92

Reg. v. Telford JJ., Ex p. Badhan (D.C.) [1991]

English, but the tenor of the applicant's remarks is salacious. However, \
we cannot find in the conversation anything which is capable of being
corroborative of the alleged offence by the applicant.
A consideration of the committal papers, which tell us of the
circumstances of the case, and of the period of between 15 and 16 years,
leave us in no doubt that this is a case where we should infer prejudice
and conclude that a fair trial would not now be possible. The justices
were wrong in focusing upon the justifiability of delaying the complaint. "
They should have asked whether a fair trial would be possible.
In the event that we were against him on both jurisdiction and merit,
Mr. Collins did not ask that we should quash and remit as we could do.
He was content that an order of prohibition should go as asked.
Accordingly, there will be an order prohibiting the Telford justices from
further proceeding with those committal proceedings against the applicant Q
which are referred to in his notice of motion.
Application allowed with costs.
Solicitors: Murria Solicitors, Birmingham; Crown Prosecution Service,
Headquarters.
D
[Reported by JILL CARLEN, Barrister]
E
[COURT OF APPEAL]
REGINA v. BURGESS
F
1991 March 11; 27 Lord Lane C.J., Roch and Morland JJ.
CrimeInsanityAutomatismDefence of lack of intent and non-insane
automatism during sleep walkingJudge's ruling that medical evidence
indicating insanity within M'Naghten RulesWhether correctTrial
of Lunatics Act 1883 (46 & 47 Vict. c. 38), s. 2(1) (as amended by
Criminal Procedure (Insanity) Act 1964 (c. 84), s. 1) Q
The appellant was tried on a count of wounding with intent to
do grievous bodily harm, contrary to section 18 of the Offences
against the Person Act 1861. His defence was that he lacked the
necessary intent, in that, during undisputed violence to the victim,
he was sleep walking and suffering from non-insane automatism.
Expert medical evidence was called by the prosecution and the
defence. The judge, on the assumption that the appellant was H
unconscious at the time of his acts, ruled that the medical evidence
adduced concerning automatism amounted to evidence of insanity
within the M'Naghten Rules and was not merely evidence of non-
insane automatism. The jury found the appellant not guilty by reason
93
2 Q.B. Reg. v. Burgess (C.A.)
^Y of insanity, in accordance with section 2(1) of the Trial of Lunatics
Act 1883, as amended.'
On appeal against the verdict, on the ground that the judge had
erred in his ruling:
Held, dismissing the appeal, that on a defence of automatism,
the judge had to decide, first, whether a proper evidential foundation
had been laid for the defence and, second, whether the evidence
showed the case to be one of insane automatism within the
B M'Naghten Rules, or one of non-insane automatism; that the judge
had undertaken that task and, in the light of the medical evidence,
had been right to conclude that the appellant's state was an
abnormality or disorder which, albeit transitory and unlikely to recur
in the form of serious violence, was due to an internal factor, whether
functional or organic, had manifested itself in violence and might
recur, and therefore amounted to a "disease of the mind;" and that,
r
accordingly, the judge's ruling had been correct (post, pp. 96B-D,
^ 101G-H).
Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386,
H.L.(N.L) applied.
Reg. v. Sullivan [1984] A.C. 156, H.L.(E.) considered.
Per curiam, (i) A danger of recurrence of a mental disorder
manifesting itself in violence may be an added reason for categorising
the condition as a disease of the mind but the absence of such danger
D is not a reason for saying that it cannot be a disease of the mind
(post, p. 99G-H).
(ii) Attention is drawn to the apparent incongruity of labelling
such a disability as insanity (post, p. 102A-B).
The following cases are referred to in the judgment:
Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386; [1961] 3 W.L.R.
E 965; [1961] 3 All E.R. 523, H.L.(N.L)
M'Naghten's Case (1843) 10 CI. & Fin. 200, H.L.(E.)
Rabey v. The Queen [1980] 2 S.C.R. 513
Reg. v. Kemp [1957] 1 Q.B. 399; [1956] 3 W.L.R. 724; [1956] 3 All E.R. 249
Reg. v. Parks (1990) 56 C.C.C. (3d) 449
Reg. v. Sullivan [1984] A.C. 156; [1983] 3 W.L.R. 123; [1983] 2 All E.R. 673,
H.L.(E.)
F
The following additional cases were cited in argument:
Cooper v. The Queen (1980) 110 D.L.R. (3d) 46
H.M. Advocate v. Cunningham, 1963 J.C. 80
Reg. v. Hennessy [1989] 1 W.L.R. 287; [1989] 2 All E.R. 9, C.A.
