INTOXICATION IN RELATION TO CRIMINAL RESPONSIBILITY.

J. ROBERTON CHRISTIE, K.C.

(Continued from p. 84.)

So matters stood in England when in 1909 the case of R. v. Meade, decided by the Court of Criminal Appeal, disturbed the position by stating the law, with the authority of an appellate Court, in terms which (if intended to be of general application) the House of Lords has now held to have been erroneous. Before glancing at Meade and its correction in Beard's case, it is appropriate to consider the attitude of the Scots Courts towards the question before us. It will be found that it is in substantial harmony with the summary given by Lord Birkenhead of the result of the cases in England prior to Meade.

In Scotland, judicial opinion was more tardy than was that south of the border in recognising that the results of scientific medical research required modification of the traditional attitude of the institutionalists. It was not till well past the middle of the century that we find a limited but decided step taken by Lord Justice-Clerk Inglis. In the case of Milne (1863, 4 Irv. 301), while still insisting that nothing short of insanity could suffice to absolve a man from criminality, and that it was not enough that a man should merely be "in an anomalous state of mind from extrinsic causes-from drinking or anything else which make the bad part of his nature predominate over the better," he directed the jury that if there were actual insanity it mattered not what was the exciting cause of that insanity. "It may be drunkenness. . . . it is of no consequence which it is if insanity is actually produced and is present at the time." But the judge who did most to bring the judicial attitude somewhat into line with the scientific on this matter was Lord Deas that "very very eminent criminal judge," as he was described by Lord M'Laren. To him was due the recognition that mental instability short of actual insanity, while not relieving from criminality, may still fittingly be regarded as affecting the degree of culpability, and in certain cases even as changing the category of a crime. He had repeated occasion to deal with this aspect-in particular in the cases of Dingwall (1867, 5 Irv. 466) and Grainger (1878, 4 Coup. 101). In these cases he indeed insisted strenuously that drunkenness could never avail to exclude from criminality, and he refused to lay it down in general terms that delirium tremens was insanity, although he would not affirm that it could never amount to this. But he recognised that even when falling short of insanity its existence might receive recognition. The import of his judgments in these cases was thus summarised by Lord M'Laren with regard to

that partial derangement which results from intemperance. There may be a state of mental disturbance brought on by a man's own fault by his own intemperance-going the length of producing a physical disturbance of the brain which might avail not to exculpate from but to excuse his crime to the effect of reducing it to one of lesser degree." The final limit of Lord Deas' qualification was expressed in a case tried by him at Glasgow in 1881 ("Jurid. Rev.," Vol. X. p. 319), thus: "If the man was insane at the time he committed the offence, no matter whether the insanity lasted for ten minutes or for half an hour (merely under drink would not do but if drink produced insanity for however short a time) and the man did certain things while insane that there was no reason to think he would do while sane, that was quite enough." Lord Deas' views were referred to with cordial approval by Lord M'Laren in Smith (1893, 1 Adam 50), and by Lord Justice-Clerk M'Donald in Graham (1906, 5 Adam 219). In 1891 Lord Low in a case at Glasgow Circuit gave the prisoner "the benefit of the belief that there was no malice and no deliberation, but that he committed the crime while maddened by the influence of strong drink"; and he regarded this as sufficient to reduce the crime to culpable homicide.

Finally in this direction, there were the important contributions of Lord Justice-Clerk M'Donald in the cases of M'Donald (2 W. 517) and Kane (3 W. 386). In these cases the Lord Justice-Clerk emphatically affirmed and reaffirmed the insufficiency of intoxication as any excuse for crime, and maintained the distinction between this condition and insanity. But he added: while drunkenness is no excuse, if the means adopted were not likely to lead to bad results, and if there was no malice aforethought, then the fact that the man was in a drunken state may be considered in determining the question between murder and culpable homicide"; and he told the jury that in the question whether full guilt of murder had been incurred they might take into account the important fact that the man was intoxicated at the time and “to a certain extent using violence perhaps quite unconscious as to the extent of it." At the same time, in so stating the law he said that he did so with difficulty and only under pressure from the weight of authorities cited and with some doubts whether the rule so stated was consistent with principle.

If regard be had to the qualification italicised, the results thus reached do not materially differ in substance (although they vary in expression), from the summary already given of those arrived at by English judges. And they have been largely accepted in modern practice. But on the other hand there have not been wanting recent indications of the influence of the older view. (To be continued.)

listener. He is a member of the Scottish Mountaineering Club and of the Cairngorm Club, and in pursuit of his favourite recreation he displays the zest and keenness which are characteristic of all his actings.

