*287 Regina v Hennessy

Court of Appeal

27 January 1989

[1989] 1 W.L.R. 287

Lord Lane C.J., Rose and Pill JJ.

1989 Jan. 27

CrimeInsanityAutomatismOffences committed by diabetic in hyperglycaemic stateClaim of

stress anxiety and depression contributing to automatismWhether external factorsWhether
state of mind prone to recurWhether capable in law of causing or contributing to state of
automatism

The appellant, who was an insulin-dependent diabetic and had not taken insulin and had not eaten
for several days, sought to raise a defence of automatism, in that the offences with which he was
charged were committed during a state of hyperglycaemia caused or contributed to by stress,
anxiety and depression. The trial judge ruled that the appellant's alleged state of mind was caused
by disease, namely, diabetes, so that he had no defence of automatism. The appellant, thereupon,
pleaded guilty.

On appeal against conviction, on the ground that the stress, anxiety and depression were external
factors within the meaning of dicta in Reg. v. Quick [1973] Q.B. 910, 922, which had caused or
contributed to his state of mind, so that the ruling erred and his defence should have been left to
the jury:

Held, dismissing the appeal, that external factors could *288 undoubtedly result in stress, anxiety
and depression; but that stress, anxiety and depression were not in themselves, separately or
together, external factors of the kind capable in law of causing or contributing to a state of
automatism, for they constituted a state of mind prone to recur and lacking the features of novelty
or accident; and that, therefore, the trial judge's ruling was correct (post, p. 294CF).

M'Naghten's Case (1843) 10 Cl. & Fin. 200 applied.

Reg. v. Quick [1973] Q.B. 910, C.A. and Reg. v. Sullivan [1984] A.C. 156, H.L.(E.) considered.

The following cases are referred to in the judgment:

Hill v. Baxter [1958] 1 Q.B. 277; [1958] 2 W.L.R. 76; [1958] 1 All E.R. 193, D.C.

M'Naghten's Case (1843) 10 Cl. & Fin. 200; sub nom. McNaughton's Case, 4 State Tr. (N.S.) 847,
H.L.(E.)

Reg. v. Bailey (John) [1983] 1 W.L.R. 760; [1983] 2 All E.R. 503, CA

Reg. v. Kemp [1957] 1 Q.B. 399; [1956] 3 W.L.R. 724; [1956] 3 All E.R. 249

Reg. v. Quick [1973] Q.B. 910; [1973] 3 W.L.R. 26; [1973] 3 All E.R. 347, C.A.

Reg. v. Sullivan [1984] A.C. 156; [1983] 3 W.L.R. 123; [1983] 2 All E.R. 673, H.L.(E.)

No additional cases were cited in argument.

APPEAL against conviction.

The appellant, Andrew Michael Hennessy, in the Crown Court at Lewes, before Judge Birks and a
jury, on 14 January 1988, pleaded not guilty to an indictment containing two counts; count 1
charged taking a conveyance without authority, contrary to section 12(1) of the Theft Act 1968;
count 2 charged driving whilst disqualified, contrary to section 99(b) of the Road Traffic Act 1972.
The appellant sought to raise a defence of non-insane automatism. At the close of evidence for the
defence, the trial judge ruled that any impairment of the appellant's mind could not have been
caused by anything other than diabetes from which he was a long-term sufferer. Thereupon the
appellant changed his plea to guilty. He was sentenced on count 1 to nine months' imprisonment
suspended for two years, on count 2 to six months' imprisonment, concurrent, suspended for two
years; he was disqualified for two years and his driving licence was endorsed. He appealed against
conviction on a certificate from the trial judge in the following terms:

The defendant, who is a diabetic, claimed that he did not know what he was doing when the
offence was committed because he was suffering from hyperglycaemia, having failed to take insulin
for some days. He sought to raise the defence of automatism. I rejected this on the ground that his
alleged mental condition, if it existed, was caused by disease, namely, diabetes.

The facts are stated in the judgment.

Representation

Timothy Owen (assigned by the Registrar of Criminal Appeals) for the appellant.

Bernard Phelvin for the Crown.

LORD LANE C.J.

gave the following judgment of the court. On 15 January 1988, on the second day of a trial in the
Crown Court at Lewes *289 before Judge Birks and a jury, following a ruling on the defence of non-
insane automatism, this appellant, Andrew Michael Hennessy, now 27 years of age, pleaded guilty
and was sentenced as follows: on count 1, for taking a conveyance without authority, nine months'
imprisonment suspended for two years; count 2, driving while disqualified, six months'
imprisonment to run concurrently, also suspended for two years. He was disqualified from holding
or obtaining a driving licence for two years and his driving licence was endorsed. Also a community
service order made in March 1988 was ordered to continue.

