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R v Sullivan [1983] 2 All ER 673
HOUSE OF LORDS LORD DIPLOCK, LORD SCARMAN, LORD LOWRY, LORD BRIDGE OF HARWICH AND LORD BRANDON OF OAKBROOK 20, 21 APRIL, 23 JUNE 1983

The defendant was charged with inflicting grievous bodily harm on P. At his trial he admitted inflicting grievous bodily harm on P, who was a friend, but asserted by way of a defence that he had done so while in the final stage of recovering from a minor epileptic seizure. The undisputed medical evidence at the trial was that the effect on the functioning of the brain of such a seizure was that the epileptic could have no memory, and would not be conscious, of what he had done during the seizure. The trial judge ruled that the defence amounted to one of insanity, rather than a defence of automatism, and that if the jury accepted the defence they would be required to return the special verdict of not guilty by reason of insanity provided for in s 2(1)a of the Trial of Lunatics Act 1883, and that in consequence the judge would be required, by virtue of s 5(1)b of the Criminal Procedure (Insanity) Act 1964, to order the defendant to be detained in a special hospital. To avoid those consequences the defendant changed his plea to guilty of the lesser offence of assault occasioning actual bodily harm and was convicted of that offence. He was sentenced to probation under medical supervision. He appealed against the conviction on the ground that the judges ruling was erroneous in law and had deprived him of the opportunity of pleading the defence of automatism to the charge of inflicting grievous bodily harm which would have been likely to result in an acquittal. The Court of Appeal upheld the judges ruling and dismissed the appeal. The defendant appealed to the House of Lords.
________________________________________ a Section 2(1) provides: Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict that the accused is not guilty by reason of insanity. b Section 5(1), so far as material, provides: Where(a) a special verdict is returned the court shall make an order that the accused be admitted to such hospital as may be specified by the Secretary of State.

Held When a defence of insanity was put forward on a criminal charge it remained the case that the accused had clearly to prove, in accordance with the definition of insanity in the MNaghten Rules, that at the time of committing the criminal act he was labouring under a defect of reason resulting from disease of the mind, the term mind being used in the ordinary sense of the mental faculties of reason, memory and understanding. Thus, if the effect of a disease was to impair those faculties so severely

as to have the consequence that the accused did not know what he was doing, or, if he did, that he did not know that it was wrong, he was insane in the legal sense. Accordingly, it did not matter whether the cause of the impairment was organic, as in epilepsy, or functional, or whether the impairment itself was permanent or was transient and intermittent, provided it subsisted at the time of commission of the act, since the purpose of the legislation relating to the defence of insanity was to protect society against recurrence of the dangerous state, no matter how temporary the duration of the suspension of faculties might be. It followed therefore that, if the occurrence of an epileptic fit brought about a temporary suspension of the mental faculties of reason, memory and understanding during the course of which an offence was committed, the special verdict of not guilty by reason of insanity was appropriate. The appeal would therefore be dismissed (see p 677 h to p 678 b g to p 679 a, post). Dictum of Devlin J in R v Kemp [1956] 3 All ER at 253 applied. Bratty v A-G for Northern Ireland [1961] 3 All ER 523 considered. Per curiam. A defence of non-insane automatism, for which the proper verdict would be a verdict of not guilty, may be available in cases where temporary impairment of the mental faculties, not being self-induced by consuming drink or drugs, results from some external physical factor such as a blow to the head causing concusssion or the administration of an anaesthetic for therapeutic purposes (see p 678 b c h to p 679 a, post). Decision of the Court of Appeal [1983] 1 All ER 577 affirmed. LORD DIPLOCK. My Lords, the appellant, a man of blameless reputation, has the misfortune to have been a lifelong sufferer from epilepsy. There was a period when he was subject to major seizures known as grand mal but as a result of treatment which he was receiving as an out-patient of the Maudsley Hospital from 1976 onwards, these seizures had, by the use of drugs, been reduced by 1979 to seizures of less severity known as petit mal, or psychomotor epilepsy, though they continued to occur at a frequency of one or two per week. One such seizure occurred on 8 May 1981, when the appellant, then aged 51, was visiting a neighbour, Mrs Killick, an old lady aged 86 for whom he was accustomed to perform regular acts of kindness. He was chatting there to a fellow visitor and friend of his, a Mr Payne aged 80, when the epileptic fit came on. It appears likely from the expert medical evidence about the way in which epileptics behave at the various stages of a petit mal seizure that Mr Payne got up from the chair to help the appellant. The only evidence of an eye-witness was that of Mrs Killick, who did not see what had happened before she saw Mr Payne lying on the floor and the appellant kicking him about the head and body, in consequence of which Mr Payne suffered injuries severe enough to require hospital treatment. As a result of this occurrence the appellant was indicted on two counts: the first was of causing grievous bodily harm with intent, contrary to s 18 of the Offences against the Person Act 1861; the second was of causing grievous bodily harm, contrary to s 20 of the Act. At his trial, which took place at the Central Criminal Court before his Honour Judge Lymbery QC and a jury, the appellant pleaded not guilty to both counts. Mrs Killicks evidence that he had kicked Mr Payne violently about the head and body was undisputed and the appellant himself gave evidence of his history of epilepsy and his absence of all recollection of what had occurred at Mrs Killicks flat between the time that he was chatting peacefully to Mr Payne there and his returning to the flat from somewhere else to find that Mr Payne was injured and that an ambulance had been sent for. The prosecution accepted his evidence as true. There was no crossexamination.

