistent with principle and not open to objection on grounds of public policy.

The first point to be considered is whether it is consistent with principle for a person to be acquitted where he claims to have entirely lost his self-control for reasons which are not due to a disease of the mind and in circumstances which are not self-induced. Dictawhich favour this approach are to be found in three cases, all at first instance, where the point was made by the trial judge in the course of his charge. In H.M. Advocate v. Ritchie 1926 JC 45, the driver of a motor car who was charged with causing death by reckless driving lodged a special defence that he was not guilty because of temporary mental dissociation due to toxic exhaust factors. He claimed that he was unaware of the presence of the deceased on the highway and of his injuries and death and that he was incapable of appreciating what he was doing. Lord Murray said of this special defence at p. 48 that it was:

"a somewhat novel one, based upon the alleged abnormal and irresponsible condition of the accused at the time of the accident. Such irresponsibility may create criminal immunity and form the ground of a good defence; but there is a strong presumption in favour of normality and responsibility. That presumption may be overcome, but the onus of proof lies, as indeed was conceded by counsel for the defence, upon the person who pleads that he is abnormal and irresponsible".

Having reminded the jury of the basis for the defence of irresponsibility, which was that owing to some disordered condition of the mind which affected its working, the affected person did not know the nature of his act or, if he did know what he was doing, he did not know that what he was doing was wrong, he referred first to conditions which fell short of inferring irresponsibility. He then said this at p. 49:

"But where the defence is that a person, who would ordinarily be quite justified in driving a car, becomes—owing to a cause which he was not bound to foresee, and which was outwith his control—either gradually or suddenly not the master of his own action, a question as to his responsibility or irresponsibility for the consequences of his action arises, and may form the ground of a good special defence. The question, accordingly, which you have to determine is whether, at the time of the accident, the accused was or was not master of his own action. So put, the question becomes a pure question of fact."

This direction has not been referred to with approval in any subsequent Scottish case to which we referred, and it was expressly disapproved in Cunningham at p. 83 for reasons to which I shall return. But it was referred to by Lord Denning in Bratty v. Att.-Gen. for Northern Ireland [1963] AC 386 at p. 410 in support of the proposition that a person may have a defence if he can show that what he did was an involuntary action in the sense that he was unconscious at the time and did not know what he was doing. It was the basis also for a submission in Watmore v. Jenkins [1962] 2 Q.B. 572 that automatism is a defence to a charge of dangerous driving, provided the person takes reasonable steps to prevent himself from acting involuntarily in a manner dangerous to the public and provided it was caused by some factor which he could not reasonably foresee and not by a self-induced incapacity. That submission was referred to with approval in R. v. Quick [1973] QB 910, which was concerned with a malfunctioning of the mind caused by the taking of insulin. The defendant, Quick, who was a nurse in a mental hospital, had assaulted a patient there while in a condition which, according to his medical evidence, was consistent with hypoglaecaemia. The judge at the trial ruled that the evidence could only support a defence of insanity and not a defence that he was suffering from automatism. But it was held on appeal that the question whether he was suffering from automatism should have been left to the jury to decide. And Lord Murray's direction was referred to in R. v. Cottle [1958] N.Z.L.R. 999 by Gresson P. at p. 1017, in the course of an extensive analysis of cases from various Commonwealth countries in support of the defence of automatism. It was held in that case, where the defence was based on evidence about epileptic fits, that if there is sufficient evidence on which a finding of automatism could be based the jury should be told that they must consider whether they are satisfied that the Crown has discharged its onus of proof of the guilt of the accused. It is worth noting at this point that in R. v. Sullivan [1984] A.C. 156 Lord Diplock mentioned at p. 172 the possibility of non-insane automatism, for which the proper verdict would be a verdict of not guilty, in cases where temporary impairment, not being self-induced by consuming drink or drugs, results from some external factor such as a blow on the head causing concussion, or the administering of an anaesthetic for therapeutic purposes. He did not think it appropriate in that case to explore possible cases of non-insane automatism and the two examples which he gave are distinct from the circumstances in Ritchie and from those in the present case. Nevertheless it is significant that Lord Murray's direction is consistent with the approach taken in these various cases in other countries which favour this defence in cases other than that of insanity.

In McGregor v. H.M. Advocate (1973) S.C.C.R. Supp. 54 Lord Fraser was dealing with charges of assault to the danger of life and of reckless driving. The defence was that the accused had formed no intention of doing the acts with which he was charged because he was unable to form this intention due perhaps to drugs. He admitted to having consumed some drink voluntarily before the incidents took place, but the question was raised whether drugs had also been administered to him without his knowledge. This was not the subject of a special defence, and Lord Fraser did not suggest that it should have been or that there was any onus of proof on the accused. He directed the jury at p. 57 to consider the question whether the case came within the category of cases where the person was unable to form an intention to do anything at the time. The typical case which he described was that of a robot or of automatism as where the person is unconscious due to an anaesthetic or is asleep. This approach received no encouragement when the case was taken to appeal, the accused having been found guilty but with a finding that drugs administered to him without his knowledge was a factor on all charges. His charge was said to have gone further than the propositions desiderated and, on the face of it, to be even more favourable to the accused than that which it was said he should have given. The court made it clear at p. 59 that it was not to be taken as having endorsed the correctness of the charge. There was some discussion in the hearing before us as to the soundness of some of what Lord Fraser said in that case. H.M. Advocate v. Simon Fraser (1878) 4 Coup. 70 was referred to by senior counsel as providing support for his approach, this being one of the very rare examples of a crime having been committed while the accused was asleep. It was suggested to the jury by Lord Justice-Clerk Moncreiff at p. 75 that they should find that the pannel killed his child "but that he was in a state in which he was unconscious of the act which he was committing by reason of the condition of somnambulism and that he was not responsible." The verdict which was recorded in that case was in accordance with this direction. We have been shown a copy of it, and it is in these terms:

"The jury unanimously find that the pannel killed his child when he was unconscious of the nature of the act which he committed, by reason of a condition of somnambulism, and that the pannel was not responsible at the time. The court (delayed pronouncing sentence in the meantime) continued the diet against the pannel till Wednesday first the seventeenth current at 3 o'clock; and ordained him in the meantime to be detained in the prison of Edinburgh."

