Clause 116.—(PROVISIONS WHERE ACCUSED FOUND INSANE.) (Hansard, 17 February 1955)

§ Mr. Hector Hughes
I submit that the Clause should not stand part of the Bill because it is couched in an out-of-date and illogical form. It deals with provisions in the case where the accused is found insane. This affects a finding where the defence is that the accused was insane at the time when he committed the act. In my submission, the finding should be in accordance with that fact.
Clause 116 (2) provides, Where, on the trial of a person by court-martial, it appears to the court that the evidence is such as, apart from any question of insanity, to support a finding that the accused was guilty of any offence, but that at the time of the acts or omissions constituting that offence the accused was insane, the court shall find that the accused was guilty of that offence but was insane at the said time. That is illogical. To be guilty of a criminal offence one must have criminal intent, and if one was insane at the time one cannot have had any intent, even a guilty intent which would make one guilty of the offence.
The proper finding, therefore, should be that the accused committed the act but was insane at the time. Therefore, the Clause should not stand part of the Bill. If the Amendments on the Order Paper in my name had been selected earlier, I would have asked that the Clause should take the form suggested—that the accused committed the act charged but was insane at the time.

§ The Lord Advocate
The hon. and learned Member has certainly a point on the phraseology "guilty but insane" because, as he and the Committee know, a recommendation has been recently made. But it would be quite inappropriate for the phraseology in a Bill to run ahead 642 of the ordinary civil law, which is being considered at this time. I do not think that the hon. and learned Member commented on his Amendments but only dealt with the phraseology. I think that the phraseology in the Bill is perfectly adequate and appropriate as it stands.

§ Mr. Emrys Hughes
The Lord Advocate has said, probably by accident, something that is very interesting to us in Scotland, namely, that there is a prospect of an alteration of the law relating to the death penalty and that he does not think that the military law should have precedence over the civil law. That is an interesting point on which we should all agree, but the Lord Advocate has opened the door a little and we should have more enlightenment.
I make the point because I think that the Lord Advocate has lost a magnificent opportunity to state his ideas on what the law of Scotland is in relation to the death penalty. We were all very disappointed indeed that the Lord Advocate did not make a contribution to the debate on the civil liability. I suggest that the right hon. and learned Gentleman might now tell us a little more. We have known previous Lord Advocates, very distinguished gentlemen—

The Temporary Chairman
I hope that the Lord Advocate will not endeavour to tell the Committee more about civil law, because it is not civil law that the Committee is now discussing.

§ Mr. Hughes
I caught the sentence of the Lord Advocate when he made the point that military law should not take precedence over civil law. I am not sure whether that argument holds good. If there is anything wrong with the death penalty in relation to military law, now is the time to deal with it, since the death penalty in Scotland comes under a different set of circumstances to that which prevails under English law.
I was very much encouraged by the remarks of the Lord Advocate. I do not wish to press him on this occasion, but I hope that he will give us an assurance that he will make a fuller statement elaborating the remarks that the law was being considered in Scotland.

§ The Lord Advocate
In order that there shall be no misunderstanding, I did not refer a moment ago to the death 643 penalty, but merely said that the Report of the Royal Commission on Capital Punishment, which contains certain recommendations about insanity and the form of verdict, was being considered.