Scottish High Court of Justiciary Decisons

GRAHAM TERRENCE FINEGAN v. PROCURATOR FISCAL, DUNDEE [2000] ScotHC 46 (7th April, 2000)

[1] The appellant, Graham Terrence Finegan, was convicted at Dundee Sheriff Court of three charges: driving a motor vehicle after consuming so much alcohol that the proportion of it in his breath exceeded the prescribed limit, contrary to Section 5(1)(a) of the Road Traffic Act 1988; secondly, taking and driving away a motor vehicle without the owner's consent, and finally, using a motor car without there being a relevant policy of insurance in force, contrary to Section 143(1) and (2). He was fined £100 on charge 1 and admonished on charges 3 and 4. On charge 1 the court also disqualified the appellant from holding and obtaining a driving licence for a period of twelve months. He has appealed against the convictions and the disqualification.

[2] The facts on which we have to proceed in this unusual case are those found by the Sheriff and stated in the case. The appellant has been prone to sleepwalking (parasomnia) since he was a teenager. For some months before May 1997 he had been suffering from stress, much of it related to worries about the impending birth of a child. In due course his wife had a son and, on 23 May 1997, the appellant and two friends, one of them a Mr. Gregor White, went out to celebrate. Before going out, Mr. White, who had arranged to stay overnight at the appellant's home, left a Mercedes Benz car, belonging to his employers, outside the appellant's house. The appellant and his friends visited various licensed premises in and around Dundee where the appellant consumed not less than six pints of beer. During the course of the evening the appellant became separated from his friends who returned to the appellant's home, went to bed and went to sleep. Mr. White slept in a bed in the appellant's bedroom and the keys to the Mercedes Benz were on a dressing table in that room. The appellant returned home at about 1 a.m. and, having sat down to watch television in the living-room, fell asleep. While in a parasomniac state, the appellant went to his bedroom, took the car keys from the dressing table and drove the Mercedes Benz some 1.5 miles to Strathmore Street, where police officers found it sitting in the roadway with its front at an angle of 45 degrees to the kerb. The engine was running and the appellant was asleep in the driver's seat. The police officers had difficulty in waking him and, when they managed to do so, he tried to put the automatic gearbox into the drive position. The car moved a very short distance, whereupon the officers ordered the appellant to stop the car. He did so, opened the door and came out of the car. He spoke incoherently to the officers who could make no sense of what he was saying other than that he was constantly repeating a postcode. They believed that he was very drunk. The appellant co-operated with the officers' request to provide a breath sample, which proved positive. He was arrested and taken to police headquarters. On arriving there he spoke intelligibly to the police officers and told them who owned the car and where the person with authority to use it was to be found. The officers found the keys to the car among the items of the appellant's property. The appellant provided two specimens of breath for testing by the Camic device. The lower reading showed that the proportion of alcohol in his breath was 79 microgrammes in 100 millilitres of breath.

[3] On the basis of expert evidence led on behalf of the appellant, the Sheriff found that stress can promote instances of parasomnia. He also found that consumption of alcohol is often associated with parasomniac episodes, because alcohol can induce deep sleep in which such episodes take place. They are therefore more likely to occur after the consumption of alcohol. The disinhibiting effect of alcohol also increases the likelihood of persons who are prone to parasomnia being put into such a state. The appellant was aware that at least three of his recent experiences of parasomnia had been preceded by the consumption of amounts of alcohol similar to the quantity which he took on the evening in question. The Sheriff's overall conclusion was that "The alcohol consumed by the appellant on 23 May had induced the parasomniac state in which he was when he took the car key and [which] persisted throughout that time until the car came to a halt at the kerbside."

[4] The sleepwalker is a familiar figure in romance and literature, including the literature of the law. He features somewhat less often in actual decisions of the courts, although one of the most famous examples is, of course, the nineteenth-century Scottish case of Simon Fraser (1878) 4 Coup. 70. But, as Lord Justice General Hope pointed out in Ross v. H. M. Advocate 1991 JC 210 at p. 217, that case cannot be regarded as anything other than very special in view of the manner in which the court interpreted the jury's verdict. In advancing his submissions on behalf of the appellant in the present case, therefore, Mr. Shead did not suggest that the court could derive much guidance from the approach of Lord Justice Clerk in Simon Fraser.

[5] Mr. Shead's argument can be summarised in this way. It is a basic principle of criminal law that only those who act voluntarily should be punished. A person who is in a state of somnambulism is unconscious and so his actions are not voluntary. In the present case, therefore, at the relevant time, the appellant was not "driving" the car since his conscious mind was not controlling his actions. There was no evidence before the Sheriff which would justify the view that somnambulism was a disease of the mind. The appellant should therefore be acquitted on the ground of non-insane automatism. In formulating his submissions Mr. Shead relied extensively on the wide-ranging survey of the authorities in R. v. Parkes [1992] 2 S.C.R. 871. In that case the Canadian Supreme Court was concerned, above all, to decide whether the appellant's sleepwalking should be regarded as giving rise to a defence of insane, rather than of non-insane, automatism. That is not an issue which we find it necessary to explore in this case.