Evidently this was not seen as a verdict of acquittal, otherwise there would have been no question of the pannel's being detained after it was pronounced. I do not think that this case can be regarded as anything other than a very special one, and it does not provide authority for the argument that a verdict of acquittal is appropriate where mens rea is absent because of automatism. Nevertheless, I find Lord Fraser's remarks to the jury in McGregor of some assistance in the present case, especially where he talks about the person being "unable" to form the intention to do the acts with which he is charged. This is in accordance with the Solicitor General's argument that what one should be looking for is a total alienation of reason with the result that the accused had no idea of what he was doing at the time.

The third case in this chapter is H.M. Advocate v. Raiker 1989 S.C.C.R. 149, where the trial judge, Lord McCluskey, directed the jury at p. 154, in regard to a defence which had been advanced by the accused Skellet, that where a person acts under a real, genuine and justifiable fear that if he does not act in accordance with the orders of another that other person will use life-threatening violence against him, he cannot be said to have the evil intention which the law regards as the necessary ingredient in the carrying out of a crime. Having thus dealt with the defence of coercion, he went on to say this:

"Ladies and gentlemen, the same rule, the same idea, applies not just to a person acting under genuine serious fear of physical violence, it applies even if he was acting, for example, under hypnosis or wholly and completely under the influence of some drug which was administered by force or by stealth without his consent, if it was a drug which like hypnosis put his will as it were under the control of another."

That direction was not, I think, consistent with either Cunningham or Carmichael, according to which that defence, since it falls short of a defence of insanity at the time, would have to be rejected and regarded as relevant only to mitigation of sentence. But it is, nevertheless, in accordance with the principle which was noted in both Ritchie and McGregor that a necessary element in every crime is the existence of mens rea and with its corollary that where evil intention is entirely absent there can be no mens rea and a verdict of acquittal must result.

The question then is whether Cunningham was correctly decided on this point, and especially whether the court was right to disapprove of Lord Murray's charge in Ritchie. I should stress again that we were not invited to reconsider the soundness of Cunningham as a decision on its own facts. We are not concerned in this case with a pathological condition such as epilepsy or with the questions of public policy which may affect how such cases should be approached. The discussion in Lord Justice-General Clyde's opinion at p. 83 is directed principally to the question whether the categories of special defence should be extended to include what he saw as a new one which, although short of insanity, would lead to an acquittal. There is no discussion of the principle that mens rea is a necessary ingredient of any crime. The whole approach seems to be one directed to grounds of public policy. It is said that to allow such a novel type of defence could lead to serious consequences so far as the safety of the public is concerned, and Lord Murray's approach is criticised on the ground that:

"To affirm or even extend that decision would lead to laxity and confusion in our criminal law which could do nothing but harm".

In my opinion these strictures are not justified in cases where the defence is based, as it was in Ritchie, on an inability to form mens rea due to some external factor which was outwith the accused's control and which he was not bound to foresee. I do not see why laxity or confusion should result if we were to recognise that, where the point is sufficiently put in issue, an accused should be acquitted if the jury are not satisfied that the Crown has proved mens rea. That would be entirely consistent with the principle that the onus rests throughout on the Crown. The requirements that the external factor must not be self-induced, that it must be one which the accused was not bound to foresee, and that it must have resulted in a total alienation of reason amounting to a complete absence of self-control, provide adequate safeguards against abuse.

This brings me to the second point which must be considered in this case, which is whether there is any onus on the accused to establish this defence. Lord Murray said in Ritchie at p. 48 that the onus of proof lay, as was conceded by counsel for the defence in that case, upon the person who pleads that he is abnormal and irresponsible. The learned Solicitor General invited us to follow this approach, on the view that what was appropriate in regard to the defence of insanity at the time was appropriate here also, and also as a necessary precaution against the risk that juries might too easily be persuaded to give effect to this defence. In Lambie v. H.M. Advocate 1973 J.C. 53, it was held by a court of five judges that there was no onus upon the accused to establish a special defence other than that of insanity. Lord Justice-General Emslie at p. 57 gave as the reason for distinguishing the special defence of insanity at the time the fact that proof of insanity is required before the presumption of sanity can be displaced. The Solicitor General submitted that this reasoning could be applied also to cases where a defence of total alienation of reason was advanced, on the view expressed by Lord Murray in Ritchie at p. 48 that there was a presumption in favour of normality and responsibility—in other words that the accused was sane and that he was responsible for the acts which he has been proved to have done.

Before dealing with this argument I should mention that there is perhaps another reason why there is an onus on the accused to establish insanity if what he is seeking is a verdict from the jury of acquittal on this ground. An express finding to this effect is a necessary prerequisite for the operation of sec. 174 (3) of the 1975 Act, under which an order is made that the person is to be detained in a state or other hospital. So also in cases where a verdict of culpable homicide on the ground of diminished responsibility is sought, the accused requires an express finding by the jury who must be satisfied that his defence of partial responsibility is made out before a verdict in these terms can be returned: see H.M. Advocate v. Braithwaite 1945 J.C. 55 per Lord Justice-Clerk Cooper at p. 58. But in cases where a verdict of acquittal only is sought, as in the present case, this requirement does not arise. The jury do not need to be satisfied, or to find it proved, that the accused was without mens rea for the reason which has been advanced. What they require to consider is whether the Crown has established mens rea, since facts bearing on that point have been put in issue by the defence, and because the onus of establishing mens rea in every case rests throughout on the Crown.

Senior counsel for the appellant's argument that there is no onus on the accused in these cases is consistent with the approach taken by Lord Fraser in McGregor and by Lord McCluskey in Raiker, neither of whom suggested that there was any such onus on the accused. In both cases the jury were directed to approach the issue on the basis that the onus was on the Crown to prove that the accused was guilty beyond reasonable doubt. As against that there are the views of Lord Murray in Ritchie and of Lord Justice-Clerk Cooper in Braithwaite. As the Lord Justice-Clerk put it in that case at p. 58:

"If the Crown have established that the accused did this thing, it is not for the Crown to go further and show that he was fully responsible for what he did; it is for the accused to make good his defence of partial irresponsibility, and that means that he must show you that the balance of probability on the evidence is in favour of the view that his accountability and responsibility were below normal."

