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R v Sullivan [1983] 2 All ER 673

HOUSE OF LORDSLORD DIPLOCK, LORD SCARMAN, LORD LOWRY, LORD BRIDGE OF HARWICH ANDLORD BRANDON OF OAKBROOK20, 21 APRIL, 23 JUNE 1983

The defendant was charged with inflicting grievous bodily harm on P. At his trial headmitted 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 minorepileptic seizure. The undisputed medical evidence at the trial was that the effect onthe functioning of the brain of such a seizure was that the epileptic could have nomemory, 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 ofautomatism, and that if the jury accepted the defence they would be required to returnthe special verdict of not guilty by reason of insanity provided for in s 2(1)a of the Trialof Lunatics Act 1883, and that in consequence the judge would be required, by virtueof s 5(1)b of the Criminal Procedure (Insanity) Act 1964, to order the defendant to bedetained 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 erroneousin law and had deprived him of the opportunity of pleading the defence of automatismto the charge of inflicting grievous bodily harm which would have been likely to resultin an acquittal. The Court of Appeal upheld the judges ruling and dismissed theappeal. The defendant appealed to the House of Lords.

________________________________________a Section 2(1) provides: Where in any indictment or information any act or omission is chargedagainst any person as an offence, and it is given in evidence on the trial of such person for thatoffence that he was insane, so as not to be responsible, according to law, for his actions at the timewhen the act was done or omission made, then, if it appears to the jury before whom such personis 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 guiltyby reason of insanity.b Section 5(1), so far as material, provides: Where(a) a special verdict is returned thecourt shall make an order that the accused be admitted to such hospital as may be specified by theSecretary of State.

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


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as to have the consequence that the accused did not know what he was doing, or, if hedid, 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 inepilepsy, or functional, or whether the impairment itself was permanent or wastransient 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 protectsociety against recurrence of the dangerous state, no matter how temporary theduration of the suspension of faculties might be. It followed therefore that, if theoccurrence of an epileptic fit brought about a temporary suspension of the mentalfaculties of reason, memory and understanding during the course of which an offencewas 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 bgto 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 fromsome external physical factor such as a blow to the head causing concusssion or theadministration of an anaesthetic for therapeutic purposes (see p 678 bch 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 themisfortune to have been a lifelong sufferer from epilepsy. There was a period when hewas subject to major seizures known as grand mal but as a result of treatment which hewas receiving as an out-patient of the Maudsley Hospital from 1976 onwards, theseseizures had, by the use of drugs, been reduced by 1979 to seizures of less severityknown as petit mal, or psychomotor epilepsy, though they continued to occur at afrequency of one or two per week.

One such seizure occurred on 8 May 1981, when the appellant, then aged 51, wasvisiting 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 ofhis, a Mr Payne aged 80, when the epileptic fit came on. It appears likely from theexpert medical evidence about the way in which epileptics behave at the various stagesof a petit mal seizure that Mr Payne got up from the chair to help the appellant. Theonly evidence of an eye-witness was that of Mrs Killick, who did not see what hadhappened before she saw Mr Payne lying on the floor and the appellant kicking himabout 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 wasof causing grievous bodily harm with intent, contrary to s 18 of the Offences againstthe Person Act 1861; the second was of causing grievous bodily harm, contrary to s 20of the Act. At his trial, which took place at the Central Criminal Court before hisHonour 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 bodywas undisputed and the appellant himself gave evidence of his history of epilepsy andhis absence of all recollection of what had occurred at Mrs Killicks flat between thetime that he was chatting peacefully to Mr Payne there and his returning to the flatfrom 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 cross-examination.


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Counsel for the appellant wanted to rely on the defence of automatism or, asViscount Kilmuir LC had put in Bratty v A-G for Northern Ireland[1961] 3 All ER523 at 530, [1963] AC 386 at 405, non-insane automatism, that is to say that he hadacted unconsciously and involuntarily in kicking Mr Payne, but that when doing so hewas 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 s5 of the Criminal Procedure (Insanity) Act 1964. As was decided unanimously by thisHouse in Brattys case, before a defence of non-insane automatism may properly beleft to the jury some evidential foundation for it must first be laid. The evidentialfoundation that counsel laid before the jury in the instant case consisted of thetestimony of two distinguished specialists from the neuropsychiatry epilepsy unit at theMaudsley Hospital, Dr Fenwick and Dr Taylor, as to the pathology of the variousstages of a seizure due to psychomotor epilepsy. Their expert evidence, which was notdisputed by the prosecution, was that the appellants acts in kicking Mr Payne had allthe 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 actsof 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 besufficiently 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 fewseconds, 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 tomake movements which he is not conscious that he is making, including, and this wasa characteristic of previous seizures which the appellant had suffered, automaticmovements of resistence to anyone trying to come to his aid. These movements ofresistence 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 torule 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 toreturn a special verdict of not guilty by reason of insanity. The judge ruled that the juryshould be so directed.

