Scottish High Court of Justiciary Decisons

BRIAN ANDREW HUGHES v. HER MAJESTY'S ADVOCATE [2001] ScotHC 16 (11th April, 2001)

[1] The appellant is Brian Andrew Hughes who has been indicted in the Sheriff Court at Glasgow on a charge of causing death by dangerous driving contrary to Section 1 of the Road Traffic Act 1988 as amended. The charge arises out of an incident on 2 January 1999 in which the appellant himself was badly injured. As a result he suffers from amnesia in respect of the actual episode and in respect of periods before and after the episode.

[2] At a continued first diet hearing in the Sheriff Court Mr. Macleod, who appeared for the appellant, sought to advance a plea in bar of trial based on the appellant's amnesia. The Sheriff repelled the plea and the appellant has appealed to this court under Section 62(1)(a) of the Criminal Procedure (Scotland) Act 1995, which makes provision for an appeal against a refusal to make a finding under Section 54(1) that the appellant is insane. A finding of insanity in terms of Section 54(1) can be made only on the written or oral evidence of two medical practitioners.

[3] The Sheriff had before him two reports from medical practitioners, one from Dr. Suddle and one from Dr. Ramsay, both of the Douglas Inch Clinic. It is unnecessary to consider their terms in detail since, for present purposes, there are only two matters of significance. First, both say that the appellant is sane and fit to plead. Secondly, as we have already indicated, they both show that the appellant is suffering from amnesia which makes it impossible for him to recall the events surrounding the accident. Before this court, Mr. Macleod argued on behalf of the appellant that, since the appellant was unable to remember what had happened, he would be unable to give his agents and counsel proper instructions as to his defence to the charge. He submitted that, in terms of the charge to the jury of Lord Wark in Wilson v. H. M. Advocate 1942 J.C. 75, which had been approved by this court in McLachlan v. H. M. Advocate 1997 J.C. 222, a person affected in this manner by amnesia was "insane" for the purposes of Section 54 of the 1995 Act.

[4] In Wilson the accused was deaf and dumb and not of normal intellect. Lord Wark pointed out to the jury that the accused's reason was not alienated and that he was not insane in that sense. But, said Lord Wark (1942 J.C. at p. 79),

In Stewart v. H. M. Advocate 1997 J.C. 183, which involved an accused who was suffering from a mental handicap, the court held that the term "insane" in Section 54 of the 1995 Act had also to be interpreted in this extended fashion. In McLachlan, where the question again related to mental handicap, the court followed the decision in Stewart. And we, of course, accept that construction in this case. Mr. Macleod submitted that, applying the approach of Lord Wark - which was given prominence in paragraph 26-05 of Renton and Brown's Criminal Procedure (sixth edition) - we should hold that, since the appellant's amnesia meant that he could not give his representatives instructions about the circumstances of the offence, he was "insane" for the purposes of Section 54(1).

[5] We reject that submission which, as Mr. Macleod acknowledged, flies in the face of the decision in Russell v. H. M. Advocate 1946 J.C. 37. In that case the appellant was charged with a series of frauds extending over a period of years. She claimed that she suffered from hysterical amnesia and was, on that account, unable to plead to the libel or to give instructions for her defence. The court held that, even if the amnesia were established, it would not afford any plea in bar of trial. Giving the opinion of the court, Lord Justice Clerk Cooper commented (1946 J.C. at pp. 46 - 47):

Lord Cooper then went on to deal with a passage from the charge of Lord Justice General Dunedin in H. M. Advocate v. Brown (1907) 5 Adam 312 at p. 344, where he had said that no person could be tried who could not only intelligently but "without obliteration of memory as to what has happened in his life, give a true history of the circumstances of his life at the time the supposed crime was committed" or who cannot "tell his counsel, with the certainty of not being deceived, what he was really doing at the time" (5 Adam at p. 346). Lord Cooper said of these comments (1946 J.C. at p. 47):

We have no hesitation in endorsing what Lord Cooper says - which is, with respect, merely consummate common sense. He went on to hold that the trial judge had been right not to sustain the plea in bar of trial and that the appeal fell to be refused.

[6] We note that the decision in Russell was applied by the Court of Criminal Appeal in the dramatic circumstances of R. v. Podola [1960] 1 Q.B. 325. Despite this, Mr. Macleod submitted that Russell was not widely known among practitioners in our courts and that its relationship with the earlier decision in Wilson could, with advantage, be clarified. We need simply say that, so far as amnesia is concerned, the law was clearly established by the court in Russell. In coming to its decision in that case, the court considered the decision in Wilson which dealt with a wholly different situation. Similarly, the circumstances in the more recent cases of Stewart or McLachlan are easily distinguished and nothing said by the court in them trenches in any way on the decision in Russell. In a case like the present, the appellant is well able to understand the proceedings against him and to give rational and comprehensible instructions to his representatives, even though part of his instructions will doubtless be to the effect that he cannot recall the events surrounding the alleged offence. His inability to remember what happened does not prevent the defence from testing the Crown case or, if so advised, from leading any other witnesses who may exist to speak to the events in question. Where - as happens quite frequently - an accused cannot remember the events in question, he can none the less have a fair trial, even though it may, necessarily, be conducted somewhat differently from a trial in which the accused can remember all the relevant events. No question of the appellant's trial being barred can therefore arise.

[7] For these reasons the learned Sheriff was correct to repel the appellant's plea in bar of trial and the appeal must be refused.