The learned Solicitor General submitted that in order to achieve consistency in our law we should follow the same approach, assuming that we were to recognise that a defence of irresponsibility on grounds other than insanity could be sustained. This is not what has been done in other jurisdictions, where the approach has been to treat insanity as a category on its own, and in regard to all other defences, including that of automatism, to treat the onus as resting throughout on the Crown. In Hill v. Baxter [1958] 1 Q.B. 277, the court reserved its opinion on this question, although Devlin J. said at p. 285:

"As automatism is akin to insanity in law there would be great practical advantage if the burden of proof was the same in both cases. But so far insanity is the only matter of defence in which under the common law the burden of proof has been held to be completely shifted."

But in Bratty v. Att.-Gen. for Northern Ireland [1963] AC 386, it was accepted that the overriding principle laid down in Woolmington v. D.P.P. [1935] AC 462 applied, namely that it is for the prosecution to prove every element of the offence charged, one of which is the accused's state of mind. Viscount Kilmuir L.C. explained this point at p. 407:

"… one must not lose sight of the overriding principle, laid down by this House in Woolmington's case, that it is for the prosecution to prove every element of the offence charged. One of these elements is the accused's state of mind; normally the presumption of mental capacity is sufficient to prove that he acted consciously and voluntarily, and the prosecution need go no further. But if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea—if indeed the actus reus—has not been proved beyond reasonable doubt".

And Lord Denning at p. 413 adopted the same approach, distinguishing cases of involuntary acts due to automatism from cases of insanity in this way:

"The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary."

In the Australian case of The Queen v. O'Connor (1980) 146 C.L.R. 64, which was concerned with the relevance of voluntary intoxication in determining whether the accused had the mental element for the commission of the offence, Barwick C.J. said at p. 71 that proof of a state of intoxication, whether self-induced or not, was merely part of the totality of the evidence which might raise a reasonable doubt as to the existence of the element of criminal responsibility:

"Such a doubt, if not removed by the Crown to the satisfaction of the tribunal of fact, will warrant an acquittal, not because the accused was intoxicated but because the charge will not have been proved beyond reasonable doubt. The onus made clear by the decision in Woolmington v. D.P.P. will not have been discharged."

The same approach has been taken to the matter in New Zealand. In R. v. Cottle [1958] N.Z.L.R. 999 Gresson P., at pp. 1007–1008, having mentioned various cases where the absence of intent may be raised by the defence, said:

"The onus of excluding all such defences, if raised, and when some evidence in support of them has been tendered, rests on the prosecution save only in the case of insanity, the onus of proving which lies on the accused. Woolmington v. D.P.P. establishes this beyond all question."

We were referred also to a number of cases from South Africa which indicate a gradual acceptance of the rule that the onus lies throughout on the prosecution to prove all the allegations in the charge which are necessary to constitute the crime. In R. v. Innes Grant 1949 (1) S.A. 753, Centlivres J.A. said at p. 765 that dicta to the contrary might require review, and in S. v. Trickett 1973 (3) S.A. 526 and S. v. Hartyani 1980 (3) S.A. 613 it was established that, since it was for the State to prove the case beyond reasonable doubt, there was no onus on the defence to prove anything in support of a defence of involuntary intoxication. As I. W. B. de Villiers A.J. put it [in Hartyani] at p. 618:

"The correct test in the instant case is accordingly whether the State has proved its case beyond reasonable doubt. No onus is placed on the appellant to prove affirmatively on a balance of probabilities that intoxicating liquor had been administered to him without his knowledge and that, if it had not been administered, he would not have been in the condition he was in at the time of the collision."

There is much to be said at first sight for the consistency of approach which the Solicitor General urged us to adopt. But these various references to the way in which the matter has been dealt with in other jurisdictions, for which I am indebted to the Solicitor General's carefully researched argument, show that the answer to the point lies in a correct understanding of why it is that insanity forms an exception to the ordinary rule that the onus throughout is on the Crown. I think that this is best expressed by Lord Justice-General Emslie in Lambie v. H.M. Advocate 1973 J.C. 53 at p. 57 where, distinguishing insanity from all other special defences in this regard, he said:

"… we ignore the special defence of insanity at the time since it is quite clear that there is in such a case an onus upon the defence to establish it since proof of insanity is required before the presumption of sanity can be displaced."

The presumption to which he refers is the presumption of sanity, not that of responsibility. This is a distinction which was recognised for example in Brattyin the passage which I have quoted from Lord Denning's speech at p. 413. Viscount Kilmuir's speech at pp. 403–404 in that case also draws a clear distinction between a defence of insanity on the one hand and a defence based on automatism due to something other than a defect of reason from disease of the mind on the other, and this forms the background to the passage which I have quoted from his speech at p. 407. In my opinion Lord Justice-Clerk Cooper's reference in Braithwaite at p. 58 to there being no onus on the Crown, having established that the accused did the thing with which he was charged, to go further and show that he was fully responsible for what he did must be seen in the light of the issue raised in that case. This was one of diminished responsibility due to mental weakness or aberration, amounting or approaching to partial insanity. It is in that context that his reference to the accused's "accountability and responsibility" should be understood. In such cases the presumption of sanity applies and it must be displaced by the defence. But no issue was taken in this case about the sanity of the appellant. It was not his contention, to use Lord Murray's words in Ritchie at p. 48, that he was "abnormal and irresponsible"—that is to say, that he was irresponsible due to some underlying and continuing state of abnormality which affected his behaviour. The issue which was raised was one directed to a temporary but total loss of control over his actions which was due to a condition induced by an external factor, namely drugs, which had nothing to do with any disease of the mind. That being the issue there was no presumption of sanity to be displaced. It was accepted that, but for the influence of drugs, he had the mental capacity which everyone is assumed to possess. I see this case therefore as one to which the ordinary rule applies that the onus is on the Crown to establish the accused's guilt beyond reasonable doubt. It was for the jury to consider whether the defence evidence raised a reasonable doubt as to the accused's ability to form the intention to commit the crimes with which he was charged.