Reg. v. Parnerkar (1971) 5 C.C.C. (2d) 11
Reg. v. Quick [1973] Q.B. 910; [1973] 3 W.L.R. 26; [1973] 3 All E.R. 347, C.A.
G Rex v. Porter (1933) 55 C.L.R. 182
APPEAL against verdict of not guilty by reason of insanity.
The appellant, Barry Douglas Burgess, in the Crown Court at Bristol
before Judge Sir Ian Lewis and a jury, on 11 to 14 and 17 to 20 July 1989,
was tried on an indictment containing two counts. Count 1 charged that he
TT on 2 June 1988 at Kingswood in the County of Avon unlawfully and
maliciously did wound Katrina Curtis with intent to cause grievous bodily
harm, contrary to section 18 of the Offences against the Person Act 1861 (24
1
Trial of Lunatics Act 1883 (as amended), s. 2(1): see post, p. 97C-D.
94
Reg. v. Burgess (C.A.) [1991]
& 25 Vict. c. 100); and count 2 charged him with unlawfully and maliciously A
wounding her, contrary to section 20 of the Act of 1861. The defence was
that the appellant, who did not dispute attacking the victim, had lacked mens
rea in that he had been sleep walking and suffering from non-insane
automatism. Medical evidence was called by the Crown of Dr. Peter B. C.
Fenwick, consultant neuropsychiatrist, and by the defence of Dr. P. T.
d'Orban, consultant forensic psychiatrist, Dr. Michael Nicholas, consultant
psychiatrist, and Dr. Peter Eames, consultant neuropsychiatrist. A ruling by "
the judge precluded the appellant from raising a defence of automatism
without involving an issue of insanity. The jury returned a verdict of not
guilty by reason of insanity and, on 20 July 1989, in accordance with section
5 of the Criminal Procedure (Insanity) Act 1964, was ordered to be admitted
and detained in such hospital as directed by the Secretary of State. He
appealed against the verdict by certificate of the trial judge under section 12 Q
of the Criminal Appeal Act 1968, in the following terms:
"The [appellant] claimed that he did not know what he was doing
when he hit the victim, Miss Curtis, on the head first with a bottle that
broke, then with a video that was dented and finally when he grasped
her by the throat, because he was suffering from a sleep associated
disorder, namely, automatism in sleep walking. I ruled on the evidence ^.
that had been adduced that if the alleged mental condition existed it
amounted to a defect of reason by virtue of a disease of the mind within
the M'Naghten Rules. For the reasons I gave in the judgment I
accordingly ruled further that it must be left to the jury on the basis that
if they found the mental condition established on the balance of
probabilities they should return a verdict of not guilty by reason of
insanity and not a verdict of not guilty." E
The facts are stated in the judgment of the court.
Christopher Wilson-Smith Q.C. and B. N. O'Brien (assigned by the
Registrar of Criminal Appeals) for the appellant. There is no authoritative
decision of an English court on somnambulism, automatism, as being insanity.
p
It should not be so considered. The point has been considered in textbooks
and, obiter, in authorities and there is a Canadian authority, Reg. v. Parks
(1990) 56 C.C.C. (3d) 449, directly in point. The thrust of the appellant's
case is that, although there plainly was a disturbance of the brain function, it
was not caused by a disease of the mind. Therefore, he should have been
allowed to run the defence of non-insane automatism and to take a verdict
from the jury on that defence. G
Authorities have considered the question of insanity where there has been
a defect in the mind or brain malfunction due to disease of the mind. They
are all cases where there is a medical disability in addition to a brain function
loss, such as psychomotor epilepsy and diabetes: see Bratty v. Attorney-
General for Northern Ireland [1963] A.C. 386; Reg. v. Sullivan [1984] A.C.
156; Reg. v. Quick [1973] Q.B. 910; Reg. v. Hennessy [1989] 1 W.L.R. 287
and Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), pp. 669-
671. No authority deals with the situation where there is no medical condition
independently of the brain loss, subject to Reg. v. Parks, 56 C.C.C. (3d)
449, which is on all fours with the present appeal.
95
2 Q.B. Reg. v. Burgess (C.A.)
A R- N. Titheridge Q.C. and Stanley Cartledge for the Crown. The appellant
suffered from an abnormal state of mind and, therefore, it matters not how
it arose. What doctors regard as a disease of the mind is of importance as a
matter of evidence but is different from the legal concept.