After this ruling, the appellant, on the advice of his counsel and with the consent ofthe 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 ofthat offence, for which the judge sentenced him to three years probation subject to thecondition 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 thejudges ruling has been canvassed in this House, nor was it canvassed in the Court ofAppeal to which an appeal was brought on the ground that the judge ought to have leftto the jury the defence of non-insane automatism which, if accepted by them, wouldhave entitled the appellant to a verdict of not guilty. In these circumstances the presentcase does not appear to be one in which it would be appropriate for this House to enterinto 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 comebefore 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 oflaw of general public importance was involved in the decision, namely:


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Whether a person who is proved to have occasioned, contrary to section 47 ofthe Offences against the Person Act 1861, actual bodily harm to another, whilstrecovering from a seizure due to psychomotor epilepsy and who did not knowwhat 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 thepre-1843 position. In that year, following the acquittal of one Daniel MNaghten forshooting 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 debatein 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 Personscharged with Offences, which referred to persons who were insane at the time of thecommission 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 subjectof insanity as a defence to criminal charges. The answer to the second and third ofthese questions combined was given by Tindal CJ on behalf of all the judges, exceptMaule J, and constituted what became known as the MNaghten Rules. The judgesanswer 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 tobe sane, and to possess a sufficient degree of reason to be responsible for hiscrimes, until the contrary be proved to their satisfaction; and that to establish adefence on the ground of insanity, it must be clearly proved that, at the time ofthe committing of the act, the party accused was labouring under a defect ofreason, from disease of the mind, as not to know the nature and quality of the acthe was doing; or, if he did know it, that he did not know he was doing what waswrong.

Although the questions put to the judges by the House of Lords referred to insanedelusions of various kinds, the answer to the second and third questions (theMNaghten Rules) is perfectly general in its terms. It is stated to be applicable in allcases in which it is sought to establish a defence on the ground of insanity. Thisanswer was intended to provide a comprehensive definition of the various matterswhich 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 theaccused to have been insane at the time that he committed the acts with which he ischarged, to bring in a verdict neither of guilty nor of not guilty but a special verdict theterms of which have been varied under three successive statutes, but are currently notguilty by reason of insanity.

The MNaghten Rules have been used as a comprehensive definition for this purposeby the courts for the last 140 years. Most importantly, they were so used by this Housein Brattys case. That case was in some respects the converse of the instant case. Brattywas charged with murdering a girl by strangulation. He claimed to have beenunconscious 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 evidentialfoundation that he laid for either of these pleas was medical evidence that he might


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have been suffering from psychomotor epilepsy which, if he were, would account forhis having been unconscious of what he was doing. No other pathological explanationof his actions having been carried out in a state of automatism was supported byevidence. The trial judge first put the defence of insanity to the jury. The jury rejectedit; 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 CriminalAppeal of Northern Ireland and subsequently by this House.

The question before this House was whether, the jury having rejected the plea ofinsanity, there was any evidence of non-insane automatism fit to be left to the jury. Theratio decidendi of its dismissal of the appeal was that the jury having negatived theexplanation that Bratty might have been acting unconsciously in the course of an attackof psychomotor epilepsy, there was no evidential foundation for the suggestion that hewas acting unconsciously from any other cause.

In the instant case, as in Brattys case, the only evidential foundation that was laidfor any finding by the jury that the appellant was acting unconsciously andinvoluntarily 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 thecase of Bratty, that he was suffering from psychomotor epilepsy at the time he did theact with which he was charged, was very weak and was rejected by the jury; theevidence in the appellants case, that he was so suffering when he was kicking MrPayne, 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 thatevidence the law required them to bring in a special verdict and none other. Thegoverning statutory provision is to be found in s 2 of the Trial of Lunatics Act 1883.This says the jury shallreturn a special verdict.