I recognise that this answer to the learned Solicitor General's argument raises questions about what safeguards if any there may be against this point being raised unexpectedly by the defence. Section 149A of the Criminal Procedure (Scotland) Act 1975, which was inserted by sec. 30 of the Criminal Justice (Scotland) Act 1980, enables the judge to permit the prosecutor to lead additional evidence for the purpose of contradicting evidence given by a defence witness which could not reasonably have been anticipated by the prosecutor. But to rely on evidence in replication as a universal solution to this problem would be unsatisfactory due to the obvious inconvenience and the risk of unfairness if the trial had to be adjourned or postponed before the additional evidence could be led. The better view, in my opinion, might be to insist that if the issue of automatism—and by this word I include all those cases where the accused, while not insane, is said to have had no control over his actions—is to be raised by the defence, it should be intimated by written notice as a special defence in terms of sec. 82 of the Act. This was done in Ritchie, and it did not attract criticism in that case. But it is, of course, contrary to what was said in Cunningham where Lord Justice-General Clyde said at p. 83 that the special defence which was proposed in that case, which was of temporary dissociation due to an epileptic fugue, was not a competent special defence at all. As he put it:

"The categories of special defences are well-known and have long been recognised in our law. As I see it, the so-called ‘special defence’ in the present case constitutes an attempt to extend the categories of special defences in order to include a new one, namely something short of insanity, which would lead to an acquittal. For this I can see no warrant in principle."

But the only reason for the rejection of this as a special defence, other than considerations of public policy, was that proof of the facts stated in it would not justify a verdict of not guilty. The ratio of his approach lies in this sentence:

"To constitute a valid special defence the proof of the factors in it should lead to a verdict of ‘not guilty’."

The conclusion which I invite your Lordships to reach in this case is that Cunningham was wrongly decided in so far as it held that any mental or pathological condition short of insanity is relevant only to the question of mitigating circumstances and sentence. A verdict of acquittal would be an appropriate verdict if the jury are not satisfied beyond reasonable doubt as to the accused's ability to form the intention to commit the crime with which he is charged. So I cannot see any objection in principle to regarding the defence of automatism, which may thus lead to a not guilty verdict, as inappropriate, let alone as incompetent, as a special defence.

However that may be, since we are not all agreed on this matter, which in any event was not fully argued in this case, I prefer to reserve my opinion as to whether written notice of this defence should be required. The risk of the Crown being taken by surprise in these cases, where there is a genuine point to be made, is after all not very great. The opportunity exists for the accused to disclose this defence at his judicial examination, and his failure to do so may be the subject of comment if he gives evidence in support of it at his trial. Furthermore, as the point is not one for the Crown to anticipate, it is for the defence to lead sufficient evidence to entitle the jury to consider the issue at the end of the day. If the judge considers that there is no evidence from which the requisite conclusion could reasonably be drawn it will be his duty to direct the jury that it is not open to them to consider it, as in the case of a special defence: see Crawford v. H.M. Advocate 1950 J.C. 67 per Lord Justice-General Cooper at p. 69. In considering that issue the judge should have regard to the requirements which I mentioned at the end of the first chapter of this opinion, namely that the external factor which is alleged must not be self-induced, that it must be one which the accused was not bound to foresee and that it must be one which resulted in a total loss of control of his actions in regard to the crime with which he is charged.

For these reasons I consider that we should now overrule Cunningham to the extent indicated by this opinion, and with it the decisions in Clark and in Carmichael in so far as they proceeded on an acceptance of the decision in Cunningham to this extent. The trial judge was right to regard himself as obliged by Cunningham to direct the jury that the evidence about the appellant's mental state at the time could not result in his acquittal. But the jury should have been invited to consider this evidence and, since it is not disputed that there was evidence which would have entitled them to acquit the appellant on this ground, I think that we must now quash his conviction on all charges on the ground that a miscarriage of justice has occurred.

LORD ALLANBRIDGE .—I have had the advantage of reading the opinion of your Lordship in the chair. I entirely agree with its conclusions and venture to add only a few brief observations of my own.

In the present case the appellant alleged that unknown to him his can of lager had temazepam and a quantity of L.S.D. squeezed into it with the result that he was deprived of his self-control to such an extent that he was incapable of mens rea. If this in fact was the effect of the drugs and he was in such a mental condition that he was unable to form any intent—be it good or evil—then clearly he could not have the necessary mens rea to be guilty of a criminal offence.

In such a situation I agree that the case of Cunningham, along with the following cases of Clark and Carmichael should now be overruled in so far as they conflict with the view that an accused will not have the necessary mens rea if his mind is so affected by a non self-induced and unforeseeable factor that the result is a total loss of control over his actions which have led to the alleged crime charged being committed.

There can be no doubt that as the onus is always on the Crown to prove mens rea, there is no onus on the defence to prove the absence of it. As regards the question of whether such a defence of automatism should be made the subject of a special defence, I must confess that in my view it would seem preferable that it should be. The special defence procedure has in my experience worked well in practice not only in giving notice to the Crown but also in focusing attention on one of the important aspects in any given case.

In a case such as the present where it is alleged that drugs were introduced by stealth by another into the appellant's drink, such a defence would have been somewhat similar to a special defence of incrimination. However, as the matter was not argued fully before us I can appreciate the strength of the contrary view that it should be for the legislature and not for the court to innovate on our long established procedure on this matter. I am content that this court should not make such an innovation in this appeal.

On the whole matter I agree that this appeal should be allowed and that the conviction should be quashed on all charges.

LORD McCLUSKEY .—This appeal raises the general issue of the criminal responsibility under Scots law of an adult who has performed acts having all the characteristics of acts which the courts would normally treat as criminal but has done so in circumstances in which there is evidence that he would not have performed those acts at all but for the fact that at the material time he was acting under the influence of drugs administered to him without his knowledge. The issue is not new either in Scotland or in other jurisdictions; and we have had the benefit of very full submissions from counsel in the course of which our attention was drawn to many authorities and texts in which the issue and others closely related to it are examined. Your Lordship in the chair has summarised and analysed both the submissions and all the authorities and I do not consider that that exposition can be improved upon. I wholly agree with it and wish to adopt it without repetition. However, as I wrote my opinion before reading your Lordship's in draft, I wish to record my own opinion on this important issue. I shall approach it by attempting first of all to distinguish it from other closely related issues; then I shall consider what answer is to be derived from examining and applying the fundamental principles of our criminal law. Finally, I shall consider if previous authorities place any barrier to accepting the answer derived from principle.

Hume in his Commentaries on Crimes (3rd edn.), vol. I, chap. I, after dealing with insanity proper, refers, (III, p. 45) to "that sort of temporary madness, which is produced by excess intoxicating liquors", and, describing it as a "wilful distemper", distinguishes it altogether from insanity proper by saying, "…certain it is, that the law of Scotland views this wilful distemper with a quite different eye from the other, which is the visitation of Providence".