COURT OF SESSION. AUTUMN VACATION, 1920. The Court adjourns for the Autumn Vacation on Tuesday, 20th July. Box-days are Thursday, 12th August, and Thursday, 23rd September. Summonses due for calling on each of the box-days must be lodged not later than the immediately preceding Tuesday. They may also be lodged on any prior date after expiry of induciæ. Court-days are Wednesday, 18th August, and Wednesday, 29th September. Court sits at eleven o'clock. Enrolments for Courtday rolls taken up between eleven and twelve o'clock on the Monday immediately preceding the Court-day. The Court resumes for the Winter Session on Friday, 15th October. Summonses due for calling on Friday, 15th October, must be lodged before one o'clock on Thursday, 14th October. They may also be lodged on any prior date after expiry of induciæ. Outer-House enrolments for Friday, 15th October, taken up on Wednesday, 13th October, between eleven and twelve o'clock. No Inner-House manuscript enrolments received for the Single Bills of Friday, 15th October. Vacation hours of attendance, clerks of Court (New Register House), Inner House and Outer House-Monday, Tuesday, Thursday, and Friday, also Saturday, 14th August, and Saturday, 25th September, 11 to 1. Bill-Chamber-Monday to Friday (both inclusive), 10 to 12 and 2 to 3. Saturday, 10

to 12.

WEST.-The Right Hon. the Lord JusticeClerk and the Hon. Lord Blackburn. Stirling -Friday, 30th July. Inveraray-Saturday, 31st July. Glasgow-Wednesday, 8th September. A. M. MacRobert, Esq., K.C., AdvocateDepute. Messrs Alexander Rae and Thomas S. Stewart, clerks.

NORTH.-The Hon. Lord Skerrington and the Hon. Lord Ormidale. Perth-Tuesday, 14th September. Dundee-Thursday, 16th September. Inverness - Tuesday, 21st September. Aberdeen-Thursday, 23rd September. J. C. Fenton, Esq., Advocate-Depute. Alexander Rae, Esq., clerk.

SOUTH--The Hon. Lord Cullen and the Hon. Lord Ashmore. Jedburgh - Tuesday, 27th July. Ayr-Wednesday, 28th July. Dumfries -Wednesday, 1st September. D. P. Fleming, Esq., Advocate-Depute. Alexander Rae, Esq.,

clerk.

PRIVATE LEGISLATION PROCEDURE (SCOTLAND) ACT 1899.-An enquiry into the undermentioned Draft Provisional Orders will open at 10.45 A.M. on Wednesday, 21st July, in the Justiciary Court-House, East Clyde Street, Glasgow, where the first seven Orders will be heard. Commissioners will then proceed to Aberdeen, where the last two Orders will be heard in the Advocates' Buildings :

1. Dumbarton Burgh and County Tramways. 2. Falkirk and District Tramways. 3. Lanarkshire Tramways.

4. Brodick, Lamlash, Loch Ranza, and Whiting Bay Piers.

5. Greenock Port and Harbours.

6. Paisley Corporation (Cart Navigation).
7. The Trades' House of Glasgow.
8. Aberdeen Harbour.

9. Dorward's House of Refuge.

The following Commissioners have been appointed for the enquiry:

Major G. M'Micking, M.P. (chairman), the Marquis of Linlithgow, Lord Elphinstone, and Major W. Murray, M.P.

CROWN AND PRIVATE LAND.
JUDGMENT AGAINST THE GOVERNMENT.

In the King's Bench Division, London, last week, Mr Justice Lush and Mr Macnamara, as constituting the Railway and Canal Commission Court, gave judgment in an application by the Ministry of Munitions for the consent of the Court to the purchase of certain land at Chancellor's Road, Hammersmith, owned by Mr F. W. H. Mackrill, a builder. The case raised questions of considerable public importance as to the conditions under which the Crown, having taken temporary possession of the land of a private owner, and erected permanent buildings thereon for purposes connected with the war, was entitled to acquire the property by compulsory purchase. The case was the first to be heard raising these points.