He now appeals against conviction by a certificate of the trial judge. The judge's certificate, to read it
somewhat out of chronological order, was as follows:

The defendant, who is diabetic, claimed that he did not know what he was doing when the offence
was committed because he was suffering from hyperglycaemia, having failed to take insulin for
some days. He sought to raise the defence of automatism. I rejected this on the ground that his
alleged mental condition, if it existed, was caused by disease, namely, diabetes.

The facts which gave rise to the charges, in so far as material, were these. On Thursday 25 May 1987,
two police constables, Barnes and Grace, were on duty in St. Leonards on the Sussex coast, amongst
other things looking for a Ford Granada car which had been stolen. They found the car. It was
unattended. They kept it under watch. As they watched they saw the appellant get into the car,
switch on the headlights and ignition, start the car and drive off. The appellant at the wheel of the
car correctly stopped the car at a set of traffic lights which were showing red against him.

Constable Grace then went over to the car as it was stationary, removed the ignition keys from the
ignition lock, but not before the appellant had tried to drive the motor car away and escape from the
attention of the policeman. The appellant was put in the police car. On the way to the police station
an informal conversation about motor vehicles took place between the appellant and the police
officers, in particular about the respective merits of the new Rover motor car and the Ford Sierra.
Indeed the appellant appeared to Police Constable Barnes not only to be fully in possession of his
faculties but to be quite cheerful and intelligent. Indeed he went so far as to say to the police officer
that if he had only got the car, which he was in the process of removing, on to the open road, he
would have given the policemen a real run for their money.

However after having been at the police station for a time, he was at a later stage escorted by Police
Constable Barnes to hospital. He seemed to be normal when he left the cell block at the police
station, but when he arrived at the hospital he appeared to be dazed and confused. The appellant,
complained to the sister in the casualty ward that he had failed to take his insulin and indeed had
had no insulin since the previous Monday when he should have had regular self-injected doses. He
was given insulin, with which he injected himself, and the hospital discharged him and he was taken
back to the police station.

The appellant gave evidence to the effect that he had been a diabetic for about 10 years. He needed,
in order to stabilise his metabolism, two insulin injections on a daily basis, morning and afternoon.
The amount required would depend on factors such as stress and eating habits. He *290 was on a
strict carbohydrate diet. At the time of the offence he said he had been having marital and
employment problems. His wife had submitted a divorce petition some time shortly before, and he
was very upset. He had not been eating and he had not been taking his insulin. He remembered very
few details of the day. He could recall being handcuffed and taken to the chargeroom at the police
station. He remembered being given insulin at the hospital and injecting himself and he remembers
feeling better when he got back to the police station afterwards. He said he did not recall taking the
car. When cross-examined he agreed that he had understood proceedings at the police station, and
what had gone on there. Indeed he had given the name and address of his solicitor. That was a
considerable time before he had had his insulin at the hospital.

His general practitioner, Dr. Higginson, was called to give evidence. He spoke as to the appellant's
medical condition. He described in broad outlines the effect of diabetes: it is a deficiency in the
system of the production of hormones, which should balance the sugar metabolism. The lacking
hormone is of course insulin. In the absence of the hormone the blood sugar rises and that results in
hyperglycaemia. If the patient does not take his insulin and does not stick to the proper diet, then
hyperglycaemia will supervene. If unchecked, the liver will become affected and the increasingly
high level of sugar makes the patient drowsy and he will ultimately go into a coma. If on the other
hand the balance tips the other way, if too much insulin is taken, then the blood sugar will fall and
hypoglycaemia, that is to say, too little sugar in the blood, will supervene.

According to the hospital notes, on the evening in question the appellant's blood sugar had been
high at 22 plus millimolecules per litre, the normal being 8 or 9. According to Dr. Higginson one
would expect to see some physical manifestation of hyperglycaemia at that level. So the doctor was
saying in short that eventually hyperglycaemia can result in drowsiness, loss of consciousness and
coma, greater or less unresponsiveness to stimuli according to the degree of hyperglycaemia
present. He added I will read a passage from his evidence in a moment that anxiety or
depression can increase the blood sugar level, a person's ability and awareness of what is going on
could be impaired if there were associated symptoms and he had other

A passage from Dr. Higginson's evidence, states:

Q. What if a person was in a state of anxiety or depression at the same time as having high blood
sugar? A. The blood sugar tends to be increased in the ordinary diabetic by any trauma or
psychological stress, so the answer to your question is yes, it would go up.

