[2015] HCJAC 57


Lady Paton

Lady Smith

Lady Cosgrove


delivered by LADY PATON









Appellant:  Moggach;  Simpson & Marwick, Dundee

Respondent:  A Prentice QC AD;  Crown Agent

18 June 2015

[1]        Automatism is “a total alienation of reason amounting to a complete absence of self‑control” on the part of the accused (Ross v HM Advocate 1991 SCCR 823 at page 833, per Lord Justice General Hope).

[2]        In the subsequent case of Sorley v HM Advocate 1992 SCCR 396, it was noted that the circumstances of that case were: 

“… an illustration of the warning which was given in Ross about the strict limits which must be applied to [the defence of automatism].  Two of the three requirements may be relatively easy to satisfy.  All that is needed is some evidence which would entitle the jury to consider whether there was present some external factor which was not self‑induced and which the accused was not bound to foresee.  But the whole point of the defence is that the accused was suffering from a total

loss of control over his actions in regard to the crime with which he is charged.  Unless there is evidence directed to this essential point, the defence is not available.  It is a point of such importance that it cannot be left to speculation, and a few casual remarks or feelings by the witnesses will not do.  There must be clear evidence to support it, and this means that the evidence must be specific on all details which are material.  The evidence must relate to the state of mind of the accused.  It must relate to the time at which the crime charged was committed.  And it must provide a causative link between the external factor and the total loss of control.  It is unlikely that these requirements will be satisfied unless there is some expert evidence, since the essence of the defence is a state of mind which requires to be precisely diagnosed and the cause of it must be explained.  A genuine case will have the basis for it carefully laid, by eliciting from the eyewitnesses who observed the accused’s condition at the critical time all the elements which are necessary for an informed diagnosis to be made.”


[3]        Having had regard to the sheriff’s report, and having considered the submissions made by Mr Moggach about the evidence, it is our opinion that, even taking the evidence at its highest, it could not provide any proper basis for automatism in the light of the authorities of Ross and Sorley.  So, in these circumstances, it is our opinion that it was the sheriff’s duty, as explained in Ross and Sorley to withdraw the special defence of automatism at the stage she did.

[4]        We would add two observations.  First, as the sheriff recognised, depending on the facts of each case there may be cases where adequate evidence of the appropriate state of mind may be available without the necessity of the accused giving evidence.  And, secondly, in this particular case, the proposed expert witness Dr Morrison did not have before him the primary facts upon which he could assist the jury with his expert opinion as to the state of mind of the appellant at the relevant time.  Neither of these two observations, however, affects the outcome in the present case, and we refuse the appeal against conviction.

[5]        In relation to sentence, even taking into account all the mitigatory factors put before us by Mr Moggach, this was a very grave incident.  It was fortunate that the two motorcyclists were not more seriously injured.  As a result we do not consider the period of disqualification to be excessive.  However, in relation to the fine, in view of the limited financial circumstances of the appellant, we do consider a fine of £1000 to be excessive.  We quash that fine and substitute a fine of £500.  So the appeal against sentence is allowed to that extent.