Mr Justice Lush said that the Ministry of Munitions took possession of Mr Mackrill's land and the premises for the purposes of manufacturing munitions. Mr Mackrill's firm had been using them for storage of building materials. The Ministry erected permanent buildings on the land at a cost of £2500. A fire occurred, and the buildings were seriously damaged, and their value as they stood became about £500. The Ministry now asked for the consent of the Court to its acquisition of the land and the buildings. Under the Defence of the Realm (Acquisition of Lands) Act 1916, the Crown were entitled to retain possession for two years from the termina

tion of the war, and for a period not exceeding three years, that the Court might consider necessary or expedient in the national interest. This power was subject to the Ministry not having agreed otherwise with the owner. The respondent owner here was not willing to part with the property. The Ministry asked for consent to the compulsory purchase, as they had entered into a contract with a distillery company to sell the land and the buildings at a price represented substantially by the cost to the Ministry of obtaining it. The Ministry did not themselves require the land at all; they only wanted to take it from the owner to sell it, so that they might recoup the Department for the outlay in erecting the buildings, and so avoid the loss to the State that would be incurred in the removal of the buildings. The facts shewed that the value of the materials, if the buildings were now removed, would not equal the cost of the removal. The Court had to consider, therefore, whether it was of national importance that the Ministry should acquire the land so that they might sell it. The Court was entitled to protect the subject against the undue exercise of the force of the Crown to deprive a man permanently of his property, and if they thought that the circumstances were such that the power ought not to be exercised there was no doubt that it was the duty of the Court to prevent its being exercised.

It was argued that it was in the national interest that the loss to the State should be avoided. He thought that they must pay regard to the fact of whether the Government Department required the land for national purposes, or could make an advantageous use of it. He did not think that the Act contemplated that these powers of compulsory acquisition should be exercised where the Crown did not themselves want the land, but only intended to sell it. It could not be said that the Crown required this land in any real sense. The Court must consider each case on its merits, and if the view advanced for the ministry were accepted it seemed to him that it might enable a Government Department to deprive an owner of his land and effect a profit at the owner's expense. This was a case where the Court must withhold its consent. They had to consider whether the granting of the application had brought hardship and injustice on the owner in compelling him to part with his land. It was not enough merely to say that the owner would be compensated. Here the owner would be handicapped in his business if he were deprived of his land. It was the only place he could get, and it was convenient for him. There was no cause shewn for granting the Ministry's application, and the consent would accordingly be withheld.

Mr Macnamara agreed, and the Ministry's application was refused, with costs to the respondent.

INTOXICATION IN RELATION TO
CRIMINAL RESPONSIBILITY.

J. ROBERTON CHRISTIE, K.C.
(Continued from p. 88.)

Thus in Aitken (1902, 4 Adam 89) Lord Stormonth Darling directed the jury that "In a sane man neither jealousy nor drink nor both combined are sufficient to make such a crime" (homicide with a razor) "less than murder. The principle that there may be a degree of insanity not sufficient to destroy criminal responsibility and yet sufficient to modify the nature of the crime is one recognised and acted upon in recent times, but must be applied with care, and it should only be applied if the jury is satisfied that there is something amounting to brain disease." And in Herbert (1913, 7 Adam 233) Lord Johnston questioned the soundness of the law formulated by Lord Deas in Dingwall, and protested "against the doctrine being received as part of the criminal law and practice of Scotland" until approved of by a fuller Bench.

The

This is somewhat unsettling. And on the other hand, in England in the case of Meade, ([1909] 1 K.B. 895), the Court of Criminal Appeal, through Darling J., gave a judgment so expressed as to lend itself to relaxation greater than that sanctioned by the decisions reviewed. crime there charged was murder by violence, including a brutal blow with the fist which caused rupture and death. The complaint against the charge of the trial judge was that it was in terms which might lead the jury to conclude that they could not bring in a verdict of mere manslaughter unless satisfied of actual insanity. The view of the Appeal Court was consistent with the authorities, viz. that where intent is of the essence of the crime charged the intent may be disproved by shewing that the accused was in a condition of drunkenness which rendered him incapable of forming the intent. But the actual language of the judgment contained a proposition of law "which, regarded as a rule of general application, would mean that a person charged with a crime of violence might rebut the presumption that he intended the natural consequences of his acts by shewing that he was so drunk as to be incapable of knowing that what he did was dangerous, i.e. likely to cause serious injury" (per Birkenhead L.C. in Beard's case). Within limits, i.e. where the weapon used is such as is not prima facie dangerous in this sense, this direction might be unobjectionable. But on reviewing it in Beard's case the House of Lords affirmed that in its wider interpretation as a rule of general application it could not be supported on the authorities, but was erroneous in substituting for the test of whether the accused was incapable of forming the intent that of whether he was incapable of foreseeing or measuring the consequences of his act.