Counsel for the appellant wanted to rely on the defence of automatism or, as Viscount Kilmuir LC had put in Bratty v A-G for Northern Ireland [1961] 3 All ER 523 at 530, [1963] AC 386 at 405, non-insane automatism, that is to say that he had acted unconsciously and involuntarily in kicking Mr Payne, but that when doing so he was not insane in the sense in which that expression is used as a term of art in English law, and in particular in s 2 of the Trial of Lunatics Act 1883, as amended by s 5 of the Criminal Procedure (Insanity) Act 1964. As was decided unanimously by this House in Brattys case, before a defence of non-insane automatism may properly be left to the jury some evidential foundation for it must first be laid. The evidential foundation that counsel laid before the jury in the instant case consisted of the testimony of two distinguished specialists from the neuropsychiatry epilepsy unit at the Maudsley Hospital, Dr Fenwick and Dr Taylor, as to the pathology of the various stages of a seizure due to psychomotor epilepsy. Their expert evidence, which was not disputed by the prosecution, was that the appellants acts in kicking Mr Payne had all the characteristics of epileptic automatism at the third or post-ictal stage of petit mal, and that, in view of his history of psychomotor epilepsy and the hospital records of his behaviour during previous seizures, the strong probability was that the appellants acts of violence towards Mr Payne took place while he was going through that stage. The evidence as to the pathology of a seizure due to psychomotor epilepsy can be sufficiently stated for the purposes of this appeal by saying that after the first stage, the prodram, which precedes the fit itself, there is a second stage, the ictus, lasting a few seconds, during which there are electrical discharges into the temporal lobes of the brain of the sufferer. The effect of these discharges cause him in the post-ictal stage to make movements which he is not conscious that he is making, including, and this was a characteristic of previous seizures which the appellant had suffered, automatic movements of resistence to anyone trying to come to his aid. These movements of resistence might, though in practice they very rarely would, involve violence. At the conclusion of the evidence, the judge, in the absence of the jury, was asked to rule whether the jury should be directed that if they accepted this evidence it would not be open to them to bring in a verdict of not guilty, but they would be bound in law to return a special verdict of not guilty by reason of insanity. The judge ruled that the jury should be so directed. After this ruling, the appellant, on the advice of his counsel and with the consent of the prosecution and the judge, changed his plea to guilty of assault occasioning actual bodily harm. The jury, on the direction of the judge, brought in a verdict of guilty of that offence, for which the judge sentenced him to three years probation subject to the condition that during that period he submitted to treatment under the direction of Dr Fenwick at the Maudsley Hospital. My Lords, neither the legality nor the propriety of the procedure adopted after the judges ruling has been canvassed in this House, nor was it canvassed in the Court of Appeal to which an appeal was brought on the ground that the judge ought to have left to the jury the defence of non-insane automatism which, if accepted by them, would have entitled the appellant to a verdict of not guilty. In these circumstances the present case does not appear to be one in which it would be appropriate for this House to enter into a consideration of the procedure followed in the Central Criminal Court after the judges ruling, more particularly as it raises some questions that will shortly come before your Lordships for argument in another appeal. The Court of Appeal held that Judge Lymberys ruling had been correct (see [1983] 1 All ER 577, [1983] 2 WLR 392). It dismissed the appeal and certified that a point of law of general public importance was involved in the decision, namely:

Whether a person who is proved to have occasioned, contrary to section 47 of the Offences against the Person Act 1861, actual bodily harm to another, whilst recovering from a seizure due to psychomotor epilepsy and who did not know what he was doing when he caused such harm and has no memory of what he did should be found not guilty by reason of insanity. My Lords, for centuries, up to 1843, the common law relating to the concept of mental disorders as negativing responsibility for crimes was in the course of evolution, but I do not think it necessary for your Lordships to embark on an examination of the pre-1843 position. In that year, following the acquittal of one Daniel MNaghten for shooting Sir Robert Peels secretary, in what today would probably be termed a state of paranoia, the question of insanity and criminal responsibility was the subject of debate in the legislative chamber of the House of Lords, the relevant statute then in force being the Criminal Lunatics Act 1800, an Act for the safe custody of Insane Persons charged with Offences, which referred to persons who were insane at the time of the commission of the offence, but contained no definition of insanity. The House invited the judges of the courts of common law to answer five abstract questions on the subject of insanity as a defence to criminal charges. The answer to the second and third of these questions combined was given by Tindal CJ on behalf of all the judges, except Maule J, and constituted what became known as the MNaghten Rules. The judges answer is in the following well-known terms (see MNaghtens Case (1843) 10 Cl & Fin 200 at 210,[184360] All ER Rep 229 at 233): the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. Although the questions put to the judges by the House of Lords referred to insane delusions of various kinds, the answer to the second and third questions (the MNaghten Rules) is perfectly general in its terms. It is stated to be applicable in all cases in which it is sought to establish a defence on the ground of insanity. This answer was intended to provide a comprehensive definition of the various matters which had to be proved (on balance of probabilities, as it has since been held) in order to establish that the accused was insane within the meaning of the 1800 Act, which, like its successors of 1883 and 1964, make it incumbent on a jury, if they find the accused to have been insane at the time that he committed the acts with which he is charged, to bring in a verdict neither of guilty nor of not guilty but a special verdict the terms of which have been varied under three successive statutes, but are currently not guilty by reason of insanity. The MNaghten Rules have been used as a comprehensive definition for this purpose by the courts for the last 140 years. Most importantly, they were so used by this House in Brattys case. That case was in some respects the converse of the instant case. Bratty was charged with murdering a girl by strangulation. He claimed to have been unconscious of what he was doing at the time he strangled the girl and he sought to run as alternative defences non-insane automatism and insanity. The only evidential foundation that he laid for either of these pleas was medical evidence that he might

have been suffering from psychomotor epilepsy which, if he were, would account for his having been unconscious of what he was doing. No other pathological explanation of his actions having been carried out in a state of automatism was supported by evidence. The trial judge first put the defence of insanity to the jury. The jury rejected it; they declined to bring in the special verdict. Thereupon, the judge refused to put the alternative defence of automatism. His refusal was upheld by the Court of Criminal Appeal of Northern Ireland and subsequently by this House. The question before this House was whether, the jury having rejected the plea of insanity, there was any evidence of non-insane automatism fit to be left to the jury. The ratio decidendi of its dismissal of the appeal was that the jury having negatived the explanation that Bratty might have been acting unconsciously in the course of an attack of psychomotor epilepsy, there was no evidential foundation for the suggestion that he was acting unconsciously from any other cause. In the instant case, as in Brattys case, the only evidential foundation that was laid for any finding by the jury that the appellant was acting unconsciously and involuntarily when he was kicking Mr Payne was that when he did so he was in the post-ictal stage of a seizure of psychomotor epilepsy. The evidential foundation in the case of Bratty, that he was suffering from psychomotor epilepsy at the time he did the act with which he was charged, was very weak and was rejected by the jury; the evidence in the appellants case, that he was so suffering when he was kicking Mr Payne, was very strong and would almost inevitably be accepted by a properly directed jury. It would be the duty of the judge to direct the jury that if they did accept that evidence the law required them to bring in a special verdict and none other. The governing statutory provision is to be found in s 2 of the Trial of Lunatics Act 1883. This says the jury shall return a special verdict. My Lords, I can deal briefly with the various grounds on which it has been submitted that the instant case can be distinguished from what constituted the ratio decidendi in Brattys case, and that it falls outside the ambit of the MNaghten Rules. First, it is submitted the medical evidence in the instant case shows that psychomotor epilepsy is not a disease of the mind, whereas in Brattys case it was accepted by all the doctors that it was. The only evidential basis for this submission is that Dr Fenwick said that in medical terms to constitute a disease of the mind or mental illness, which he appeared to regard as interchangeable descriptions, a disorder of brain functions (which undoubtedly occurs during a seizure in psychomotor epilepsy) must be prolonged for a period of time usually more than a day, while Dr Taylor would have it that the disorder must continue for a minimum of a month to qualify for the description a disease of the mind. The nomenclature adopted by the medical profession may change from time to time; Bratty was tried in 1961. But the meaning of the expression disease of the mind as the cause of a defect of reason remains unchanged for the purposes of the application of the MNaghten Rules. I agree with what was said by Devlin J in R v Kemp [1956] 3 All ER 249 at 253, [1957] 1 QB 399 at 407 that mind in the MNaghten Rules is used in the ordinary sense of the mental faculties of reason, memory and understanding. If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act. The purpose of the legislation relating to the defence of insanity, ever since its origin in 1880, has been to protect society against recurrence of the dangerous conduct. The duration of a temporary suspension