Possibility of recurrance is a relevant factor and is the basis for making
an order of commitment but is not necessarily decisive. It is important to
distinguish between purposive conduct and conduct which is purely automatic:
B see Smith & Hogan, Criminal Law, 6th ed. (1988), p. 189, where reference
is made to internal and external factors. The authorities, particularly Reg. v.
Sullivan [1984] A.C. 156, clearly distinguish between internal and external
factors, a useful distinction without which the definition of disease of the
mind would be almost unworkable. A useful definition of disease of the mind
appears in Cooper v. The Queen (1980) 110 D.L.R. (3d) 46,61: "In summary,
Q one might say that in a legal sense 'disease of the mind' embraces any illness,
disorder or abnormal condition which impairs the human mind and its
functioning, excluding however, self-induced states caused by alcohol or
drugs, as well as transitory mental states such as hysteria or concussion."
Reg. v. Parks, 56 C.C.C. (3d) 449 was decided on the curious and perhaps
illogical basis that, on the evidence, the accused was experiencing a disorder
of sleep or was in an abnormal condition, and that that did not cause
D impairment of his faculties. The court accepted that, if causation were
established, the defence of insanity would have had to have been left to the
jury: see Rabey v. The Queen [1980] 2 S.C.R. 513; Reg. v. Pamerkar (1972)
5 C.C.C. (2d) 11 and Rex v. Porter (1933) 55 C.L.R. 182.
H.M. Advocate v. Cunningham, 1963 J.C. 80 carries the matter no
further. It is important to examine the medical evidence in every individual
p case. The judge has to rule whether the medical evidence shows disease of
the mind or not. There may be cases where the evidence is so in conflict that
the judge has to leave to the jury the possibility that they would find that
there is insanity or non-insane automatism. Such cases are very rare and, as
a matter of policy, should be avoided unless the evidence clearly shows that
there is such a distinction, because this is an area where any jury is bound to
have difficulty.
F Wilson-Smith replied.
Cur. adv. vult.
27 March. LORD LANE C.J. read the following judgment of the court.
Q On 20 July 1989 in the Crown Court at Bristol before Judge Sir Ian Lewis
and a jury, the appellant was found not guilty by reason of insanity on a
charge of wounding with intent. He was ordered to be admitted and detained
in such hospital as the Secretary of State should direct. He now appeals
against that verdict by certificate of the trial judge under section 12 of the
Criminal Appeal Act 1968.
The appellant did not dispute the fact that in the early hours of 2 June
" 1988 he had attacked Katrina Curtis by hitting her on the head first with a
bottle when she was asleep, then with a video recorder and finally grasping
her round the throat. She suffered a gaping three centimetre laceration to
her scalp requiring sutures.
96
Reg. v. Burgess (C.A.) [1991]
His case was that he lacked the mens rea necessary to make him guilty of A
the offence, because he was "sleep walking" when he attacked Miss Curtis.
He was, it was alleged, suffering from "non-insane" automatism and he called
medical evidence, in particular from Dr. d'Orban and Dr. Eames to support
that contention.
The prosecution on the other hand contended that this was not a case of
automatism at all, but that the appellant was conscious of what he was doing.
If, contrary to that contention, he was not conscious of what he was doing, "
then the case fell within the M'Naghten Rules (see M'Naghten's Case (1843)
10 CI. & Fin. 200), and accordingly the verdict should be not guilty by reason
of insanity. The prosecution called an equally eminent expert in the shape of
Dr. Fenwick.
Where the defence of automatism is raised by a defendant, two questions
fall to be decided by the judge before the defence can be left to the jury. Q
The first is whether a proper evidential foundation for the defence of
automatism has been laid. The second is whether the evidence shows the
case to be one of insane automatism, that is to say, a case which falls within
the M'Naghten Rules, or one of non-insane automatism.
The judge in the present case undertook that task and on the second
question came to the conclusion thatassuming the appellant was not
conscious at the time of what he was doingon any view of the medical D
evidence so far as automatism was concerned, it amounted to evidence of
insanity within the M'Naghten Rules and not merely to evidence of non-
insane automatism. The sole ground of appeal is that that ruling was wrong.
The jury then had to decide on the basis of the judge's direction, which
of course followed his ruling, whether the appellant was conscious when he
struck Miss Curtis, in which case the verdict would be guilty, or whether he g
was not guilty by reason of insanity. As already indicated, they came to the
latter conclusion.
