BRATTY
v.
ATTORNEY-GENERAL FOR NORTHERN IRELAND
3rd October, 1961
The Lord Chancellor
my lords.
Lord
Chancellor
Lord
Tucker
Lord
Denning
Lord
Morris of
Borth-y-
Gest
Lord
Hodson
This is an appeal from the Court of Criminal Appeal in Northern Ireland,
the judgment having been delivered by Lord MacDermott, L.C.J. On the
4th May, 1961, the Petitioner was convicted at the Downpatrick Assizes of
the murder of Josephine Fitzsimmons on the 22nd December, 1960. The
Petitioner appealed to the Court of Criminal Appeal and by Order dated 18th
July, 1961, his appeal was dismissed. On the 27th July, 1961, counsel on
behalf of the Petitioner applied, pursuant to the provisions of subsections (1)
and (2) of section 1 and subsection (1) of section 2 of the Administration
of Justice Act, 1960, for a certificate that a point of law of general public
importance was involved in the decision of the Court of Criminal Appeal,
and for leave to appeal to the House of Lords. The Court certified that the
decision involved two points of law of general public importance, namely:
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Whether, his plea of insanity having been rejected by the jury,
it was open to the accused to rely upon a defence of automatism:
and -
If the answer to (1) be in the affirmative, whether, on the evidence,
the defence of automatism should have been left to the jury.
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Further it appeared to the Court that the points of law so certified ought
to be considered by the House of Lords, and the Court granted leave to
appeal to this House.
Josephine Fitzsimmons, who was eighteen years old, lived with her
widowed mother near Hillsborough in the Monument Road—a road which
has been described as lonely and quiet. Her mother had a cousin, Miss
Morrow, who resided with her brother at 44 Irwin Place, Donacloney, a
village six or seven miles from Hillsborough. With them there lived the Peti-
tioner, George Bratty, a young man of about twenty-six. He had been living
with the Morrows for about twenty years. On the 22nd December, 1960, the
Petitioner asked Miss Morrow if she would come with him in the car to visit
the Fitzsimmons in order to deliver Christmas boxes for Mrs. Fitzsimmons
and Josephine. The families were in the habit of seeing each other regularly
and often. He had a black Ford Popular car in which he and Miss Morrow
left Donacloney about 8.20 p.m. and arrived at Mrs. Fitzsimmons’ house
about 8.40. Miss Morrow went into the house and after the Petitioner had
turned the car and got out Josephine came out and asked him to drive her
into Hillsborough to deliver a message and get some sweets. She was seen
in Hillsborough but neither she nor the Petitioner reached her home again.
At 11.15 p.m. her dead body was found in Grove Road on the grass verge.
She had been strangled by a stocking from her left leg. She had not been
sexually assaulted but her underpants had been removed and were found
with her left boot a short distance from the body on the grass verge. The
Petitioner did not call back to take Miss Morrow home, but drove his
car in the direction of Donacloney. When some two or three miles from
Donacloney the car broke down and was left at the side of the road, an
offer of a tow having been refused. He arrived at Donacloney on foot
about 4 a.m. He was found by the police nearly an hour later in a garage
at the bottom of the Morrows’ garden and taken to the Police Station.
Shortly after 1 p.m. on the 23rd December the Petitioner was seen by
Detective Head Constable Russell, Dr. Howard of the Forensic Science
Laboratory being present. Russell asked what was the cause of two scratches
2
on his neck. The Petitioner said: ” It was a young girl did it.” He was
then cautioned and made the following statement: —
” Something terrible came over me. When I went up last night to
” the young girl’s house—turned the car. I had the engine stopped
” and got out of her. I noticed her coming running out. She asked
” me to take her down to Hillsborough to get some sweets and deliver
” a message. I done so. and coming back again, just about halfways
” up the road from her house, I had some terrible feeling, and then a
” sort of a blackness. Just with that, I took one look at her, caught
” her, threw her right over the back of the seat into the back. I caught
” her with my two hands. When I caught her with my two hands
” I took one of her stockings and put it round her neck. I tightened
” the stocking. Afterwards I went down the road a piece—down the
” road to the left of her house—took her out of the car, and left
” her on the side of the road ; drove on towards home. Halfways
” down the Ballygowan Road, the battery gave up on me. I got help
” later on to try and get her started. Couldn’t get her started. Then
” we pushed her into side of a field gateway. I walked home after-
” wards. I saw a policeman. I went into the garage, and the police
” came. I didn’t mean to do what really happened. Many’s the time I
” took her down to Hillsborough at week-ends, and nothing like that
” happened until last night. I apologise for what happened.
” I don’t think it would have happened only that terrible feeling came
” over me at the time. I don’t know really what caused it at all.
” I think that’s about all I can say.”
In evidence the Petitioner later described the terrible feeling that came
over him as a feeling that he wanted to put his arms round the girl.
Without setting out any further evidence in detail, but having in mind
particularly this description of the ” terrible feeling”. the scratches on
the Petitioner’s neck, and the removal of the underpants, I agree with the
Court of Criminal Appeal when they say—
” That the Appellant killed Miss Fitzsimmons is not in dispute. On
” the evidence there can be no doubt at all that he made some sort
” of advance which was resisted, and that he attacked the girl, breaking
” a small bone in her neck and then caused her death by taking off
” one of her stockings and tying it tightly round her neck. It is also
” beyond question that, at some stage, the Appellant got the girl from
” the front passenger seat to the back of the car, and that it was he
” who removed the body from the car and dumped it on the grass
” verge.”