of the mental faculties of reason, memory and understanding, particularly if, as in the appellants case, it is recurrent, cannot on any rational ground be relevant to the application by the courts of the MNaghten Rules, though it may be relevant to the course adopted by the Secretary of State, to whom the responsibility for how the defendant is to be dealt with passes after the return of the special verdict of not guilty by reason of insanity. To avoid misunderstanding I ought perhaps to add that in expressing my agreement with what was said by Devlin J in R v Kemp, where the disease that caused the temporary and intermittent impairment of the mental faculties was arteriosclerosis, I do not regard that judge as excluding 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 physical factor such as a blow on the head causing concussion or the administration of an anaesthetic for therapeutic purposes. I mention this because in R v Quick [1973] 3 All ER 347, [1973] QB 910 Lawton LJ appears to have regarded the ruling in R v Kemp as going as far as this. If it had done, it would have been inconsistent with the speeches in this House in Brattys case, where R v Kemp was alluded to without disapproval by Viscount Kilmuir LC and received the express approval of Lord Denning. The instant case, however, does not in my view afford an appropriate occasion for exploring possible causes of non-insane automatism. The only other submission in support of the appellants appeal which I think it necessary to mention is that, because the expert evidence was to the effect that the appellants acts in kicking Mr Payne were unconscious and thus involuntary in the legal sense of that term, his state of mind was not one dealt with by the MNaghten Rules at all, since it was not covered by the phrase as not to know the nature and quality of the act he was doing. Quite apart from being contrary to all three speeches in this House in Brattys case, the submission appears to me, with all respect to counsel, to be quite unarguable. Dr Fenwick himself accepted it as an accurate description of the appellants mental state in the post-ictal stage of a seizure. The audience to whom the phrase in the MNaghten Rules was addressed consisted of peers of the realm in the 1840s when a certain orotundity of diction had not yet fallen out of fashion. Addressed to an audience of jurors in the 1980s it might more aptly be expressed as: he did not know what he was doing. My Lords, it is natural to feel reluctant to attach the label of insanity to a sufferer from psychomotor epilepsy of the kind to which the appellant was subject, even though the expression in the context of a special verdict of not guilty by reason of insanity is a technical one which includes a purely temporary and intermittent suspension of the mental faculties of reason, memory and understanding resulting from the occurrence of an epileptic fit. But the label is contained in the current statute, it has appeared in this statutes predecessors ever since 1800. It does not lie within the power of the courts to alter it. Only Parliament can do that. It has done so twice; it could do so once again. Sympathise though I do with the appellant, I see no other course open to your Lordships than to dismiss this appeal. LORD SCARMAN. My Lords, I agree with the speech delivered by my noble and learned friend Lord Diplock. I would dismiss the appeal.

LORD LOWRY. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Diplock. I agree with his conclusions and, for the reasons which he gives, I would dismiss the appeal. LORD BRIDGE OF HARWICH. My Lords, for the reasons given in the speech of my noble and learned friend Lord Diplock, with which I fully agree, I too would dismiss this appeal. LORD BRANDON OF OAKBROOK. My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Diplock. I agree with it, and for the reasons which he gives I would dismiss the appeal. Order appealed from affirmed. Certified question answered in the affirmative. Appeal dismissed. Solicitors: Armstrong & Co, Forest Hill (for the appellant); D M OShea (for the Crown). Mary Rose Plummer Barrister.