Q. What about the person's ability and awareness of what was going on, would that be impaired or
could it be impaired? A. I think if there was associated symptoms and he had other conditions and
worries at the same time, yes it could be impaired.

Then in answer to a question by the judge the doctor said:

There is a great individual variability in this situation, and it is difficult to be dogmatic, but I think
that would be a reasonable explanation of someone who is under a lot of stress and had a very high
level of blood sugar He might not be clear about what he was doing; he might be a bit befuddled. It
is well known that the *291 reverse condition, hypoglycaemia produces these symptoms very
markedly. From time to time people are arrested for being drunk.

The defence to these charges accordingly was that the appellant had failed to take his proper twice a
day dose of insulin for two or three days and at the time the events in question took place he was in
a state of automatism and did not know what he was doing. Therefore it is submitted that the guilty
mind, which is necessary to be proved by the prosecution, was not proved, and accordingly that he
was entitled to be acquitted.

The judge took the view, rightly in our view, that the appellant, having put his state of mind in issue,
the preliminary question which he had to decide was whether this was truly a case of automatism or
whether it was a case of legal insanity within the M'Naghten Rules M'Naghten's Case (1843) 10
Cl. & Fin. 200. He concluded that it was the latter, and he so ruled, whereupon the appellant
changed his plea to guilty and was sentenced to the terms of imprisonment suspended which we
have already mentioned. The judge then certified the case fit for appeal in the terms which I have
already described.

The M'Naghten Rules in the earlier part of the last century have in many ways lost their importance;
they certainly have lost the importance they once had, but they are still relevant in so far as they
may affect the defence of automatism. Although the rules deal with what they describe as insanity,
it is insanity in the legal sense and not in the medical or psychological sense. The rules were, as is
well known, embodied in replies given by the judges of that day to certain abstract questions which
were placed before them. The historical reasons for the questions being posed it is not necessary for
us to describe, interesting though they are.

The answers to the questions were these: first 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 the satisfaction of the jury.

The second rule is:

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 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, if he did know it, that
he did not know what he was doing was wrong.

The importance of the rules in the present context, namely, the context of automatism, is this. If the
defendant did not know the nature and quality of his act because of something which did not
amount to defect of reason from disease of the mind, then he will probably be entitled to be
acquitted on the basis that the necessary criminal intent which the prosecution has to prove is not
proved. But if, on the other hand, his failure to realise the nature and quality of his act was due to a
defect of reason from disease of the mind, then in the eyes of the law he is suffering from insanity,
albeit M'Naghten insanity.

It should perhaps be added, in order to complete the picture, though it is not relevant to the present
situation, that where a defendant's failure to appreciate what he was doing was wrong, (that is, the
second *292 part of rule 2 of the M'Naghten Rules) where that failure is due to some reason other
than a defect of reason from disease of the mind he will generally have no valid defence at all.

If one wants any confirmation, it is to be found, if we may respectfully say so, in Smith and Hogan,
Criminal Law, 6th ed. (1988), p. 186, where these matters are very helpfully and clearly set out. If we
may just cite the passage from that page, it runs as follows:

When a defendant puts his state of mind in issue, the question whether he has raised the defence
of insanity is one of law for the judge. Whether D, or indeed his medical witnesses, would call the
condition on which he relies insanity, is immaterial. The expert witnesses may testify as to the
factual nature of the condition but it is for the judge to say whether that is evidence of a defect of
reason, from disease of the mind, because, as will appear, these are legal, not medical, concepts.

Then section 2 of the Trial of Lunatics Act 1883, as amended, by section 1 of the Criminal Procedure
(Insanity) Act 1964 provides:

(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 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.

In the present case therefore what had to be decided was whether the defendant's condition was
properly described as a disease of the mind. That does not mean any disease of the brain. It means a
disease which affects the proper functioning of the mind. There have been a series of authorities on
that particular subject. One such instance is Reg. v. Kemp [1957] 1 Q.B. 399 and the judgment of
Devlin J. therein.