In the opening speech for the defence at the trial the jury were asked
to rind “one of three separate and completely independent verdicts”—
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The primary verdict requested which it was submitted was the
proper one was that of Not Guilty on the basis that the Petitioner
” was not master of the situation but that he was in a state of automa-
” tism “. (The only cause suggested for his being in such a state was
psychomotor epilepsy.) -
Secondly, if the jury rejected the first defence, then it was sub-
mitted that the Petitioner was incapable of forming the particular
intent to constitute murder, that is, an intent to kill or cause grievous
bodily harm, on the ground that ” his mental condition was so impaired
” and confused and he was so deficient in reason that he was not capable
” of forming this intent”, and that the verdict should be manslaughter.
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(3) Thirdly, it was submitted that, if the jury were unable to come to
either the first or second verdict, ” at the material time the accused may
” be guilty but he was insane ” on the ground that he did not know the
nature and quality of his acts, or if he did, that he did not know that
they were wrong.
On the first and second of these submissions it was claimed that the Petitioner
should get the benefit of any doubt, the implication being that the Crown
must prove that the acts of the Petitioner were conscious and voluntary acts.
3
The learned trial judge left the defence of insanity to the jury. The
insanity alleged was that the Petitioner was suffering from an attack of
psychomotor epilepsy and as a result had such a defect of reason as not to
know the nature and quality of his acts or, if he did, not to know that they
were wrong. As respects that defence the Court of Criminal Appeal said—
” There is now no complaint of the summing up as respects this
” defence, and it is no longer disputed that, on the material before them,
” the jury were fully entitled to reject it as in fact they did.”
The learned judge refused to leave the first and second defences to the
jury and it was from this refusal that the main grounds of the appeal to the
Court of Criminal Appeal and ultimately to this House arise.
In his notice of appeal to the Court of Criminal Appeal the Petitioner’s
first ground was stated in these words—
” The learned trial judge was wrong in law in failing to leave to the
” jury the issue as to whether the killing was committed by the Appel-
” lant in a state of automatism and whether his actions resulting in the
” said killing were voluntary or conscious.”
Automatism was defined by the Court of Criminal Appeal in this
case ” as connoting the state of a person who, though capable of action,
” is not conscious of what he is doing … It means unconscious
” involuntary action, and it is a defence because the mind does not go
” with what is being done.”
This is very like the words of the learned President of the Court of Appeal
of New Zealand in R. v. Cottle ([1958] N.Z.L.R. 999 at p. 1020) when he
said—
” With respect, I would myself prefer to explain automatism simply
” as action without any knowledge of acting, or action without any
” consciousness of what is being done.”
The first portion of the argument before them that ” automatism ” should
have been left to the jury was summarised by the Court of Criminal Appeal
as being that the whole of the evidence on the issue of insanity was relevant
on the issue whether automatism itself existed however it was caused ; in view
of the onus being on the defence to show on a preponderance of probability
that the necessary constituents of the M’Naghten formula were present, it
was therefore submitted that, although the evidence might have failed to
prove some constituent of insanity, the lack of consciousness itself might
have seemed a genuine possibility to the jury, and the jury might at least
have had a reasonable doubt as to whether the Appellant was conscious
of his acts so as to be guilty of murder.
Before your Lordships the argument was advanced in this way—
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The ultimate burden on the Crown is to prove that the crime was
a conscious and voluntary act. -
There was a volume of evidence showing that the act was not
conscious and voluntary. -
The jury should be told to examine this evidence with a view to
answering the following questions : —
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A. Are you satisfied that the acts resulting in the death were
involuntary or unconscious conduct?
B. If this is so you must go on to consider whether this was
due to a defect of reason from disease of the mind of such a
kind that the defendant did not know the* nature and quality of
his act, in which case the form of acquittal would be guilty of
the acts charged but insane at the time.
C. If you are satisfied that the acts were not conscious and
voluntary but not satisfied that they are due to a defect of reason
from disease of the mind, then the verdict should be not guilty
4
because the prosecution have failed to satisfy you that the acts
were conscious and voluntary.
D. If you are left in doubt as to whether the acts were conscious
or voluntary then, if the acts were not within the M’Naghten Rules,
the proper verdict would still be not guilty.
The Court of Criminal Appeal rejected that ” first portion of the argu-
” ment” on the ground that the learned judge was right in not leaving to
the jury the defence of automatism in so far as it purported to be founded
on a defect of reason from disease of the mind within the M’Naghten Rules.
In this I think that they were right. To establish the defence of insanity
within the M’Naghten Rules the accused must prove on the preponderance
of probabilities first a defect of reason from a disease of the mind, and,
secondly, as a consequence of such a defect, ignorance of the nature and
quality (or the wrongfulness) of the acts. We have to consider a case in
which it is sought to do so by medical evidence to the effect that the conduct
of the accused might be compatible with psychomotor epilepsy, which is a
disease of the mind affecting the reason, and that psychomotor epilepsy
could cause ignorance of the nature and quality of the acts done, but in
which the medical witness can assign no other cause for that ignorance.
Where the possibility of an unconscious act depends on, and only on. the
existence of a defect of reason from disease of the mind within the M’Naghten
Rules, a rejection by the jury of this defence of insanity necessarily implies
that they reject the possibility.
The Court of Criminal Appeal also took the view that where the alleged
automatism is based solely on a disease of the mind within the M’Naghten
Rules, the same burden of proof rests on the defence whether the ” plea ”
is given the name of insanity or automatism. I do not think that statement
goes further than saying that when you rely on insanity as defined by the
Rules you cannot by a difference of nomenclature avoid the road so often
and authoritatively laid down by the Courts.
