Scottish High Court of Justiciary Decisons

KIM LOUISE SCARSBROOK or GALBRAITH v. HER MAJESTY'S ADVOCATE [2001] ScotHC 37 (7th June, 2001)

[1] In June 1999 the appellant, Kim Louise Scarsbrook or Galbraith, was convicted at the High Court at Glasgow of murdering her husband, Ian Quintin Galbraith. She admitted killing him but contended that she had been suffering from diminished responsibility at the time and that she should be convicted of culpable homicide only. By a majority the jury rejected that contention.

[2] The appellant appealed against her conviction and the Note of Appeal contains three grounds. At her trial, which lasted three weeks, the appellant was defended by Mr. Findlay, Q.C. who was at the time an office-holder in Rangers Football Club. Over the final weekend of the trial Mr. Findlay attended a Rangers social event at which he was recorded singing sectarian songs and making certain sectarian remarks. This led to considerable publicity in the press and in the broadcast media during the final week of the appellant's trial. The first ground of appeal, as presented to us, is to the effect that in these circumstances the appellant cannot be seen to have had a fair trial, since members of the jury would have been aware of the sectarian singing and remarks by her counsel and might well have been hostile to him on that account. This could, in turn, have resulted in the jurors being prejudiced against her. In the circumstances the directions given by the trial judge had not been adequate to counteract that potential prejudice. Miss Scott, who appeared for the appellant at the hearing of the appeal, accepted that, if the appellant succeeded on that ground of appeal, the Crown would ask for authority to bring a fresh prosecution and that the court could properly grant that authority. The second ground of appeal is to the effect that, on the available evidence, no reasonable jury, properly directed, would have rejected her defence of diminished responsibility. In advancing her submissions in support of this ground Miss Scott proceeded on the basis that the court would really require to consider the second ground along with the appellant's third ground, which is to the effect that the trial judge misdirected the jury when he told them that they would have to find that the appellant was suffering from "some form of mental disease".

[3] We heard full submissions for both the appellant and the Crown on the first ground of appeal and full submissions from Miss Scott on her second and third grounds of appeal. Her submissions on the third ground satisfied us that we should send the appeal for hearing by a court of Five Judges to consider certain of the authorities on diminished responsibility. The Advocate Depute recognised that, if so advised, the court could dispose of the appeal by allowing it on the first ground and saying nothing about the remaining grounds of appeal. He was concerned that, if we were to do that, at that subsequent trial many of the same issues relating to diminished responsibility would be likely to arise. If the trial judge were to give directions similar to those given by Lord Osborne at the trial in 1999, this might lead to a further appeal. It would therefore be preferable for the court to reach a view on the third ground of appeal in the hope that this would minimise the risk of any challenge to the directions on diminished responsibility at the retrial. In these circumstances, we have decided that it would indeed be preferable to say nothing about the first ground of appeal at this stage. Depending on what the larger court decides on the second and third grounds of appeal, it may or may not be necessary for that court to consider the first ground.

[4] We are also satisfied that, in the proceedings before the larger court, the appropriate starting point should be the third ground of appeal. The second ground of appeal requires the court to consider whether a reasonable jury, properly directed, could have convicted the appellant of murder rather than of culpable homicide. That ground presupposes that the court can say what the proper directions to the jury on the matter of diminished responsibility would have been in this case. The third ground is concerned, precisely, with the nature of the directions which the trial judge should have given to the jury on that matter. It is therefore impossible to deal with the second ground before dealing with the third ground.

[5] Since the hearing before the larger court is to take place in the very near future, it is neither necessary nor desirable for us to say much at this stage except for the purpose of recording some of the issues which led to us deciding to send the case for such a hearing. Miss Scott really advanced two basic contentions, both centring on the directions given by the Lord Justice Clerk in H. M. Advocate v. Savage 1923 JC 49 at pp. 50 - 51:

Miss Scott submitted that, if one looked at the cases which preceded Savage, it was not correct to say that they all imply that, for an accused's responsibility to be diminished, there must be a form of mental disease. It was to be noted, indeed, that Lord Stormonth Darling had actually referred to "brain disease". It was clear from some of the cases that there could, for instance, be "weakness of mind" in the form of what we should now call mental handicap. This would not properly be described as a "disease" and could, for instance, be identified by tests carried out by psychologists. If there were evidence from psychologists showing that an accused was mentally handicapped, then, according to the earlier cases, a jury could properly find that his responsibility was diminished. Since it was not necessary that the jury should be satisfied that there was some form of mental disease, the trial judge had misdirected the jury when he said that this was an essential ingredient.