Insanity proper, in Hume's treatment of the subject (p. 37), is "an absolute alienation of reason" which results from "disease". The distinction thus drawn between a disordered state of mind brought about by an illness and a disordered state of mind brought about by an illness and a disordered state of mind brought about by the ingestion of a drug such as alcohol is so clear that it need not be laboured. There could be many reasons why the law should evolve and apply different rules of criminal responsibility to persons whose "criminal" behaviour has resulted from a disease or illness whether it be chronic, recurrent or sudden and unforeseen from the rules applicable to persons whose "criminal" behaviour has resulted from the ingestion of a drug. The rules about criminal responsibility in different situations invariably contain a substantial element of policy, as distinct from, though perhaps in addition to, logical deduction from principle or code. Thus it is a matter of legal policy rather than of logic that no child under the age of eight years can be found guilty of any offence (sec. 369 of the Criminal Procedure (Scotland) Act 1975). Equally it is a matter of legal policy that a person who was "insane" (within the legal meaning of the term) when he committed the criminal act is acquitted "on account of his insanity at that time" (sec. 174 (2) of the 1975 Act). Accordingly, recognising both the distinction itself and also the possibility of several different possible solutions to each of the problems of criminal responsibility, it is necessary to recognise that the answer which the law should provide on the matter of criminal responsibility in the case of insanity proper may be different from the answer which is appropriate in relation to a "sort of temporary madness" resulting from the ingestion of some intoxicant. The importance both of the distinction and of the consequence that the solutions in relation to criminal responsibility in the two cases may be different is made absolutely clear in Brennan v. H.M. Advocate 1977 JC 38. In that case the appellant lodged a special defence of insanity. The factual background was that at the time of the alleged crime (assault with a knife or similar instrument and murder) he was intoxicated by the voluntary consumption both of a large quantity of alcoholic drink and of the drug L.S.D. (a hallucinogenic drug). What bore to be a special defence of insanity was lodged and the leading authorities on insanity in Scots law were quoted to the court and, in some cases, referred to by the court. The opinion of the court made it plain not only that mere intoxication, however gross, was not to be confused with true insanity resulting from mental disease, but also that the rules of criminal responsibility falling to be applied to the two distinct cases were different.

Brennan also made it clear that the ratio of that case was intended to apply to, and only to, the case where, "the state of the appellant's mind was … attributable merely to the transitory effects of alcohol and L.S.D. deliberately consumed by the appellant with knowledge, from his previous experience of both, that they were bound to intoxicate him" (p. 42). On that basis the court said:

"It will be seen therefore that the first submission for the appellant raises the single and important question whether a temporary impairment of mental faculties resulting merely from self-induced intoxication may, in our law, amount to insanity for the purposes of a special defence such as the appellant tabled in this case."

It is also, I believe, clear from the reference in Brennan to a passage from the speech of Lord Elwyn-Jones, L.C. in D.P.P. v. Majewski [1977] AC 443 and from the concluding observations of the court in Brennan that the decision as to the character of criminal responsibility in intoxication cases is essentially based on an amalgam of legal reasoning and of policy considerations. Thus the opinion of the court in Brennan says:

"There is nothing unethical or unfair or contrary to the general principle of our law that self-induced intoxication is not by itself a defence to any criminal charge including in particular the charge of murder. Self-induced intoxication is itself a continuing element and therefore an integral part of any crime of violence, including murder, the other part being the evidence of the actings of the accused who uses force against his victim. Together they add up or may add up to that criminal recklessness which it is the purpose of the criminal law to restrain in the interests of all the citizens of this country."

This is an echo of the Lord Chancellor's observation in Majewski:

"If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases. The drunkenness is itself an intrinsic, and integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness."

Thus in the self-induced intoxication case the court finds evidence of criminal recklessness amounting to mens rea in the deliberate ingestion of an intoxicating substance and in this way makes the clearest possible distinction between the "temporary madness" which results from the voluntary ingestion of intoxicants and the "insanity" which is brought about by mental disease. One only has to take the quotation in Brennan and substitute the word "insanity" for the words "self-induced intoxication" to mark the distinction: so altered, the passage would then read:

"There is nothing unethical or unfair or contrary to the general principle of our law that insanity is not by itself a defence to any criminal charge including in particular the charge of murder."

This exercise perhaps helps to illustrate the absurdity of equating the two different things.

It is but a short step from the reasoning in Brennanto appreciate that there is, or at least there may well be, a material difference between the criminal responsibility of a person whose "temporary madness" was wholly brought about by self-induced intoxication by drugs, on the one hand, and the criminal responsibility of the person whose "temporary madness" has been caused by intoxication wrought by the actings of another in administering the intoxicant to that person without that person's knowledge. (A similar case to the latter would be the one where the person accidentally and unwittingly administered the intoxicant to himself.) Indeed one can see at once that the "evidence of mens rea" referred to by Lord Elwyn-Jones or the "self-induced intoxication" as "an integral part of any crime of violence", (Lord Justice-General Emslie in Brennan), is wholly lacking in the case where the intoxicant has been administered to a person to whom an intoxicant is administered without his knowledge that he is guilty of "criminal recklessness" or that he has engaged in a "course of conduct in reducing himself by drugs and drink to that condition". Nor, to quote the words of Lord Elwyn-Jones, could he be said to have engaged in "a reckless course of conduct" which is "enough to constitute the necessary mens rea in assault cases". The general conclusion at which I arrive, therefore, is that whatever is the appropriate legal policy to adopt in relation to the case of the person who acts under the influence of drugs administered to him without his knowledge, there is no obvious reason why that policy should be the same as the policy applicable to the person who is "insane" in the traditional sense in which that term is used in Scotland or to the person who acts under the influence of self-induced intoxication. All three cases are different.

I turn therefore to consider what answer might be derived from a study of the fundamental principles of our criminal law. One of the basic axioms of Scottish criminal law and practice is that the burden of proof rests upon the prosecutor:

"The presumption of innocence is a fundamental tenet of our criminal procedure. It follows that the burden of proof rests on the Crown to displace this presumption. It is further a fundamental tenet that the standard by which this burden falls to be discharged is the establishing of the guilt of the accused beyond reasonable doubt. As this is a fundamental matter, judges ought as a matter of course, to tell the jury about it"

, per Lord Justice-Clerk Thomson in McKenzie v. H.M. Advocate 1959 J.C. 32 at p. 37.