What I have said does not mean that, if a defence of insanity is raised
unsuccessfully, there can never, in any conceivable circumstances, be room
tor an alternative defence based on automatism. For example, it may be
alleged that the accused had a blow on the head after which he acted
without being conscious of what he was doing or was a sleep-walker. There
might be a divergence of view as to whether there was a defect of reason
from disease of the mind (compare the curious position which arose in
Regina v. Kemp [1957] 1 Q.B. 399). The jury might not accept the evidence
of a defect of reason from disease of the mind, but at the same time accept
the evidence that the prisoner did not know what he was doing. If the
jury should take that view of the facts they would find him not guilty.
But it should be noted that the defence would only have succeeded because
the necessary foundation had been laid by positive evidence which, properly
considered, was evidence of something other than a defect of reason from
disease of the mind. In my opinion, this analysis of the two defences
(insanity and automatism) shows that where the only cause alleged for the
unconsciousness is a defect of reason from disease of the mind, and that
cause is rejected by the jury, there can be no room for the alternative defence
cf automatism. Like the Court of Criminal Appeal, I cannot therefore
accept the submission that the whole of the evidence directed to the issue
of insanity should have been left to the jury to consider whether there was
automatism due to another cause. It was conceded before this House, and
this is stated in the judgment of the Court of Criminal Appeal, that there
was nothing to show or suggest that there was any other pathological cause
for automatism.
I next consider the submission that even so the question of automatism
ought to have been left to the jury.
Great reliance was placed on a passage in the judgment of North, J. in
the New Zealand case to which I have already referred (R. v. Cottle [1958]
N.Z.L.R. at 1029). Strictly this passage was obiter in view of the findings
on the first two grounds of appeal but its importance is none-the-less obvious.
5
” For the reasons I have earlier mentioned, however, as the autho-
” rities at present stand he (the judge) would not treat a plea of auto-
” matism as something akin to insanity, and therefore subject to the
” same rule as to the burden of proof for this would be an unwarranted
” extension of the rule laid down so positively in Woolmington’s case
” (1935 A.C. p. 462) … On the other hand in cases like the present
” one, where the form of the plea is that the prisoner acted unconsciously
” —in a state of automatism—the rejection of the evidence that he was
” suffering from a disease of the mind does not wholly dispose of the
” defence, for it is still possible, though perhaps unlikely, that the jury
” may not be completely satisfied that the act was the conscious and
” intended act of the prisoner. In my opinion the presiding judge must
” anticipate this possible situation. He must be careful to tell the jury
” that—apart from the plea of insanity—the onus of proving all the
” facts necessary to establish guilt rests on the Crown. Consequently,
” if the jury is of opinion that it has not been made out that the prisoner
” was suffering from a disease of the mind, it must remember that it
” is the responsibility of the Crown to satisfy it that the prisoner had
” known and understood the nature of the act he committed.”
If by this passage in his judgment North, J. meant to imply that in every
case where insanity is raised, automatism must always be left to the jury
as a defence, I should, with respect, be unable to accept what he says as a
correct statement of the law. But what North, J. said must be considered
in the light of the view expressed by the whole court (and set out in the
headnote to the report) that not only must automatism be expressly put
forward as a defence but also that a proper foundation must be laid for
it. In my view the learned judge was only considering the situation where
there was positive evidence which would justify a finding by the jury that
the accused acted in a state of automatism. This is in accordance with
the view taken by this House in Mancini v. Director of Public Prosecutions
[1942] A.C.1, in which it was pointed out that the decision in Woolmington’s
case (supra) did not mean that the judge must deal in his summing-up with
the issues of accident and provocation merely because these defences were
raised. There must be some evidence of accident or provocation on which
a reasonable jury could act. I think that this provides the synthesis between
the reasoning of the Court of Criminal Appeal in the present case and the
passage just quoted from North, J. It is necessary that a proper foundation
be laid before a judge can leave ” automatism ” to the jury. That founda-
tion, in my view, is not forthcoming merely from unaccepted evidence of a
defect of reason from disease of the mind. There would need to be other
evidence on which a jury could find non-insane automatism. What the Court
of Criminal Appeal say about the onus of proof must be read in the
context of evidence directed simultaneously to defences of insanity and
automatism.
Certain very relevant problems were discussed in Hill v. Baxter [1958]
1 Q.B. 277, where the Court (Lord Goddard, C.J., Devlin and Pearson, JJ.
(as they then were)) held that, in spite of the justices accepting the defendant’s
evidence that he became unconscious while driving, there was no evidence
which justified the justices in finding that the defendant was not fully
responsible in law for his actions. Lord Goddard expressed the view that
the onus of proving that the defendant was in a state of automatism was
on him because automatism is akin to insanity and further is a fact exclu-
sively within his own knowledge. The other members of the Court reserved
this point. Nevertheless Devlin, J. at pp. 284/5 used these words, with
which I respectfully agree and which are relevant to the present case—
” It would be quite unreasonable to allow the defence to submit
” at the end of the prosecution’s case that the Crown had not proved
” affirmatively and beyond a reasonable doubt that the accused was
” at the time of the crime sober, or not sleepwalking or not in a trance
” or blackout.”
Later on p. 285 he continued—
” In my judgment there is not to be found in the case stated evidence
” of automatism of a character which would be fit to leave to a
6
” jury … he was not saying that he was a victim of any disease of the
” mind. Unless there was evidence that his irrationality was due to
” some cause other than disease of the mind, the justices were not
” entitled simply to acquit.”