The facts require setting out in a little more detail. Miss Curtis occupied
the flat immediately above that of the appellant. The two were on friendly
terms. They were in the habit of watching video tapes together in her flat.
She realised that the appellant was probably in love with her. She did not
wish to allow their relationship to develop beyond mere friendship. The F
appellant was then 32 years of age. He was sexually inexperienced and of a
somewhat solitary disposition. He had always behaved impeccably towards
her and had made no physical advances. He had hopes that her friendship
towards him might develop into something deeper.
On the evening in question the appellant came up to her flat with the
video tapes. They had one glass of Martini each. There is no suggestion of Q
any intoxication. Having watched one video tape, she fell asleep on the sofa.
The next thing she knew was that something hard had hit her on the head.
This must have been about one to one and a half hours later, so it seems.
She woke up, dazed, to find herself surrounded by broken glass and
confronted by the appellant with the video recorder held up high, clearly
intending to bring it down on her head, which he did. He was speaking
loudly. He seemed vicious and angryquite out of character. She fell to the "
floor, whereupon he put a hand round her throat. With great presence of
mind, she managed to say "I love you Bar," whereupon he appeared to come
to his senses and to show great anxiety for what he had done. He later
97
2 Q.B. Reg. v. Burgess (C.A.)
A telephoned for an ambulance. It seems that he must have unplugged the
video recorder detaching the various leads and then carried it round to where
Miss Curtis lay.
He gave evidence at the trial. He said he was not conscious of bottling
up or repressing his feelings for Miss Curtis. He, like her, had fallen
asleep. He remembered waking up, coming into focus and feeling confused.
It then dawned on him that he was holding Miss Curtis down on the floor.
He had no memory of hitting her at all, either with the bottle or with the
video recorder. He had run away after the incident and had driven round
the countryside. During that period he wrote three letters to her, stating
that he did not know what he was doing when he attacked her. He must
have had a black-out. He did not wish to continue living. In one of the
notes he wrote "God forgive me, Tina . . . I must have had some kind of
C black-out or a fit. I have known for some time that I was heading for some
sort of breakdown."
By section 2 of the Trial of Lunatics Act 1883 (as amended by section 1
of the Criminal Procedure (Insanity) Act 1964):
"(1) Where in any indictment or information any act or omission is
charged against any person as an offence, and it is given in evidence
D 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
F
accused is not guilty by reason of insanity."
The material part of the M'Naghten Rules reads as follows, 10 CI. &
Fin. 200:
"the jurors ought to be told that every man is 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
F to establish a defence on the ground of insanity, it must be clearly
proved that, at the time of committing the act the party accused was
labouring under such a defect of reason, from disease of the mind, as
not to know the nature and quality of the act he was doing, or, as not
to know that what he was doing was wrong."
Q The reason for the finding of not guilty in these circumstances is of
course the absence of the intent which must be proved to accompany the
defendant's actions before guilt can be established. What the law regards
as insanity for the purpose of these enactments may be far removed from
what would be regarded as insanity by a psychiatrist.
There can be no doubt but that the appellant, on the basis of the jury's
verdict, was labouring under such a defect of reason as not to know what
" he was doing when he wounded Miss Curtis. The question is whether that
was from "disease of the mind." The first point that has to be understood
is that the phrase is "disease of the mind" and not "disease of the brain."
Devlin J. said in Reg. v. Kemp [1957] 1 Q.B. 399, 407:
2 Q.B. 1991-4
98
Reg. v. Burgess (C.A.) [1991]
"The law is not concerned with the brain but with the mind, in the A
sense that 'mind' is ordinarily used, the mental faculties of reason,
memory and understanding. If one read for 'disease of the mind'
'disease of the brain,' it would follow that in many cases pleas of
insanity would not be established because it could not be proved that
the brain had been affected in any way, either by degeneration of the
cells or in any other way. In my judgment the condition of the brain is
irrelevant and so is the question of whether the condition of the mind
is curable or incurable, transitory or permanent. There is no warranty
for introducing those considerations into the definition in the
M'Naghten Rules. Temporary insanity is sufficient to satisfy them. It
does not matter whether it is incurable and permanent or not."
The appellant plainly suffered from a defect of reason from some sort
of failure (for lack of a better term) of the mind causing him to act as he
did without conscious motivation. His mind was to some extent controlling
his actions which were purposive rather than the result simply of muscular
spasm, but without his being consciously aware of what he was doing. Can
it be said that that "failure" was a disease of the mind rather than a defect
or failure of the mind not due to disease? That is the distinction, by no
means always easy to draw, upon which this case depends, as others have D
depended in the past.