For a time, judges directed juries that if the accused lodged a special defence of alibi, self-defence or incrimination the onus of proving the special defence rested upon the accused. However, in Lambie v. H.M. Advocate 1973 J.C. 53 a court of five judges made it clear that that practice was an error. The true position as stated by the court, was:

"The only purpose of the special defence is to give fair notice to the Crown and once such notice has been given the only issue for a jury is to decide upon the whole evidence before them, whether the Crown has established the accused's guilt beyond reasonable doubt. When a special defence is pleaded, whether it be of alibi, self-defence or incrimination, the jury should be so charged in the appropriate language, and all that requires to be said of the special defence, where any evidence in support of it has been given, either in course of the Crown case or by the accused himself or by any witness led for the defence, is that if that evidence, whether from one or more witnesses, is believed, or creates in the minds of the jury reasonable doubt as to the guilt of the accused in the matters libelled, the Crown case must fail and that they must acquit. Thus, for example, evidence given while acting in self-defence, as this is defined by law, is in no different position from any other evidence consistent with the innocence of the accused and ought to be considered by the jury in precisely the same way".

As Lambie makes clear, the only exception to this rule is the special defence of "insanity at the time". Of that, the court in Lambie said:

"[W]e ignore the special defence of insanity at the time since it is quite clear that there is in such a case an onus upon the defence to establish it since proof of insanity is required before the presumption of sanity can be displaced".

It is important to note what the presumption is. It is a presumption that the accused person is not insane in the sense in which that word has come to be understood (see for example H.M. Advocate v. Kidd 1960 JC 61, where in a passage which has been approved repeatedly since that time Lord Strachan explained what the special defence of insanity required). The presumption therefore is that an accused person is not insane. It is a presumption of fact only and, like any other presumption of fact, it can be rebutted by proof. Proof on a balance of probabilities is enough. If, by that standard, the defence prove that the accused was insane at the time of doing the acts libelled in the indictment and the person is acquitted for that reason the court must direct the jury to declare whether the person was acquitted by them on account of his insanity at that time. Where a jury has declared that a person has been acquitted by them on the ground of his insanity the court must order the person so acquitted to be detained in a state hospital or such other hospital as for special reasons the court may specify: sec. 174 (3) of the 1975 Act. It appears to me that in modern times the Scottish courts have consistently declined to recognise any new special defence; and it has hitherto appeared unlikely that the court would recognise any new special defence. In H.M. Advocate v. Cunningham 1963 J.C. 80 Lord Justice-General Clyde said, at p. 83:

"The categories of special defence are well known and have long been recognised in our law".

Even more convincingly perhaps, the full court in Lambie properly described the "special defence today" as "the vestigial survivor (my emphasis) in modern criminal practice of the written defences of our earlier criminal procedures". We should hesitate before adding an entirely new "survivor" to what has appeared to be a closed list. However like your Lordship in the chair, I accept that this point merits fuller debate, and I wish to reserve my opinion on it. Accordingly, subject to some later observations about the practicalities of the matter, I confine myself at this stage to formulating the general applicable conclusion derived from principle as follows: except in the case of insanity proper, there is no burden of proof upon the defence in a criminal trial, unless such a burden is imposed by special statutory provision.

The next relevant fundamental tenet is that the Crown must lead evidence to establish the essentials of the crime charged. Of course, at one level, the essentials of the crime depend upon the crime which is charged. The facts which have to be established in order to find a person guilty of theft are quite different facts from those necessary to support a charge of rape. But when we talk about the essentials of the crime of rape or of theft we are usually talking about the facts that are essential to constitute the actus reus. Only in special cases, such as murder, does an analysis of the necessary constituent elements come into our treatment of mens rea. However, at a different level of analysis, all crimes require proof of actus reus and of mens rea. I think the point is elementary but I might presume to repeat the example that I offered to the jury in H.M. Advocate v. Raiker 1989 S.C.C.R. 149 at p. 153, when trying to help them grasp the nature of mens rea:

"If, as I leave a restaurant, I walk up to the coats hanging on the pegs and I remove a coat belonging to somebody else and walk out into the street with it on, have I committed a theft? Well, I think you will realise you don't have enough information to answer that. If it is someone else's coat it begins to look like a theft but, of course, it may be that the coat that I have taken—although it in fact belongs to somebody else—is an exact replica of the one which I myself have hung on the adjacent hook; so it is a pure mistake. So, although I have done the act—I have taken someone else's coat and I intend to keep it—I do it in all innocence because I don't have the necessary mental intention.… In all crimes of this kind … the Crown has to prove beyond reasonable doubt not just the physical circumstances which give rise to the offence but the mental element. The mental element is an essential ingredient that determines whether the physical actings fall to be regarded by you as criminal or not."

This is just a special example of the more common one of the person who on leaving shop premises with open counters is accused of stealing goods which he has picked up and for which he has offered no payment as he passed the till. The defence that he had forgotten that he had picked up the goods is a perfectly valid defence in law. And on a proper analysis it is a good "defence" for one reason only, namely that he lacks mens rea. There is no onus upon him to prove his innocent state of mind; no legal onus shifts to him just because the circumstances would yield a possible inference of theft; the Crown has still to satisfy the court that the accused had mens rea. Similarly, even in the case of rape, a person may perform all the physical acts which point overwhelmingly to his being guilty of rape but he may lack the mens rea which is an essential element in the crime: D.P.P. v. Morgan [1976] AC 182 where it was held that when a defendant had had sexual intercourse with a woman without her consent, genuinely believing nevertheless that she did consent, he was not to be convicted of rape, even though the jury were satisfied that he had no reasonable grounds for so believing. The same rule applies in Scotland: Meek v. H.M. Advocate 1983 S.L.T. 280 where the Lord Justice-General (Lord Emslie), giving the opinion of the court, said:

"We have no difficulty in accepting that an essential element in the crime of rape is the absence of an honest belief that the woman is consenting. The criminal intent is, after all, to force intercourse upon a woman against her will and the answer to the certified question given by the majority of their Lordships in Morgan is one which readily accords with the law of Scotland."