I have also read with great interest and profit the Victorian case of
Regina v. Carter [1959 V.R. 105] and the Queensland cases of The Queen
v. Foy (Queensland Vol. LIII, Part III 225) and Cooper v. McKenna (in
Part IV. at p. 406). I do not think that this is the occasion to pursue the
particular facts or the effect of particular statutes but it seems to me that none
of the learned judges would question the proposition that, for a defence of
automatism to be ” genuinely raised in a genuine fashion “, there must be
evidence on which a jury could find that a state of automatism exists. By
this I mean that the defence must be able to point to some evidence, whether
it emanates from their own or the Crown’s witnesses, from which the jury
could reasonably infer that the accused acted in a state of automatism.
Whether or no: there is such evidence is a matter of law for the judge to
decide. In the case before your Lordships, in my opinion. McVeigh, J.
was right in ruling that there was no evidence on this point fit to be left
to the jury. I have already dealt with the unsuccessful attempt to prove
psychomotor epilepsy and the concession before us that there was nothing
in the evidence to show or suggest that there was any other pathological
cause. If one subtracts the medical evidence directed to the establishment
of psychomotor epilepsy. I am of opinion that there was not any evidence
on which a jury could properly have considered the existence of automatism.
Counsel for the Petitioner directed our attention to the Petitioner’s state-
ment, to his evidence and to his previous conduct. In my view they do
not provide evidence fit to be left to a jury on this question. They could
not form the basis of reasonable doubt.
McVeigh, J. did not, therefore, have to consider what direction he would
have given to the jury if he had felt that there was evidence fit for them
to consider. It is not, strictly speaking, necessary for the decision of this
appeal for this House to consider what this direction should have been,
but in view of the mention of onus in the judgment of the Court of Criminal
Appeal and the argument addressed to us, I think that it is right for
me to deal with it.
Where the defence succeeds in surmounting the initial hurdle (see Mancini
v. Director of Public Prosecutions, supra), and satisfies the judge that there
is evidence tit for the jury to consider, the question remains whether the
proper direction is—
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that the jury will acquit if, and only if, they are satisfied on the
balance of probabilities that the accused acted in a state of automatism,
or -
that they should acquit if they are left in reasonable doubt on
this point.
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In favour of the former direction it might be argued that, since a defence
of automatism is (as Lord Goddard said in Hill v. Baxter (supra)) very
near a defence of insanity, it would be anomalous if there were any distinc-
tion between the onus in the one case and in the other. If this argument
were to prevail it would follow that the defence would fail unless they
established on a balance of probabilities that the prisoner’s act was uncon-
scious and involuntary in the same way as, under the M’Naghten Rules, they
must establish on a balance of probabilities that the necessary requirements
are satisfied.
Nevertheless, one must not lose sight of the overriding principle, laid down
by this House in Woolmington’s case (supra), 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 pro-
secution 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
7
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.
I find support for this view in the direction given by Barry, J. to the
jury in Reg. v. Charlson [1955] 1 W.L.R. 317. In that case the prisoner
was charged on three counts, namely, causing grievous bodily harm with
intent to murder, causing grievous bodily harm with intent to cause grievous
bodily harm, and unlawful wounding. The defence raised the issue of
automatism and called medical evidence in support of it. The learned
judge, on the basis—which has aroused some discussion—that insanity did
not come into the case, after directing the jury that on each of the first two
charges the prosecution must prove the specific intent, went on to deal
with the third charge, that is, unlawful wounding, in these words:
” Therefore, in considering this third charge, you will have to ask
” yourselves whether the accused knowingly struck his son, or whether
” he was acting as an automaton without any knowledge of, or control
” over, his acts … If you are left in any doubt about the matter,
” and you think that he may well have been acting as an automaton
” without any real knowledge of what he was doing, then the proper
” verdict would be ‘ not guilty’ . . . ”
I am also supported by the words of Scholl, J. in Regina v. Carter (supra)
at p. 111 when he said:
” It must be for the defence in the first instance genuinely to raise
” the issue, but if the defence does raise the issue in a genuine fashion
” then the Crown which, of course, may call rebutting evidence on
” the matter, is bound in the long run to carry the ultimate onus of
” proving all the elements of the crime including the conscious perpe-
” tration thereof.”
My conclusion is, therefore, that once the defence have surmounted the
initial hurdle to which I have referred and have satisfied the judge that
there is evidence fit for the jury’s consideration, the proper direction is that,
if that evidence leaves them in a real state of doubt, the jury should acquit
On the second ground of appeal, that the learned judge was wrong in
failing to leave the issue of manslaughter to the jury, I find myself in entire
agreement with the words of Lord MacDermott in giving the judgment of
the Court of Criminal Appeal on this point and respectfully adopt his
reasoning.
I think that this appeal should be dismissed.
Lord Tucker
MY LORDS,
I agree. I also desire to express my agreement with the Opinion to be
delivered by my noble and learned friend, Lord Morris of Borth-y-Gest.
which I have had the advantage of reading in print.
Lord Denning
MY LORDS,
In the case of Woolmington v. The Director of Public Prosecutions [1935]
A.C. 462 at p. 482 Viscount Sankey, L.C., said that ” when dealing with a
” murder case the Crown must prove (a) death as the result of a voluntary
” act of the accused and (b) malice of the accused “. The requirement that
it should be a voluntary act is essential, not only in a murder case, but also
in every criminal case. No act is punishable if it is done involuntarily: and
an involuntary act in this context—some people nowadays prefer to speak of
it as ” automatism “-—means an act which is done by the muscles without
8
any control by the mind such as a spasm, a reflex action or a convulsion;
or an act done by a person who is not conscious of what he is doing such as
an act done whilst suffering from concussion or whilst sleep-walking. The
point was well put by Stephen J. in 1889: “Can anyone doubt that a man
” who, though he might be perfectly sane, committed what would otherwise
” be a crime in a state of somnambulism, would be entitled to be acquitted?