[6] In Connelly v. H. M. Advocate 1990 J.C. 349 at p. 358 the Lord Justice General said that, in a case where an issue of diminished responsibility arose, the question for the medical witness would be

This appears to be intended as a fuller statement of the requirement that there should be "some form of mental disease". Miss Scott submitted that the scope of that restatement had, however, given rise to some debate. The term "mental disorder" is used in the Mental Health (Scotland) Act 1984. It was not clear whether Lord Hope had intended to use it in this sense. If he had, while the definition would be broad enough to cover mental handicap (see Section 1(2)), it had now been specifically amended to include "personality disorder" (Mental Health (Public Safety and Appeals)(Scotland) Act 1999). On this approach, there would be something in the mental condition of persons suffering from personality disorder, often referred to as a psychopathic personality disorder, which could be properly regarded as a "mental disorder" and so would fall within the Connelly formula. But, as was shown by Carraher v. H. M. Advocate 1946 J.C. 108, for example, the law had always set its face against the idea that such persons could be regarded as having diminished responsibility for their actings.

[7] In the light of these submissions it appeared to us that it was necessary, for the disposal of the appeal, to consider whether Lord Alness had been correct to say that there had to be something in the form of mental disease and, if so, what the nature of that requirement was and how it should be stated today.

[8] Miss Scott further submitted that it was clear from the language used by the Lord Justice Clerk in Savage that, when he described the conditions which could give rise to diminished responsibility, he was simply giving a series of illustrations of the descriptions which judges in earlier cases had put to juries. They were alternatives and, provided that an accused fell within one of the descriptions and the jury were satisfied that his responsibility was in fact impaired, that was enough. The court had therefore been wrong in Connelly to hold that "the passage required to be read as a whole with all its elements" (1990 J.C. at p. 358 per the Lord Justice General). It followed that the trial judge had therefore been wrong in the present case to direct the jury that they should apply the test in that way. The Advocate Depute submitted on the other hand that Connelly should not be interpreted as requiring that every single part of the Savage test should be met in every case. Two things only were essential: that the accused's responsibility should have been diminished and that this should have been due to mental illness. For the rest, in reaching a decision as to whether the accused's responsibility was diminished, the jury required to take the other factors together and read them as a whole and in their entirety.

[9] Again, it appeared to us in the light of the submissions of both parties that there is a substantial issue to be resolved as to the proper interpretation of the crucial passage in Savage and, indeed, as to the proper interpretation of the gloss on it in Connelly. That issue should be considered by a larger court.

[10] One of the most significant aspects of the passage in Savage is the part where the Lord Justice Clerk says that "there must be a state of mind which is bordering on, though not amounting to, insanity". It gives rise to at least three possible issues for consideration.

[11] First, it is entirely understandable that a jury should be given a direction in these terms in a case where there is a special defence that the accused had been insane at the time of the offence. In such a case, the judge might well direct the jury that, if they did not find that the accused had been insane, they should nevertheless consider whether his state of mind had bordered on insanity. If they concluded that it had, then they could hold that his responsibility for his actings had been diminished. In a case like that, where ex hypothesi the jury would already have been given directions on the legal concept of insanity, the direction on diminished responsibility would be comprehensible. In a case - such as the present - where the jury were given no such directions on insanity, it might be thought that the jury would not readily understand the legal test which they had to apply. If they were not told when a person would be insane in law, how could they decide whether the accused's state of mind bordered on insanity?

[12] Secondly, if, as Connelly suggests, the passage in Savage needs to be read with all its elements, then the requirement that the accused's state of mind should border on insanity must be one of the elements which the jury have to consider. The Advocate Depute appeared to argue that, while the jury would have to consider and weigh the element, it would somehow simply be thrown into the mix and might not in itself be decisive. It was not entirely clear to us how he saw the jury approaching this part of their task and, in itself, that was a matter of some concern. Miss Scott also submitted that there could well be states, such as severe clinical depression, which would not readily be thought of as bordering on insanity, but which might none the less, perhaps, be states which would impair the accused's responsibility. For this reason, when applying the statutory provisions on diminished responsibility, the Privy Council and the English courts had held that a direction that the state of mind had to border on insanity was not always appropriate and could indeed constitute a misdirection: Rose v. The Queen (1961) 45 Cr App R 102; R. v. Seers (1984) 79 Cr. App. R. 261.

[13] Finally, the requirement that the accused's state of mind should border on insanity seems to have given rise to a belief among certain medical practitioners and lawyers that an accused's responsibility cannot be diminished in law unless he is someone who could have been compulsorily detained in terms of Section 17 of the Mental Health Act. The trial Advocate Depute's cross-examination of the defence psychiatrist, Dr. White, appears to have proceeded on that basis. The trial judge directed the jury that the Mental Health Act criteria were irrelevant to the issue which they had to decide and the Advocate Depute in the hearing before us did not suggest that he had been wrong to do so. It is, however, unsatisfactory if there is indeed abroad a misunderstanding of the law derived from this part of the passage in Savage.

[14] Again, these appear to us to be important issues which should be examined by a larger court. In identifying these issues and the others which emerged in the course of the hearing, we are merely highlighting some of the submissions made to us. Other issues may come to the fore at the hearing before the larger court which will, of course, be at liberty to deal with them.