One can perhaps narrow the field of inquiry still further by eliminating
what are sometimes called the "external factors" such as concussion caused
by a blow on the head. There were no such factors here. Whatever the
cause may have been, it was an "internal" cause. The possible
disappointment or frustration caused by unrequited love is not to be
equated with something such as concussion. On this aspect of the case, we
respectfully adopt what was said by Martin J. and approved by a majority
in the Supreme Court of Canada in Rabey v. The Queen [1980] 2 S.C.R.
513, 519, 520 (where the facts bore a similarity to those in the instant case
although the diagnosis was different):
"Any malfunctioning of the mind or mental disorder having its source
primarily in some subjective condition or weakness internal to the F
accused (whether fully understood or not) may be a 'disease of the
mind' if it prevents the accused from knowing what he is doing, but
transient disturbances of consciousness due to certain specific external
factors do not fall within the concept of disease of the mind . . . In
my view, the ordinary stresses and disappointments of life which are
the common lot of mankind do not constitute an external cause Q
constituting an explanation for a malfunctioning of the mind which
takes it out of the category of a 'disease of the mind.' To hold
otherwise would deprive the concept of an external factor of any real
meaning."
This distinction between "internal" and "external" factors appears in
the speech of Lord Diplock in Reg. v. Sullivan [1984] A.C. 156, where he H
said, at p. 172:
"I agree with what was said by Devlin J. in Reg. v. Kemp [1957] 1
Q.B. 399, 407, that 'mind' in the M'Naghten Rules is used in the
99
2 Q.B. Reg. v. Burgess (C.A.)
A 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 1800, 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 Mr. Sullivan's case, it is recurrent, cannot on any rational ground
be relevant to the application by the courts of the M'Naghten Rules,
Q 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 Kemp,
where the disease that caused the temporary and intermittent
D impairment of the mental faculties was arteriosclerosis, I do not regard
that learned 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."
What help does one derive from the authorities as to the meaning of
"disease" in this context? Lord Denning in Bratty v. Attorney-General for
Northern Ireland [1963] A.C. 386, 412 said:
"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
F 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 [1955] 1 W.L.R. 317,
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 manifested 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 seems to us that if there is a danger of recurrence that may be an
added reason for categorising the condition as a disease of the mind. On
the other hand, the absence of the danger of recurrence is not a reason for
saying that it cannot be a disease of the mind. Subject to that possible
qualification, we respectfully adopt Lord Denning's suggested definition.
There have been several occasions when during the course of judgments
in the Court of Appeal and the House of Lords observations have been
100
Reg. v. Burgess (C.A.) [1991]
made, obiter, about the criminal responsibility of sleep walkers, where A
sleep walking has been used as a self-evident illustration of non-insane
automatism. For example in the speech of Lord Denning, from which we
have already cited an extract, appears this passage, at p. 409:
"No act is punishable if it is done involuntarily: and an involuntary act
in this contextsome people nowadays prefer to speak of it as
'automatism'means an act which is done by the muscles without any g
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 C
would not know what he was doing.'"
We have also been referred to a Canadian decision, Reg. v. Parks
(1990) 56 C.C.C. (3d) 449. In that case the defendant was charged with
murder. The undisputed facts were that he had, whilst according to him he
was asleep, at night driven his motor car some 23 kilometres to the house
of his wife's parents where he had stabbed and beaten both his mother-in- D
law and his father-in-law. His mother-in-law died as a result and his father-
in-law sustained serious injuries. A number of defence witnesses, including
experts in sleep disorders, gave evidence to the effect that sleep walking is
not regarded as a disease of the mind, mental illness or mental disorder,
and the trial judge directed the jury that if the accused was in a state of
somnambulism at the time of the killing, then he was entitled to be g
acquitted on the basis of non-insane automatism. The defendant was
acquitted of the murder of his mother-in-law and subsequently acquitted of
the attempted murder of his father-in-law.
The Crown appealed from the accused's acquittal and it was held by
the Ontario Court of Appeal that the appeal should be dismissed. The
court concluded that sleep is a normal condition and "the impairment of
the respondent's faculties of reason, memory and understanding was caused F
not by any disorder or abnormal condition but by a natural, normal
conditionsleep:" pp. 465-466.