In Beard's case the accused, while engaged in an act of rape on a young girl, had placed his hand over her mouth, with the result that she was suffocated and died. The trial judge directed the jury that this amounted to murder unless they were satisfied that the accused either (a) did not know what he was doing, or (b) did not know that it was wrong. The jury convicted of murder. The Court of Criminal Appeal, taking the view that Meade had established a rule of general application, held that the jury should have been directed accordingly, and it reduced the conviction to one for manslaughter. The case was appealed to the House of Lords for a decision on the general question of the appropriate direction in such cases. The House had no difficulty in holding that the accused was not so drunk as to be incapable of forming the intention of committing the felony of rape, that as incidental to this he had committed a violent act from which death ensued, and that this was murder. On the more general question, the judgment of the House, delivered by the Lord Chancellor, was to the effect that the direction of the trial judge was erroneous in respect that it was in terms only appropriate to a plea of actual insanity which was not taken. That appropriate to the actual plea of drunkenness in palliation of the more serious charge should have been in the terms indicated in heads (2) and (3) of the Lord Chancellor's summary of the results of the earlier authorities already cited (supra, p. 84); and in particular it should have been put to the jury whether the whole facts proved (including the evidence of drunkenness) satisfied them that the accused was or was not incapable of forming the guilty intent charged, i.e. in the particular case, the felony of rape.

The language of the judgment is to some extent affected by the technical form of the charge in English parlance, viz. "wounding with intent to kill, etc.' But, as the Lord Chancellor was careful to point out, its scope is not limited by this technicality. For, broadly speaking, intent is of the essence of any criminal charge"a person cannot be convicted of a crime unless

the mens is rea."

So regarded, the judgment is in principle as valuable as a guide in Scotland as in England, and is as applicable to a charge of any crime (at least at common law) as it is to one of murder. It is true that it has been in cases of murder that the question has generally arisen sharply; but this is not because of any difference in principle, but because upon other charges effect can more readily be given to the ameliorative circumstance in the sentence; whereas on a charge of murder this can only be done by reduction of the crime charged to one of a less heinous category. It is in no way inconsistent with the most zealous insistence on the complete supremacy of the High Court of Justiciary in Scotland to affirm that this carefully reasoned

judgment is a contribution to our law as well as to that of England, inasmuch as it affords a standard for judging on a question on which there is no distinction in principle between the two systems of jurisprudence. The history of the case is a weighty argument in evidence of the usefulness of a well regulated system of criminal appeal.

ACCOUNTANTS' FEES.-The Councils of the Society of Accountants in Edinburgh, the Institute of Accountants and Actuaries in Glasgow, and the Society of Accountants in Aberdeen have issued a joint memorandum to the members of their societies recommending that, in view of the great increase which has taken place in salaries and other office expenses, fees be increased by 50 per cent. over the standard commonly adopted before the war.

SIR JOSEPH DOBBIE, S.S.C., HONOURED.Last week Sir Joseph Dobbie, S.S.C., J.P., who was among the recipients of His Majesty the King's birthday honours, was entertained to a complimentary dinner in the Caledonian Station Hotel, Edinburgh. The Hon. Lord St Vigeans presided over a company numbering about fifty. Lord Rosebery, in a letter to the hon. secretary, Mr H. G. Allan, expressing his regret at being unable to attend, referred to the knighthood conferred on Sir Joseph Dobbie, who, he stated, well deserved the honour. The Secretary for Scotland, Mr Robert Munro, K.C., M.P., and the Lord Advocate, Mr T. B. Morison, also sent apologies for absence. The Chairman, in submitting the toast of "Our Guest," referred to the public services of Sir Joseph Dobbie, particularly in regard to recruiting, and his legal duties as adviser to the Edinburgh Military Tribunal. Councillor W. L. Sleigh, president of the Rosebery Royal Scots Recruiting Committee, presented Sir Joseph with his portrait in oils by Mr Cowan Dobson, A.R.S.A. The portrait, which is an excellent likeness, was subscribed to by the members of the Recruiting Committee and the officers of the 17th (Bantam) Battalion of the Royal Scots. Sir Joseph Dobbie, in accepting, made suitable acknowledgment. Other toasts followed.

PRESENTATION ΤΟ LOTHIANS POOR LAW OFFICIAL.-An interesting presentation__took place in the offices of the Edinburgh Parish Council, Castle Terrace, last week, in honour of the appointment of Mr W. Mowatt, who has for twenty years been secretary to the Lothians Poor Law Association, to the presidency of the Association. The presentation, which consisted of a silver teapot and a silver salver, was made on behalf of the Association by Mr Duncan, Liberton, vice-president. In the absence of his wife, Mr Mowatt also accepted on her behalf the presentation of a gold wristlet watch, which was made by Mr Johnston, Borthwick.