” And why is this? Simply because he would not know what he was doing “,
see The Queen v. Tolson (1889) 23 Q.B.D. 168, at page 187. The term
” involuntary act” is, however, capable of wider connotations: and to
prevent confusion it is to be observed that in the criminal law an act is not
to be regarded as an involuntary act simply because the doer does not
remember it. When a man is charged with dangerous driving, it is no defence
to him to say ” I don’t know what happened. I cannot remember a thing “,
see Hill v. Baxter [1958] 1 Q.B. 277. Loss of memory afterwards is never
a defence in itself, so long as he was conscious at the time, see Russell v.
H.M. Advocate, 1946 S.C. (J) 37. Regina v. Podola [I960] 1 Q.B. 325.
Nor is an act to be regarded as an involuntary act simply because the
doer could not control his impulse to do it. When a man is charged
with murder, and it appears that he knew what he was doing, but he
could not resist it, then his assertion. “I couldn’t help myself”, is
no defence in itself, see Attorney-General for South Australia v. Brown
[1960] AC 432: though it may go towards a defence of diminished
responsibility, in places where that defence is available, see Regina
v. Byrne (19601 2 Q.B. 396: but it does not render his act involun-
tary so as to entitle him to an unqualified acquittal. Nor is an act to
be regarded as an involuntary act simply because it is unintentional or its
consequences are unforeseen. When a man is charged with dangerous
driving, it is no defence for him to say, however truly, ” I did not mean to
” drive dangerously “. There is an absolute prohibition against that offence,
whether he had a guilty mind or not. see Hill v. Baxter [1958] 1 Q.B. 277 at
p. 282 by Lord Goddard C.J. But even though it is absolutely prohibited,
nevertheless he has a defence if he can show that it was an involuntary act in
the sense that he was unconscious at the time and did not know what he was
doing, see H.M. Advocate v. Ritchie 1926 S.C. (J) 45, Regina v. Minor
(1955) 15 W.L.R. (N.S.) 443 and Cooper v. McKenna, 1960 Queensland
Reports 406.
Another thing to be observed is that it is not every involuntary act which
leads to a complete acquittal. Take first an involuntary act which proceeds
from a state of drunkenness. If the drunken man is so drunk that he does
not know what he is doing, he has a defence to any charge, such as murder
or wounding with intent, in which a specific intent is essential, but he is still
liable to be convicted of manslaughter or unlawful wounding for which no
specific intent is necessary, see Director of Public Prosecutions v. Beard
[1920] A.C. 479 at pages 494, 498. 504. Again, if the involuntary act
proceeds from a disease of the mind, it gives rise to a defence of insanity,
but not to a defence of automatism. Suppose a crime is committed by a
man in a state of automatism or clouded consciousness due to a recurrent
disease of the mind. Such an act is no doubt involuntary, but it does not
give rise to an unqualified acquittal, for that would mean that he would
be let at large to do it again. The only proper verdict is one which ensures
that the person who suffers from the disease is kept secure in a hospital
so as not to be a danger to himself or others. That is, a verdict of guilty
but insane.
Once you exclude all the cases I have mentioned, it is apparent that the
category of involuntary acts is very limited. So limited indeed that until
recently there was hardly any reference in the English books to this so-called
defence of automatism. There was a passing reference to it in 1951 in
Regina v. Harrison-Owen [1951] 2 A.E.R. 726, where a burglar, who broke
into houses, said he did not know what he was doing. I should have thought
that, in order to rebut this defence, he could have been cross-examined about
his previous burglaries: but the Court of Criminal Appeal ruled otherwise.
I venture to doubt that decision. The next is the singular case of Regina
v. Charlson [1955] 1 W.L.R. 317. Stanley Charlson, a devoted husband
9
and father, hit his ten-year old son on the head with a hammer and threw
him into the river and so injured him. There was not the slightest cause
for the attack. He was charged with causing grievous bodily harm with
intent, and with unlawful wounding. The evidence pointed to the possibility
that Charlson was suffering from a cerebral tumour, in which case he would
be liable to a motiveless outburst of impulsive violence over which he would
have no control at all. Now comes the important point—no plea of insanity
was raised, but only the defence of automatism. Barry J. directed the jury
in these words: ” If he did not know what he was doing, if his actions were
” purely automatic and his mind had no control over the movement of his
” limbs, if he was in the same position as a person in an epileptic fit, then
” no responsibility rests upon him at all, and the proper verdict is ‘ Not
” ‘ Guilty ‘ “. On that direction the jury found him Not Guilty. In striking
contrast to Charlson’s case is Regina v. Kemp [1957] 1 Q.B. 399. A devoted
husband of excellent character made an entirely motiveless and irrational
attack upon his wife. He struck her violently with a hammer. He was
charged with causing her grievous bodily harm. It was found that he suffered
from hardening of the arteries which might lead to a congestion of blood
in the brain. As a result of such congestion, he suffered a temporary lack
of consciousness, so that he was not conscious that he picked up the hammer
or that he was striking his wife with it. It was therefore an involuntary act.
Note again the important point—no plea of insanity was raised but only
the defence of automatism. Nevertheless, Devlin J. put insanity to the jury.