We accept of course that sleep is a normal condition, but the evidence
in the instant case indicates that sleep walking, and particularly violence in
sleep, is not normal. We were told that Reg. v. Parks is to be taken to the
Supreme Court of Canada. That case apart, in none of the other cases ^
where sleep walking has been mentioned, so far as we can discover, has
the court had the advantage of the sort of expert medical evidence which
was available to the judge here.
One turns then to examine the evidence upon which the judge had to
base his decision and for this purpose the two medical experts called by the
defence are the obvious principal sources. Dr. d'Orban in examination-in-
chief said: H
"On the evidence available to me, and subject to the results of the
tests when they became available, I came to the same conclusion as
Dr. Nicholas and Dr. Eames whose reports I had read, and that was
101
2 Q.B. Reg. v. Burgess (C.A.)
A that Mr. Burgess's actions had occurred during the course of a sleep
disorder."
He was asked, "Assuming this is a sleep associated automatism, is it an
internal or external factor?" Answer: "In this particular case, I think that
one would have to see it as an internal factor."
Then in cross-examination: Question: "Would you go so far as to say
B that it was liable to recur?" Answer: "It is possible for it to recur, yes."
Finally, in answer to a question from the judge, namely, "Is this a case of
automatism associated with a pathological condition or not?" Answer: "I
think the answer would have to be yes, because it is an abnormality of the
brain function, so it would be regarded as a pathological condition."
Dr. Eames in cross-examination agreed with Dr. d'Orban as to the
internal rather than the external factor. He accepted that there is a liability
C to recurrence of sleep walking. He could not go so far as to say that there
is no liability of recurrence of serious violence but he agreed with the other
medical witnesses that there is no recorded case of violence of this sort
recurring.
The prosecution, as already indicated, called Dr. Fenwick, whose
opinion was that this was not a sleep walking episode at all. If it was a case
rj where the appellant was unconscious of what he was doing, the most likely
explanation was that he was in what is described as an hysterical dissociative
state. That is a state in which, for psychological reasons, such as being
overwhelmed by his emotions, the person's brain works in a different way.
He carries out acts of which he has no knowledge and for which he has no
memory. It is quite different from sleep walking. He then went on to
describe features of sleep walking. This is what he said:
E
"Firstly, violent acts in sleep walking are very common. In just an
exposure of one day to a sleep walking clinic, you will hear of how
people are kicked in bed, hit in bed, partially strangledit is usually
just arms round the neck, in bed, which is very common. Serious
violence fortunately is rare. Serious violence does recur, or certainly
the propensity for it to recur is there, although there are very few
F cases in the literaturein fact I know of nonein which somebody
has come to court twice for a sleep walking offence. This does not
mean that sleep walking violence does not recur; what it does mean is
that those who are associated with the sleeper take the necessary
precautions. Finally, should a person be detained in hospital? The
answer to that is: Yes, because sleep walking is treatable. Violent
night terrors are treatable. There is a lot which can be done for the
sleep walker, so sending them to hospital after a violent act to have
their sleep walking sorted out, makes good sense."
Dr. Fenwick was also of the view that in certain circumstances hysterical
dissociative states are also subject to treatment.
It seems to us that on this evidence the judge was right to conclude
that this was an abnormality or disorder, albeit transitory, due to an
internal factor, whether functional or organic, which had manifested itself
in violence. It was a disorder or abnormality which might recur, though the
possibility of it recurring in the form of serious violence was unlikely.
Therefore since this was a legal problem to be decided on legal principles,
102
Reg. v. Burgess (C.A.) [1991]
it seems to us that on those principles the answer was as the judge found it A
to be. It does however go further than that. Dr. d'Orban, as already
described, stated it as his view that the condition would be regarded as
pathological. Pathology is the science of diseases. It seems therefore that in
this respect at least there is some similarity between the law and medicine.
The judge was alive to the apparent incongruity of labelling this sort of
disability as insanity. He drew attention, as we would also wish to do, to
the passage of the speech of Lord Diplock in Reg. v. Sullivan [1984] A.C.
156, where he said, at p. 173:
"it is natural to feel reluctant to attach the label of insanity to a
sufferer from psychomotor epilepsy of the kind to which Mr. Sullivan
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 C
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 statute's 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."
D
This appeal must accordingly be dismissed.
Appeal dismissed.
Application for certificate under section
33(2) of the Criminal Appeal Act
1968 adjourned. _
Solicitors: Crown Prosecution Service, Bristol.
L. N. W.
F
G
H