Ross v. HM Advocate

Factual and Procedural Background

On the day in question, the Appellant unknowingly ingested five or six tablets of temazepam and a quantity of L.S.D. that had been secretly added to a can of lager he was drinking. Approximately half an hour later, the Appellant began to scream and act violently with a knife, injuring several strangers severely. The police arrived and arrested the Appellant after a prolonged struggle. He was eventually subdued in hospital with medication. Temazepam typically has a tranquillising effect, but in rare cases can cause disinhibition, while L.S.D. is a hallucinogen that can induce fear, anxiety, paranoia, and aggression, especially if the person is unaware of ingestion. The Appellant was charged with criminal offenses related to his violent conduct.

The Appellant's defence argued that due to the involuntary ingestion of these drugs, he lacked the mens rea necessary for criminal liability and that the jury should be allowed to acquit on that basis. The Crown contended that under established case law, the only appropriate defence would be insanity at the time, which was not pleaded or evidenced. The trial judge directed the jury accordingly, excluding the possibility of acquittal based on the Appellant's mental state from drug ingestion. The Appellant appealed against his conviction.

Legal Issues Presented

1. Whether involuntary intoxication resulting in a temporary loss of self-control can negate mens rea and justify acquittal.
2. Whether the defence of automatism (total alienation of reason due to external, non-self-induced factors) should be recognized as a special defence distinct from insanity.
3. Who bears the burden of proof regarding the presence or absence of mens rea when automatism is alleged.
4. Whether the precedent set by H.M. Advocate v. Cunningham and related cases should be overruled or modified in light of these issues.
5. Whether written notice of a defence based on automatism should be required as a special defence under procedural rules.

Arguments of the Parties

Appellant's Arguments

• The Appellant lacked the capacity for self-control and mens rea due to drugs administered without his knowledge.
• The jury should be allowed to consider acquittal on the ground of automatism without the need for a plea of insanity.
• There should be no onus on the defence to prove the absence of mens rea; rather, the Crown must prove guilt beyond reasonable doubt.
• The defence of automatism should be recognized as a valid special defence, potentially requiring written notice.