I know of no exceptions, other than statutory ones, to the rule that the Crown must prove mens rea beyond reasonable doubt. Even in a case where the defence lodge a special defence of insanity at the time of the offence the Crown has still to lead evidence from which mens rea can be inferred or by means of which mens rea can be proved directly. If there were to be no such evidence at all the proper verdict even in such a case would be a simple verdict of "not guilty". It is only if there is evidence which would otherwise warrant a conclusion that mens rea had been proved beyond reasonable doubt that a jury would be entitled, if satisfied on a balance of probabilities that the special defence of insanity was made out, to acquit the accused on the ground of his insanity at the time of doing the (criminal) act. In this part of this opinion I have deliberately refrained from using the term "intention" and have preferred to use the technical term, mens rea. One reason for so doing is that there may be mens rea even although there is no intention; just as there may be intention and no mens rea. One case which well illustrates that actual intention is not necessary for proof of mens rea is Cawthorne v. H.M. Advocate 1968 JC 32 where the actual intention of the accused was considered not to be relevant in the sense that he was deemed to have intended the likely and predictable consequences of his acts. The same principle is at work in the case where A. throws a bottle at X. intending to injure him but hits Y. instead, towards whom he has no ill-will; he is nonetheless guilty of assaulting Y., and in relation to that assault has mens rea but no intention. The best ordinary example of an intention to perform acts which would normally be regarded as "criminal" being treated by the law as not yielding an inference of mens rea, despite the clearest evidence of intention, is the case of self-defence, in which the person pleading self-defence says, in effect, "Yes I did mean to use violence towards X., and I did indeed succeed in doing so". Despite that mens rea is absent. Accordingly "intention" is not a synonym for mens rea and it is possible to envisage circumstances in which to use it as if it were might lead to confusion. The general conclusion, therefore, is that, in all criminal cases (unless there are statutory exceptions) the Crown has to lay before the court evidence from which that court can hold it established beyond reasonable doubt that the accused person had mens rea at the material time.

How then is the Crown to discharge this burden? That is an everyday problem. The Crown discharges that burden by laying before the court evidence as to the behaviour of the accused person and as to the whole context in which he behaved. It might be possible, in a particular case, to add other evidence showing directly the accused's state of mind, being evidence of statements made by the accused person, whether before or after the event, which cast light directly upon his state of mind at the time when he acted. The behaviour itself at the material time might even include shouts or threats or words emanating from the accused person (res gestae) which make his state of mind, or his intention, crystal clear. These then are the normal ways in which mens rea is proved. It is either proved directly by leading evidence of what the accused person has said or it is proved indirectly as an inference from all the circumstances; quite commonly there is both direct and indirect evidence from which it may properly be said that his mens rea can be established. Mens rea is a subjective state of mind, as Morgan (supra) and Meek (supra) make clear but objective proof is commonly a most important element in establishing the state of the accused's mind. What is abundantly clear is that there is no presumption that an accused person had mens rea at the material time. In this respect there is therefore the clearest possible difference between the issue on which proof is required in the ordinary case and the issue on which proof is required in the insanity case, because in the insanity case there is a presumption that the accused person is not insane; as indicated earlier there is no presumption that he possesses mens rea. It therefore appears to me to follow from the most basic principles applicable to our criminal law that it is for the Crown to establish by evidence that the subjective state of the accused's mind at the material time could properly be described as mens rea. If the evidence establishes that, far from having mens rea, the accused person was in a state equivalent to temporary madness and that that state of mind and the temporary madness were caused by factors entirely unknown to him and outwith his control, then it would, in my opinion, be impossible to infer that that person had mens rea; and the prosecution ought to fail. In practical terms, of course, it is possible to foresee difficulties for the Crown if, without any notice having been given, such a defence were to be advanced at the trial. No doubt if there were to be evidence other than that of the accused himself notice might effectively be given by the lodging of a list of defence witnesses; but there cannot be any requirement in law to lead any evidence other than that of the accused himself, and one can conceive of circumstances in which that evidence alone might be persuasive and sufficient. In any event, it is easy enough to conceive of circumstances in which the defence advocate would obtain such evidence from Crown witnesses in cross-examination, and in so doing, "surprise" the Crown. Again, such a course of events would not be entirely unprecedented. Thus there may be good practical arguments for a rule to the effect that notice should be given of such a line of defence or indeed of other defences such as coercion or other versions of non-insane automatism. At the present time no such notice is required. In that respect, the accused is in no materially different position from the accused in Morgan or the accused in Meek. It is not necessary in a rape case for the accused to give advance notice that he intends to submit a defence to the effect that even although the woman did not consent, he, the accused, in fact believed that she was consenting. Similarly the person who on leaving the shop is accused of stealing goods for which he has not paid has no obligation to give notice of a line of defence to the effect that he had no mens rea and had simply acted absent-mindedly and made a mistake. Accordingly the court would not be sanctioning some dramatic new departure in criminal procedure and practice if it permitted such a "defence" to be advanced without notice. Of course the prosecutor does not need to anticipate every conceivable line of defence. His case will normally rest upon proof of the circumstances, including the behaviour of the accused person. If the line of defence which is advanced contains certain positive assertions about matters of fact not overtly covered by the indictment such as the assertion that at the material time the accused was acting under the influence of an intoxicant administered without his knowledge, then the prosecutor could make a motion under sec. 149A of the 1975 Act to lead additional evidence and could seek some adjournment or postponement of the trial in terms of sec. 149A (3). Accordingly, the conclusion which I derive from an examination of the fundamental principles is that there is nothing in our law to prevent an accused person advancing a defence to this effect that he lacked the necessary mens rea because he was acting wholly under the influence of an intoxicant administered to him without his knowledge, and that if no special notice is required before advancing such a defence the resulting situation would be entirely familiar in our procedure and would present familiar problems. Furthermore, it appears to me to follow inevitably from the application of elementary principles that there is no burden upon the accused to establish such a defence on the basis of a balance of probabilities. If by putting before the court evidence in support of such a line of defence he creates in the mind of the court a reasonable doubt as to whether or not the prosecutor has established mens rea then he is entitled to an acquittal.