He held that hardening of the arteries was a ” disease of the mind ” within
the M’Naghten Rules and he directed the jury they ought so to find. They
accordingly found Kemp guilty but insane.
My Lords, I think that Devlin J. was quite right in Kemp’s Case in
putting the question of insanity to the jury, even though it had not been
raised by the defence. When it is asserted that the accused did an involuntary
act in a state of automatism, the defence necessarily puts in issue the state
of mind of the accused man: and thereupon it is open to the prosecution
to show what his true state of mind was. The old notion that only the
defence can raise a defence of insanity is now gone. The prosecution are
entitled to raise it and it is their duty to do so rather than allow a dangerous
person to be at large. The Trial of Lunatics Act, 1883, says that where
” it is given in evidence ” that the person was insane, the jury shall return
a verdict of guilty but insane. It does not say that the defence alone can
give such evidence. The prosecution can give it. And in either case
inasmuch as the verdict is one of acquittal, see Felstead v. The King [1914]
A.C. 534, it should be decided on the balance of probabilities. So it has
been held in England that where a man sets up a defence of diminished
responsibility, the prosecution are entitled to show that he was insane,
see Regina v. Bastion [1958] 1 W.L.R. 413: and conversely when a man sets
up insanity, the prosecution are entitled to give evidence of diminished
responsibility, see Regina v. Nott (1958) 43 Cr. Ap. R. 8.
Upon the other point discussed by Devlin J. namely, what is a ” disease
” of the mind ” within the M’Naghten Rules, I would agree with him that
this is a question for the Judge. The major mental diseases, which the
doctors call psychoses, such as schizophrenia, are clearly diseases of the
mind. But in Charlson’s case, Barry J. seems to have assumed that other
diseases such as epilepsy or cerebral tumour are not diseases of the mind,
even when they are such as to manifest themselves in violence. I do not
agree with this. It seems to me that any mental disorder which has mani-
fested itself in violence and is prone to recur is a disease of the mind.
At any rate it is the sort of disease for which a person should be detained
in hospital rather than be given an unqualified acquittal.
It is to be noticed that in Charlson’s case and Kemp’s case the defence
raised only automatism, not insanity. In the present case the defence raised
both automatism and insanity. And herein lies the difficulty because
of the burden of proof. If the accused says he did not know what he was
doing, then, so far as the defence of automatism is concerned, the Crown
must prove that the act was a voluntary act, see Woolmington’s case [1935]
A.C. 462 at p. 482. But so far as the defence of insanity is concerned, the
10
defence must prove that the act was an involuntary act due to disease of the
mind, see M’Naghten’s case (1843) Cl. & F. at p. 210. This apparent
incongruity was noticed by Sir Owen Dixon, the Chief Justice of Australia,
in an address which is to be found in 31 Australian Law Journal 255 and it
needs to be resolved. The defence here say: Even though we have not
proved that the act was involuntary, yet the Crown have not proved that
it was a voluntary act: and that point at least should have been put to the
jury.
My Lords, I think that the difficulty is to be resolved by remembering
that, whilst the ultimate burden rests on the Crown of proving every element
essential in the crime, nevertheless in order to prove that the act was a
voluntary act, the Crown is entitled to rely on the presumption that every
man has sufficient mental capacity to be responsible for his crimes: and
that if the defence wish to displace that presumption they must give some
evidence from which the contrary may reasonably be inferred. Thus a
drunken man is presumed to have the capacity to form the specific intent
necessary to constitute the crime, unless evidence is given from which it
can reasonably be inferred that he was incapable of forming it, see the
valuable judgment of the Court of Session in Kennedy v. H.M. Advocate,
1944 S.C. (J.) 171 at p. 177 which was delivered by Lord Normand. So also
it seems to me that a man’s act is presumed to be a voluntary act unless
there is evidence from which it can reasonably be inferred that it was in-
voluntary To use the words of Devlin J. the defence of automatism “ought
” not to be considered at all until the defence has produced at least prima
“ facie evidence.” see Hill v. Baxter [1958] 1 Q.B. 277 at p. 285; and the
words of North J. in New Zealand ” unless a proper foundation is laid,” see
Regina v. Cattle, 1958 N.Z. L.R. at p. 1025. The necessity of laying this
proper foundation is on the defence: and if it is not so laid, the defence of
automatism need no; be left to the jury, any more than the defence of
drunkenness, (Kennedy v. H.M. Advocate, supra) provocation (R. v.
Gauthier. 21 Cr. Ap. R. 113) or self-defence (Regina v. Lobell [1957] 1
Q.B. 547) need be.
What then is a proper foundation? 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 neverthe-
less, 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 involun-
tary. The evidence of the man himself will rarely be sufficient unless it is
supported by medical evidence which points to the cause of the mental
incapacity. It is not sufficient for a man to say ” I had a blackout”: for
“Black-out” as Stable J said in Cooper v. McKenna, 1960 Queensland
Reports at p. 419, ” is one of the first refuges of a guilty conscience and a
popular excuse “. The words of Devlin J in Hill v. Baxter [1958] 1 Q.B. at
p. 285 should be remembered: ” I do not doubt that there are genuine cases
“of automatism and the like, but I do not see how the layman can safely
” attempt without the help of some medical or scientific evidence to distinguish
” the genuine from the fraudulent”. When the only cause that is assigned for
an involuntary act is drunkenness, then it is only necessary to leave drunken-
ness to the jury, with the consequential directions, and not to leave
automatism at all. When the only cause that is assigned for it is a disease
of the mind, then it is only necessary to leave insanity to the jury, and not
automatism. When the cause assigned is concussion or sleep-walking, there
should be some evidence from which it can reasonably be inferred before
it should be left to the jury. If it is said to be due to concussion, there
should be evidence of a severe blow shortly beforehand. If it is said to
be sleep-walking, there should be some credible support for it. His mere
assertion that he was asleep will not suffice.