The question in many cases, and this is one such case, is whether the function of the mind was
disturbed on the one hand by disease or on the other hand by some external factor. The matter was
discussed, as Mr. Owen has helpfully pointed out to us, by the House of Lords in Reg. v. Sullivan
[1984] A.C. 156, and the passage which I read is in the speech of Lord Diplock, 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 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 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 *293 the M'Naghten 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.

The point was neatly raised in Reg. v. Quick [1973] Q.B. 910, also referred to us by Mr. Owen, in
which Lawton L.J. reviews the authorities. It might perhaps help if I read a short passage from the
headnote:

The defendants, Q. and P., nurses at a mental hospital, were jointly and severally charged with
assaulting a patient occasioning actual bodily harm. Both pleaded not guilty. Q., a diabetic, relied on
the defence of automatism. He gave evidence that he had taken insulin as prescribed on the
morning of the assault, had drunk a quantity of spirits and eaten little food thereafter and had no
recollection of the assault. He called medical evidence to the effect that his condition at the material
time was consistent with that of hypoglycaemia. The judge ruled that that evidence could only
support a defence of insanity, not automatism. Q. then pleaded guilty and P. was convicted of aiding
and abetting Q. by encouragement. The defendants appealed against conviction.

I turn to the passage in the judgment where Lawton L.J. said, at pp. 922923:

A malfunctioning of the mind of transitory effect caused by the application to the body of some
external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences
cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of
reason from disease of the mind, will not always relieve an accused from criminal responsibility In
this case Quick's alleged mental condition, if it ever existed, was not caused by his diabetes but by
his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was
caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed
the working of his mind. It follows in our judgment that Quick was entitled to have his defence of
automatism left to the jury and that Bridge J.'s ruling as to the effect of the medical evidence called
by him was wrong.

Thus in Quick's case the fact that his condition was, or may have been due to the injections of
insulin, meant that the malfunction was due to an external factor and not to the disease. The drug it
was that caused the hypoglycaemia, the low blood sugar. As suggested in another passage of the
judgment of Lawton L.J. (at p. 922GH), hyperglycaemia, high blood sugar, caused by an inherent
defect, and not corrected by insulin is a disease, and if, as the defendant was asserting here, it does
cause a malfunction of the mind, then the case may fall within M'Naghten Rules.

The burden of Mr. Owen's argument to us is this. It is that the appellant's depression and marital
troubles were a sufficiently potent external factor in his condition to override, so to speak, the effect
of the diabetic shortage of insulin upon him. He refers us not only to the passage which I have
already cited in Reg. v. Quick [1973] Q.B. 910, 922 but also to a further passage in Hill v. Baxter
[1958] 1 Q.B. 277, *294 285286, which is part of the judgment of Devlin J., sitting with Lord
Goddard C.J. and Pearson J., in the Divisional Court:

I have drawn attention to the fact that the accused did not set up a defence of insanity. For the
purposes of the criminal law there are two categories of mental irresponsibility, one where the
disorder is due to disease and the other where it is not. The distinction is not an arbitrary one. If
disease is not the cause, if there is some temporary loss of consciousness arising accidentally, it is
reasonable to hope that it will not be repeated and that it is safe to let an acquitted man go entirely
free. But if disease is present, the same thing may happen again, and therefore, since 1800, the law
has provided that persons acquitted on this ground should be subject to restraint.
That is the submission made by Mr. Owen as a basis for saying the judge's decision was wrong and
that this was a matter which should have been decided by the jury.

In our judgment, stress, anxiety and depression can no doubt be the result of the operation of
external factors, but they are not, it seems to us, in themselves separately or together external
factors of the kind capable in law of causing or contributing to a state of automatism. They
constitute a state of mind which is prone to recur. They lack the feature of novelty or accident,
which is the basis of the distinction drawn by Lord Diplock in Reg. v. Sullivan [1984] A.C. 156, 172. It
is contrary to the observations of Devlin J., to which we have just referred in Hill v. Baxter [1958] 1
Q.B. 277, 285. It does not, in our judgment, come within the scope of the exception of some external
physical factor such as a blow on the head or the administration of an anaesthetic.

For those reasons we reject the arguments, able though they were, of Mr. Owen. It is not in those
circumstances necessary for us to consider the further arguments which he addressed to us based
upon the decision Reg. v. Bailey [1983] 1 W.L.R. 760.

In our judgment the reasoning and judgment of the circuit judge were correct. Accordingly this
appeal must be dismissed.

L. N. W.

Representation

Solicitors: Crown Prosecution Service, Lewes.