I, therefore, turn to consider whether or not any of the authorities cited to us stand in the way of this court's accepting the conclusion which I think falls to be derived from principle. The leading contender for such a role is H.M. Advocate v. Cunningham . In that case, to which your Lordship in the chair has referred fully, the Lord Justice-General (Clyde) with the agreement of the other judges said:

"Any mental or pathological condition short of insanity—any question of diminished responsibility owing to any cause, which does not involve insanity—is relevant only to the question of mitigating circumstances and sentence."

I note three things about that observation. In the first place it is, in my opinion, obiter. All that the court needed to determine was whether or not the proposed special defence was the known special defence of insanity. The court held that it was not. Secondly in referring to "any mental or pathological condition short of insanity" it may well be that the Lord Justice-General was talking about some condition which was visited upon the accused by Providence and that he did not have in mind the different case (such as the present) where there is something akin to insanity caused by external factors such as the administration by someone else of an intoxicant without the accused's knowledge or consent. The policy of the law in relation to the criminal responsibility of persons who act under the influence of a continuing or recurrent mental or pathological condition short of insanity which derives from some disease or physical morbidity might have to be different. Thirdly, the judges in that court delivered their opinions without the benefit of having any of the authorities on automatism placed before them. In my opinion, therefore, Cunningham falls to be distinguished and presents no unsurmountable barrier to the conclusion which I reach. Similarly Brennan deals with a different type of case for reasons that I have sought to explain. Brennan, if I may respectfully say so, was an extremely careful judgment which did not stray beyond dealing with the particular kind of case there under consideration, the case of the criminal responsibility of a person who voluntarily and deliberately consumes known intoxicants for their intoxicating effects. Carmichael v. Boyle 1985 S.L.T. 399 applied Cunningham to the situation in which the accused acted in a state of hypoglycaemia, but it is plain from the full report of that case that the only issue which was argued related to the possibility of distinguishing that case from the type of case covered by the ratio in Cunningham. It is true that the Lord Justice-Clerk (Lord Wheatley) stated that Cunningham laid down a general principle namely (quoting Lord Justice-General Clyde):

"Any mental or pathological condition short of insanity—any question of diminished responsibility owing to any cause (the underlining is Lord Wheatley's) which does not involve insanity—is relevant only to the question of mitigating circumstances and sentence"

, but, in my opinion, that is a misreading of Cunningham in the sense that, in so far as that was "a principle laid down by the court in Cunningham", it was obiter. I do not regard any of the other cases quoted as authoritative on the matter in issue in the present case. Indeed it appears to me that Lord Murray in H.M. Advocate v. Ritchie 1926 JC 45 came very close to stating the law in terms which would now be seen to be correct where he stated:

"But where the defence is that a person, who would ordinarily be quite justified in driving a car, becomes—owing to a cause which he was not bound to foresee, and which was outwith his control—either gradually or suddenly not the master of his own action, a question as to his responsibility or irresponsibility for the consequences of his action arises, and may form the ground of a good special defence".

The only part of that which I might respectfully differ from is the suggestion that the defence would have to be advanced as a special defence. I have nothing to add to what your Lordship in the chair has said about McGregor v. H.M. Advocate (1973) S.C.C.R. Supp. 54. In H.M. Advocate v. Raiker, however, I do not consider that the directions I gave were inconsistent with the true ratio of Cunningham. In Raiker there was no special defence of insanity lodged, nobody mentioned the word "insanity", and there was no objection to the admissibility of any of the evidence about the administration of drugs to Skellet (the second accused) or about their effect.

I agree with the opinion of your Lordship in the chair although my own approach has been slightly different. I also agree with your Lordship in the chair that the trial judge in the present case misdirected the jury, that that misdirection resulted in a miscarriage of justice and that the proper course is to allow the appeal and quash the convictions.

LORD WEIR .—I agree with the opinion of your Lordship in the chair that this appeal should be allowed. Inasmuch as it was held in H.M. Advocate v. Cunningham 1963 J.C. 80 that any mental or pathological condition short of insanity is relevant only to the question of mitigating circumstances and sentence, that case, in my opinion, was wrongly decided for the reasons given by your Lordship.

In recognising the existence of a category of defence of the kind which we have been considering, it is important, in my view, to recognise the strict limits within which such a defence can be said to have validity. The necessary conditions are that at the time in question the accused must have been suffering from a total alienation of reason rendering him incapable of controlling or appreciating what he was doing, that such alienation was caused by an external factor, and that this factor was neither self-induced nor one which he was bound to foresee. Anything short of this will not suffice and in the absence of evidence from which the necessary conclusion can be drawn it will be for the judge to direct the jury that such a defence is not open for consideration by them.

Since your Lordships are of opinion that the onus of proving guilt remains on the Crown throughout (with which conclusion I concur) the desirability of giving notice of this kind of defence is a question of some importance. Circumstances giving rise to such a defence are bound to be unusual. Since the state of mind of the accused is at the heart of the issue, it is to be expected that medical and possibly other scientific evidence will be required just as it is in a case where the defence of insanity is raised. In my opinion it is undesirable for this line of defence to be advanced at a trial without proper warning to the Crown. Experience shows that judicial examination can prove an imperfect safeguard against surprise. Moreover it is a thoroughly unsatisfactory manner of proceeding if the Crown has to lead evidence in replication, or has to seek to have the trial adjourned for further consideration of matters of which there was no notice. As a matter of fairness it seems to me there is much to be said for requiring the accused to state this particular line of defence in the form of a special defence, but since it was not argued in this appeal I am not inclined to reach a concluded opinion upon this question.

LORD BRAND .—I agree with the opinion of your Lordship in the chair. I agree, in particular, with your Lordship's statement that:

"A verdict of acquittal would be an appropriate verdict if the jury are not satisfied beyond reasonable doubt as to the accused's ability to form the intention to commit the crime with which he is charged".

In my opinion the defence of automatism is, in principle, the same as the defence of accident. In both cases the failure of the prosecution is due to the absence of mens rea. It follows that in neither case is a special defence necessary. It has always been accepted that, if the tribunal of fact was not satisfied that what was prima facie a criminal act was intended, the prosecution must fail and the accused be acquitted. The issue of accident, although sometimes coupled with a special defence of self-defence, has never been regarded as a special defence per se. As the onus is on the Crown to prove mens rea, there can be no onus on the defence to prove the absence of it from whatever cause apart from insanity.

On the whole matter I agree with your Lordship that the conviction on all charges should be quashed.