Once a proper foundation is thus laid for automatism, the matter becomes
at large and must be left to the jury. As the case proceeds, the evidence
11
may weigh first to one side and then to the other: and so the burden may
appear to shift to and fro. But at the end of the day the legal burden
comes into play and requires that the jury should be satisfied beyond
reasonable doubt that the act was a voluntary act.
This brings me to the root question in the present case: Was a proper
foundation laid here for the defence of automatism apart from the plea
of insanity? There was the evidence of George Bratty himself that he
could not remember anything because ” this blackness was over me “. He
said: ” I did not realise exactly what I was doing “, and added afterwards:
” I didn’t know what I was doing. I didn’t realise anything “. He said
he had 4 or 5 times previously had ” feelings of blackness ” and frequently
headaches. There was evidence, too, of his odd behaviour at times, his
mental backwardness and his religious leanings. Added to this there was
the medical evidence. Dr. Sax, who was called on his behalf, said there
was a possibility that he was suffering from psychomotor epilepsy. It was,
he said, practically the only possibility that occurred to him. Dr. Walker,
his general practitioner, said you could not leave the possibility out of
account. Dr. Robinson, a specialist, who gave evidence on behalf of the
Crown, said he thought it was extremely unlikely that it was an epileptic
attack, but one could not rule it out. All the doctors agreed that psycho-
motor epilepsy, if it exists, is a defect of reason due to disease of the
mind : and the Judge accepted this view. No other cause was canvassed.
In those circumstances, I am clearly of opinion that, if the act of George
Bratty was an involuntary act, as the defence suggested, the evidence
attributed it solely to a disease of the mind and the only defence open
was the defence of insanity. There was no evidence of automatism apart
from insanity. There was, therefore, no need for the Judge to put it to
the jury. And when the jury rejected the defence of insanity, they rejected
the only defence disclosed by the evidence.
I think that McVeigh J. was right in the course he took at the trial, and
I find myself in entire agreement with the judgment of Lord MacDermott.
C.J., in the Court of Criminal Appeal. I would, therefore, dismiss the
appeal.
Lord Morris of Borth-y-Gest
MY LORDS,
The Court of Criminal Appeal certified that their decision in dismissing
the Appellant’s appeal involved two points of law of general public import-
ance. The first was ” whether, his plea of insanity having been rejected by
” the jury, it was open to the accused to rely upon a defence of automatism “.
This raises the question whether a person who by legal tests and standards
is sane and who is charged with a criminal offence could be held to be
non-accountable for his actions so as to be not guilty of the offence charged
against him on the basis that his actions had been unconscious ones and
in that sense involuntary. My Lords, I can conceive that this could be
so though the cases where such a situation could arise must be very rare.
Each set of facts must require a careful investigation of its own circumstances
but if, by way of taking an illustration, it were considered possible for a
person to walk in his sleep and to commit a violent act while genuinely
unconscious, then such a person would not be criminally liable for that act.
Apart altogether from any question as to whether some particular criminal
charge requires proof of some particular intent, in the possible case that
I have postulated there would be immunity from any conviction for the
reason that the act in question could not really be considered to be the
act of the person concerned at all.
The ” golden ” rule of the English criminal law that it is the duty of
the prosecution to prove an accused person’s guilt (subject to any statutory
exception and subject to the special position which arises where it is given
12
in evidence that an accused person is insane) does not involve that the
prosecution must speculate as to and specifically anticipate every conceivable
explanation that an accused person might offer. The evidence of the com-
mission of certain acts may suffice to prove that they were intentional. In a
charge of murder malice may by implication be proved where death occurs
as the result of a voluntary act of the accused which is (i) intentional and
(ii) unprovoked. When evidence of death and malice has been given an
accused person may, however, either by adducing evidence or by examining
the circumstances adduced by the Crown, show that his actions were either
unintentional or provoked. In such a situation the continuing and constant
obligation of the prosecution to satisfy the jury beyond any reasonable
doubt is in no way abated (see Woolmington v. Director of Public Prosecu-
tions [1935] AC 462). In the conceivably possible case that I have postulated
(of a violent act committed by a sleep-walker) it would not necessarily
be the duty of the prosecution in leading their evidence as to the commission
of the act specifically to direct such evidence to negativing the possibility
of the act having been committed while sleep-walking. If, however, during
the trial the suggested explanation of the act was advanced and if such
explanation was so supported that it had sufficient substance to merit con-
sideration by the jury, then the onus which is upon the prosecution would
not be discharged unless the jury, having considered the explanation, were
sure that guilt in regard to the particular crime charged was established so
that they were left in no reasonable doubt. The position would be analogous
to that which arises where a defence of self-defence is raised. Though the
onus is upon the prosecution to negative that defence, the obligation to do
so only arises effectively when there is a suggestion of such defence (see
Regina v. Lobell [1957] 1 Q.B. 547).
Before an explanation of any conduct is worthy of consideration such
explanation must be warranted by the established facts or be supported
by same evidence that has been given by some witness. Though questions
as to whcthcr evidence should or should not be accepted or as to the weight
to be attached to it are for the determination of the jury, it is a province
of the judge to rule whether a theory or a submission has the support of
evidence so that it can properly be passed to the jury for their consideration.