My Lords, I can deal briefly with the various grounds on which it has been submittedthat 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 allthe doctors that it was. The only evidential basis for this submission is that Dr Fenwicksaid 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 brainfunctions (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 haveit that the disorder must continue for a minimum of a month to qualify for thedescription 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 asthe cause of a defect of reason remains unchanged for the purposes of the applicationof the MNaghten Rules. I agree with what was said by Devlin J in R v Kemp [1956] 3All ER 249 at 253, [1957] 1 QB 399 at 407 that mind in the MNaghten Rules is usedin the ordinary sense of the mental faculties of reason, memory and understanding. Ifthe effect of a disease is to impair these faculties so severely as to have either of theconsequences referred to in the latter part of the rules, it matters not whether theaetiology of the impairment is organic, as in epilepsy, or functional, or whether theimpairment itself is permanent or is transient and intermittent, provided that itsubsisted 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 societyagainst recurrence of the dangerous conduct. The duration of a temporary suspension


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of the mental faculties of reason, memory and understanding, particularly if, as in theappellants case, it is recurrent, cannot on any rational ground be relevant to theapplication by the courts of the MNaghten Rules, though it may be relevant to thecourse adopted by the Secretary of State, to whom the responsibility for how thedefendant 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 thetemporary and intermittent impairment of the mental faculties was arteriosclerosis, I donot regard that judge as excluding the possibility of non-insane automatism, for whichthe proper verdict would be a verdict of not guilty, in cases where temporaryimpairment not being self-induced by consuming drink or drugs, results from someexternal physical factor such as a blow on the head causing concussion or theadministration of an anaesthetic for therapeutic purposes. I mention this because in R vQuick[1973] 3 All ER 347, [1973] QB 910 Lawton LJ appears to have regarded theruling 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 wasalluded to without disapproval by Viscount Kilmuir LC and received the expressapproval of Lord Denning. The instant case, however, does not in my view afford anappropriate occasion for exploring possible causes of non-insane automatism.

The only other submission in support of the appellants appeal which I think itnecessary to mention is that, because the expert evidence was to the effect that theappellants acts in kicking Mr Payne were unconscious and thus involuntary in thelegal sense of that term, his state of mind was not one dealt with by the MNaghtenRules at all, since it was not covered by the phrase as not to know the nature andquality of the act he was doing. Quite apart from being contrary to all three speechesin this House in Brattys case, the submission appears to me, with all respect tocounsel, to be quite unarguable. Dr Fenwick himself accepted it as an accuratedescription of the appellants mental state in the post-ictal stage of a seizure. Theaudience to whom the phrase in the MNaghten Rules was addressed consisted of peersof the realm in the 1840s when a certain orotundity of diction had not yet fallen out offashion. Addressed to an audience of jurors in the 1980s it might more aptly beexpressed 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 suffererfrom psychomotor epilepsy of the kind to which the appellant was subject, eventhough the expression in the context of a special verdict of not guilty by reason ofinsanity is a technical one which includes a purely temporary and intermittent

suspension of the mental faculties of reason, memory and understanding resulting fromthe occurrence of an epileptic fit. But the label is contained in the current statute, it hasappeared in this statutes predecessors ever since 1800. It does not lie within the powerof the courts to alter it. Only Parliament can do that. It has done so twice; it could do soonce again.

Sympathise though I do with the appellant, I see no other course open to yourLordships than to dismiss this appeal.

LORD SCARMAN. My Lords, I agree with the speech delivered by my noble andlearned friend Lord Diplock. I would dismiss the appeal.


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LORD LOWRY. My Lords, I have had the advantage of reading in draft the speechprepared by my noble and learned friend Lord Diplock. I agree with his conclusionsand, for the reasons which he gives, I would dismiss the appeal.

LORD BRIDGE OF HARWICH. My Lords, for the reasons given in the speech ofmy noble and learned friend Lord Diplock, with which I fully agree, I too woulddismiss this appeal.

LORD BRANDON OF OAKBROOK. My Lords, I have had the advantage ofreading in draft the speech prepared by my noble and learned friend Lord Diplock. Iagree 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 theCrown).

Mary Rose Plummer Barrister.

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