Crown's Arguments

• Based on H.M. Advocate v. Cunningham and related cases, only insanity at the time of the offense can justify acquittal on mental incapacity grounds.
• No plea or evidence of insanity was presented, so the jury was correctly directed to return a guilty verdict.
• Self-induced intoxication negates the possibility of relying on automatism or insanity defences.
• The onus is on the accused to establish special defences such as insanity.
• Allowing acquittal based on non-insane automatism could lead to laxity and confusion in criminal law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
H.M. Advocate v. Cunningham (1963 J.C. 80)	Any mental or pathological condition short of insanity is relevant only to mitigation, not acquittal.	The Court found this dictum to be obiter and distinguished it, overruling it to the extent it denied acquittal for non-insane automatism.
Carmichael v. Boyle (1985 S.L.T. 399)	Confirmed Cunningham's principle applied to hypoglycaemia-induced incapacity.	The Court overruled this application insofar as it followed Cunningham's restrictive approach.
Clark v. H.M. Advocate (1968 J.C. 53)	Related to insanity defence principles.	Overruled insofar as it followed Cunningham's approach.
R. v. Sullivan ([1984] A.C. 156)	Disorders amounting to disease of the mind require special verdict of insanity.	Distinguished from cases of temporary automatism due to external factors.
Brennan v. H.M. Advocate (1977 J.C. 38)	Self-induced intoxication is no defence; it forms part of the mens rea.	Confirmed policy reasons excluding self-induced intoxication as a basis for acquittal.
H.M. Advocate v. Ritchie (1926 J.C. 45)	Recognized temporary mental dissociation from external toxic factors might negate responsibility.	Its direction on burden of proof was disapproved but its principle on automatism was endorsed.
Bratty v. Attorney-General for Northern Ireland ([1963] AC 386)	Distinction between insanity and automatism; automatism can be a defence if involuntary act.	Supported the principle that absence of voluntary control negates mens rea.
R. v. Quick ([1973] QB 910)	Automatism due to insulin-induced hypoglycaemia should be left to jury.	Supported the recognition of automatism distinct from insanity.
H.M. Advocate v. Raiker (1989 S.C.C.R. 149)	Accepted that involuntary action due to drugs administered without consent negates mens rea.	Consistent with the principle that absence of evil intention mandates acquittal.
Lambie v. H.M. Advocate (1973 J.C. 53)	No burden on accused to prove special defences other than insanity.	Applied to hold Crown bears burden to prove mens rea except in insanity cases.
Woolmington v. D.P.P. ([1935] AC 462)	Prosecution must prove every element of the offence including mens rea beyond reasonable doubt.	Reaffirmed as overriding principle governing burden of proof.
D.P.P. v. Morgan ([1976] AC 182)	Honest belief negates mens rea even if unreasonable.	Illustrated that mens rea is a subjective state of mind.
Meek v. H.M. Advocate (1983 S.L.T. 280)	Confirmed the principle that absence of honest belief negates mens rea in rape.	Applied subjective mens rea standard in Scottish law.
D.P.P. v. Majewski ([1977] AC 443)	Self-induced intoxication is no defence to crimes of basic intent.	Supported policy reasons for excluding self-induced intoxication as a defence.
Hill v. Baxter ([1958] 1 Q.B. 277)	Considered burden of proof regarding automatism.	Reserved opinion but suggested possible parity with insanity burden.
R. v. Cottle ([1958] N.Z.L.R. 999)	Burden of proof lies on prosecution except in insanity cases.	Supported Crown's burden to prove mens rea beyond reasonable doubt.
R. v. Innes Grant (1949 (1) S.A. 753)	Burden of proof lies on prosecution for involuntary intoxication defences.	Supported no onus on accused to prove involuntary intoxication.
S. v. Trickett (1973 (3) S.A. 526) and S. v. Hartyani (1980 (3) S.A. 613)	Confirmed prosecution burden to prove guilt beyond reasonable doubt.	Reinforced principle that defence bears no burden in involuntary intoxication.
H.M. Advocate v. Kidd (1960 J.C. 61)	Clarified requirements for special defence of insanity.	Used to explain presumption of sanity and burden on defence in insanity cases.
Cawthorne v. H.M. Advocate (1968 J.C. 32)	Mens rea can exist without specific intention if accused intended likely consequences.	Illustrated distinction between intention and mens rea.
Crawford v. H.M. Advocate (1950 J.C. 67)	Judge must direct jury to reject special defence if no evidence supports it.	Applied as procedural safeguard regarding special defences.

Court's Reasoning and Analysis

The Court examined whether the defence of automatism, involving a total alienation of reason caused by an external, non-self-induced factor, should be recognized as a valid defence leading to acquittal due to absence of mens rea. It noted that while prior authority, especially Cunningham, had restricted acquittal to cases of insanity, that view was obiter and did not consider the full range of automatism cases.

The Court distinguished between:

• Insanity or pathological conditions causing recurring mental disorders (requiring special defence of insanity);
• Self-induced intoxication, which does not excuse criminal responsibility;
• Temporary mental incapacity caused by external factors without the accused's knowledge or fault.

It emphasized that mens rea—the subjective evil intention—is an essential element of crime and that if the accused was incapable of forming this due to involuntary intoxication, acquittal should follow. The Court agreed with the principle that the burden of proof remains on the Crown to establish guilt beyond reasonable doubt, including proof of mens rea. There is no burden on the defence to prove absence of mens rea, except in cases of insanity where the presumption of sanity must be rebutted.

The Court acknowledged concerns about the Crown being surprised by such defences but noted procedural safeguards such as judicial examination and the possibility of requiring written notice of such defences. However, it declined to mandate such notice, leaving that to legislative discretion.

Finally, the Court concluded that the trial judge erred in directing the jury to disregard evidence of the Appellant's mental state caused by involuntary intoxication and that this misdirection caused a miscarriage of justice.

Holding and Implications

The Court held that the precedent set by H.M. Advocate v. Cunningham and related cases should be overruled to the extent that they preclude acquittal for lack of mens rea due to non-self-induced, unforeseeable, external causes of total alienation of reason (automatism).

The appeal is allowed and the Appellant's convictions on all charges are quashed.

The direct effect is that the Appellant is acquitted due to absence of criminal responsibility arising from involuntary intoxication. The Court did not set a new procedural requirement for special defence notice but expressed that it might be preferable. No new precedent beyond the overruling of Cunningham on this point is established, and the ruling clarifies the burden of proof and scope of automatism as a defence distinct from insanity and self-induced intoxication.