[6] In Bratty v. Attorney-General for Northern Ireland [1963] AC 386 at p. 409 Lord Denning observed obiter:

He went on to say that the point had been well put by Stephen J. in R. v. Tolson (1889) 23 QBD 168 at p. 187:

In that passage his Lordship was giving judicial expression to the earlier extrajudicial observation of Sir James Fitzjames Stephen in his History of the Criminal Law of England Volume 2 (1883), p. 100:

Mr. Shead readily acknowledged that the words of Stephen J. in Tolson encapsulated his submission in this case.

[7] We accept that, on the facts found by the Sheriff, when the appellant took the car and drove it while drunk, his normal conscious mind was not controlling his actions. In that sense his actions were "involuntary". We also accept that, if these were the only relevant facts, for the reasons given by Stephen J. and Lord Denning, the appellant could not properly be held criminally responsible for his actions while he was in this transitory state of parasomnia.

[8] Mr. Shead argued indeed that these were the only relevant facts since sleepwalking constituted a unique category in our law: once it was established that an accused had been in a state of parasomnia at the relevant time, there was no need to enquire further into the antecedents of his condition because the only proper conclusion was that he should be acquitted. We see no reason in principle, however, why in the case of parasomnia the court should necessarily disregard the surrounding circumstances and, in particular, any circumstances which explain why the accused was in the state of parasomnia on the occasion in question. If those circumstances could be legally relevant, they should be considered - and we see no a priori reason why such circumstances could not indeed be of relevance.

[9] In the present case the Sheriff found that the alcohol consumed by the appellant induced the parasomniac state in which he took the keys and drove the car. In addition, the Sheriff found that the appellant had been aware that at least three of his recent experiences of the condition had been preceded by his consuming approximately the same amount of alcohol as he consumed on the occasion in question.

[10] In our law these factors have to be considered in the light of the approach to intoxicants adopted by the Full Bench in Brennan v. H. M. Advocate 1977 JC 38. In that case, which concerned the law of insanity and diminished responsibility, the court said of insanity (1977 J.C. at pp. 42 - 43) that its meaning is

Approaching the matter in that way and having reviewed the relevant authorities, the court held (1977 J.C. at p. 46):

Although their Lordships were not, of course, thinking of the situation where the voluntary consumption of alcohol for its intoxicating effect induced a transitory state of parasomnia, we consider that the same approach should be applied in such a case. If insanity in our law "does not comprehend the malfunctioning of the mind of transitory effect, as the result of deliberate and self-induced intoxication" and if the defence of diminished responsibility cannot be "established upon mere proof of the transitory effects upon the mind of self-induced intoxication" (1977 J.C. at pp. 45 - 46), then, equally, the defence of automatism cannot in our view be established upon proof that the appellant was in a transitory state of parasomnia which was the result of, and indeed induced by, deliberate and self-induced intoxication. In that regard the decision on automatism in Ross v. H. M. Advocate is distinguishable since it dealt only with those cases where there was no disease of the mind "and where the factor which had caused the impairment was not self-induced" (1991 J. C. at p. 213 per the Lord Justice General).

[11] Applying our conclusion on the law to the facts of the present case, we hold that, since the appellant's consumption of alcohol induced the parasomniac state in which he took the keys and drove the car, the Sheriff was correct to reject the appellant's defence and to convict him of the three charges. The appeal against conviction must therefore be refused.

[12] Having convicted the appellant of the three offences, including the contravention of Section 5(1)(a) of the Road Traffic Act, the Sheriff went on to disqualify him from holding a driving licence for twelve months. A conviction under Section 5(1)(a) involves obligatory disqualification unless the court for special reasons thinks fit to order the offender to be disqualified for a shorter period or not to order him to be disqualified (Road Traffic Offenders Act 1988, Section 34(1)). Those special reasons must relate to the offence rather than to the offender. While expressing sympathy for the appellant, the Sheriff rejected the argument that there were special reasons for not disqualifying in this case. In reaching that conclusion he took into account the fact that the appellant had induced his parasomniac condition by taking alcohol in the first place. That is, of course, correct - indeed, it was only because his drinking induced the condition that he was convicted. On the other hand, as the Sheriff recognised, by the very nature of the condition, disqualification, even though duly observed by the appellant in his normal conscious state, would not in itself prevent the appellant from driving in a parasomniac state in future. In our view, as Mr. Shead submitted, if the circumstances of the present offence do not amount to special reasons for not disqualifying, it is hard indeed to imagine what such reasons might be. We shall accordingly allow the appellant's appeal against sentence, quash the period of disqualification and order that six penalty points should be endorsed on his licence.