Case No. CO-168-97
Neutral Citation Number: [1997] EWHC Admin 367
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

Royal Courts of Justice
Strand
London WC2

Date: Tuesday, 15 April 1997

B e f o r e:

LORD JUSTICE McCOWAN

and

MR JUSTICE POPPLEWELL

- - - - - -

DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

-v-

MICHAEL HAROLD DAVID HARPER
Respondent

- - - - - -

Computer Aided Transcript of the Stenotype notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
(Official Shorthand Writers to the Court)

- - - - - -

MR N DEAN (Instructed by the Crown Prosecution Service, Lincoln) appeared on behalf of the Appellant.

THE RESPONDENT was not represented.
- - - - - -
J U D G M E N T

LORD JUSTICE McCOWAN:   This is an appeal by way of Case Stated by justices for the Commission Area of Lincolnshire, sitting in the Petty Sessional Division of Caistor.  

On 12 March 1996 the justices acquitted the respondent of driving a motor vehicle after consuming so much alcohol that the proportion of it in his blood exceeded the prescribed limit, contrary to s 5(1)(A) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.  The prosecution appeal that decision.  

In the Case Stated the justices say that they found the following facts.  
	(i)  The respondent had driven his Chevrolet motor vehicle on Caistor High Street on 16 January 1996 whilst having consumed alcohol in excess of the prescribed limit.  
	(ii) It was conceded by the respondent that the level of alcohol in his blood on 16 January 1996 was 88 milligrams of alcohol in 100 millilitres of blood.  
	(iii) It was conceded by the appellant that the respondent was suffered from some kind of mental disorder.  
	(iv) The respondent had a history of mental illness, having been treated and detained in accordance with the Mental Health Act 1983 for manic depressive psychosis in 1992.
	(v)  On 16 January 1996 the respondent was suffering from a hypomanic mood disorder, namely manic depressive psychosis.  The respondent had been receiving treatment for this condition from about August 1995 under the supervision of Dr Ryan.  
	(vi)  People suffering from manic depressive psychosis display symptoms of distortion of judgment and a lack of moral and time sense.  Their decisions may and probably will be irrational and they all display a lack of appreciation of reality, resulting in dis-inhibition in social behaviour and an impairment of judgment and moral sense.  

The justices went on to say, however, that Dr Ryan did not say unequivocally that Mr Harper was in such a condition on 16 January 1996 as he did not see him between early December 1995 and early February 1996, over two weeks after the offence.  Accordingly, on the basis of Dr Ryan's evidence alone it was not possible to find that the respondent either did not know the nature and quality of his act or that what he was doing was wrong.  The justices therefore looked at other evidence to find whether or not, on the balance of probabilities, the respondent was in such a condition on 16 January 1996.  

The justices then recited that the respondent behaved in a somewhat bizarre manner on that occasion.  They then went on to set out the evidence (which is something they had been told on scores of occasions is not required and indeed not wanted by this Court in the case of appeal by way of Case Stated).
		
The justices had their attention drawn to the case of R v. Horseferry Road Magistrates' Court ex parte K [1996] 160 JP 441.  In that case, the court decided first that there is no objection in the abstract to insanity being put forward as a defence to a case in the Magistrates' Court.  However, it also said that the offence must be one in which mens rea is required to be established.  The justices seem to have believed for some reason that the judgment of Forbes J in that case, as reported (and we have looked at the report in the Weekly Law Reports for 1996 at page 68), was different from the headnote of the case, in that the headnote went too far in saying that the defence could only be run in a case where mens rea was an element in the offence.  We have looked at the judgment of Forbes J (in which Kennedy LJ agreed) and also at the headnote, and in fact we find no difference between the two.  

We are quite clear, therefore, that the law is as I have stated, and that insanity can be a defence in the Magistrates' Court, but only if the offence charged is one in which mens rea is an element.  Every man is assumed to be sane at the time of an alleged offence, and accordingly the burden is on the accused to establish insanity at the time of the commission of the offence on the balance of probabilities.  The defence is based on the absence of mens rea, but none is required for the offence of driving with an excess of alcohol.  Hence the defence of insanity has no relevance to such a charge as it is an offence of strict liability.  

Thus it can be seen where the justices went wrong, in that no defence of insanity was available to the respondent in this case.  For that reason alone, the appellant is entitled to say, and say correctly, that the justices should not have acquitted the respondent. 

There are other points to be made.  Disease of the mind is a matter of medical opinion.  Dr Ryan, who was called by the respondent, did not say in evidence that on the occasion that he was found to be driving with excess alcohol he was suffering from a disease of the mind which put him in a state where he did not know the quality or nature of his act or that what he was doing was wrong.  Such evidence should have come from the doctor, if it was going to come at all.  It could not be put together by bits of evidence from other people, and in particular from the fact that the appellant was behaving on the evening in question in a bizarre manner.  

The question also arises as to whether the accused knew that his offence was contrary to law rather than morally wrong. The justices referred to the case of Windle [1952] 2 QB 826.  That case held that the accused could not rely on the defence if he knew that his act was legally wrong.  However, counsel for the appellant before us has pointed out that that was a murder case and therefore it could hardly be questioned that the defendant knew it was both morally and legally wrong.  He submitted that it may be that Windle is wrongly decided and that in fact the test should be "morally wrong" rather than "legally wrong".  In the absence of full argument, we do not think we should embark upon any expression of views on that matter.  

For the reasons I have already given, I am plainly of the opinion that the justices went wrong in this matter and that, on the material before them, they should most certainly have convicted.  Accordingly I would allow the appeal and order that the case be remitted to the justices with a direction to convict.

MR JUSTICE POPPLEWELL:   I agree.

MR DEAN:  I am grateful, my Lords.