As human behaviour may manifest itself in infinite varieties of circumstances
it is perilous to generalise, but it is not every facile mouthing of some easy
phrase of excuse that can amount to an explanation. It is for a judge to
decide whether there is evidence fit to be left to a jury which could be the
basis for some suggested verdict.
My Lords, the fact that a plea of insanity was advanced on behalf of the
accused did not of itself prevent the raising of alternative or additional
matters, and in regard to the first point of law presented by the Court of
Criminal Appeal I consider that though the Appellant’s plea of insanity
was rejected by the jury it was ” open ” to him to rely upon the suggested
defence which is denoted by the word ” automatism “.
On this basis the second point of law certified by the Court of Criminal
Appeal calls for consideration. It was expressed in these words: ” If the
” answer to (1) be in the affirmative, whether, on the evidence, the defence
” of automatism should have been left to the jury.” This raises the question
whether there was any evidence of ” automatism ” which was fit to be left
to the jury. The argument on behalf of the Appellant involved consideration
both of the medical evidence and of the non-medical evidence. In his
statement made on the 23rd December, 1960, the Appellant had spoken of
” a sort of blackness ” and in his evidence in Court he had spoken of a
” blackness ” having come over him and of previous occasions when he had
had feelings of blackness. There were three medical witnesses called (either
by the prosecution or by the defence) during the trial. In questions that
were put to them and in the course of ‘their evidence the only pathological
explanation of what the Appellant might have been suffering from that was
suggested or in any way canvassed was the ‘possibility that he might have
been suffering from psychomotor epilepsy. Psychomotor epilepsy was said
to toe a functional disorder amounting to defect of reason due to disease
13
of the mind. There was some evidence that during an attack of psycho-
motor epilepsy a person might commit a violent act unconsciously. There
was no medical evidence which was directed to the suggestion of ” auto-
” matism” other than automatism of an epileptic character. It was,
however, urged that in spite of this and notwithstanding that the plea of
insanity was rejected the jury should have been told that the medical
evidence could still support the view that the Appellant though sane had
acted unconsciously. It was urged that the jury on a balance of probabili-
ties might not have considered that the Appellant was insane but might
have had reasonable doubts as to whether his actions were conscious ones
and accordingly had this possible view of the matter been left to them
might have returned a verdict of not guilty. The only medical evidence,
however, which could lend any support at all to the suggestion that the
Appellant had acted unconsciously was such evidence as could tend to
show that he might have suffered from psychomotor epilepsy—which was
a disease of the mind. When the plea of insanity failed the presumption
of sanity remained and no medical evidence was adduced which was at all
directed to the question whether on the assumption that the Appellant was
sane he might yet for some reason have acted unconsciously. The submission
on behalf of the Appellant that the medical evidence could support a plea
of automatism so that the jury might have ‘had reasonable doubt whether
the actions of the Appellant which caused the death were conscious and
voluntary involved in effect a repetition of the plea of insanity while
endeavouring to avoid the well-established rules as to how insanity must be
established.
The non-medical evidence which was relied upon as supporting the sug-
gestion that the Appellant had acted in a state of automatism was the
evidence of the Appellant himself and all the evidence as to his general
behaviour and backwardness and his characteristics and all the evidence
relating to the circumstances attending the death of the deceased. The
argument for the Appellant was that there was evidence upon which the
jury would have been warranted in finding that the Appellant acted un-
consciously because he was in a state of automatism which was not due
to a disease of the mind and that either on this basis or on the basis of
having reasonable doubts as to whether the actions of the Appellant were
conscious and voluntary ones the jury would have been warranted in returning
a verdict of not guilty. In his statement on the 23rd December, 1960,
the Appellant gave an account of what he had done. The Appellant said
in the witness box that he did not at the time know what he was doing
or ” did not realise exactly ” what he was doing or realise at the time what
he had done or did not remember what he had done. He also said that he
had not ” meant to do any harm “. A consideration of his evidence and
of the other evidence in the case leads me to the view that it did not
provide a proper foundation for a submission that (apart from any question
of insanity) the actions of the Appellant had been unconscious and involun-
tary. There was no sufficient evidence, fit to be left to a jury, on which
a jury might conclude that the Appellant had acted unconsciously and
involuntarily or which might leave a jury in reasonable doubt whether this
might be so. There was much evidence which showed that the Appellant
had been and was in many respects backward. He had, however, always
been well-behaved and ordinarily he was quiet and kindly: his actions on
the 22nd December, 1960, seemed out of keeping with his character. The
evidence amply warranted the learned judge in saying to the jury that they
” might think he was an odd fish, an odd fish, this boy—indeed not only
” as a boy but when he grew up later he was an odd sort of a being, not
” just quite normal, and that he behaved in these, perhaps minor, ways of
” abnormality”. However relevant all the evidence so referred to might
have been if a different defence than insanity had been available and
however relevant it may be in considering questions which are not for
your Lordships’ determination, such evidence does not tend to support a
plea that the actions of the Appellant were unconscious ones. Accordingly
I consider that the learned judge at the trial was right in the course that
he took.
14
I am in agreement with the reasons given by the Court of Criminal
Appeal for concluding that the learned judge was right in not leaving the
issue of manslaughter to the jury.
I would dismiss the appeal.
Lord Hodson
my lords,
I agree with the speech which has been delivered by my noble and learned
friend on the Woolsack, and also with that which has just been delivered
by my noble and learned friend, Lord Morris of Borth-y-Gest.
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