One story that caught my eye while browsing The Scotsman’s website for information on a possible second series of The Scheme was one where an individual had been acquitted by a jury of rape having accepted his defence that at the time the alleged crime took place he was “sleepwalking”.

This is quite an interesting case for a number of reasons.  Firstly, there has been a not proven verdict returned.  This verdict is one of the quirks of the Scottish Legal System.  I have, in the past, blogged about the origins of our three verdict system, so I do not intend to say much about the curse of the Not Proven verdict in this post.   The verdict is a strange peculiarity having the same practical effect of a Not Guilty verdict in acquitting the accused of the crime (there is a suggestion of some confusion amongst the general population of exactly what the Not Proven verdict means).  The verdict can often leave a question mark over the head of the accused in a way that a Not Guilty verdict tends not to.

Without having any experience in criminal defence work (being only a law student) it does strike me as a defence that would not come up that often in Court.  From my own understandings having read cases and other reports on such cases the defence often set out is one of consent (i.e. the alleged victim consented at the time and has now changed their mind after the event occurred).  The sleepwalking defence is certainly a peculiar one.  However, it’s certainly not the first time that an accused person has used a sleep disorder as a defence as Paul McBride QC wrote about for The Scotsman in response to this story.  Even without having read Paul McBride’s comment on the case it was abundantly clear to me that the outcries from the mother of the alleged victim that the case would open up a floodgate were simply unfounded.  The system simply does not work like that.

Evidence is key in any case, whether that be a small claims case for a debt that you are owed or in a high profile criminal case involving serious criminal charges.  Juries and Judges can only make a decision based upon evidence.  If a person were to argue before a court that they carried out the act(s) contained within the complaint or indictment, but was able to lead no evidence that they indeed suffered from such a condition then their defence will fail.  There cannot be reasonable doubt based on a medical condition where no evidence that the accused actually suffers from the condition has been lead in court.

In this case, The Scotsman reports, that an expert advised that it would be unusual for a man to have sex will “sleepwalking”, but was not impossible.  Further evidence was lead as to the accused’s condition from people who testified as to having seen him sleepwalking (equally people testified that they had not).  In the event the jury decided that there was reasonable doubt (whether they actually believed he was sleep walking or whether it was simply a reasonable possibility is something we will never know nor something one can really speculate on).

I have no doubt that the young girl in this case has had problems since the incident, but that alone is not enough of a reason to convict a person.  If the accused was not at the time in control of himself then he cannot be held responsible for his actions.  Paul McBride gave the example of an epileptic taking a fit at the wheel and how an undiagnosed epileptic could not be held responsible criminally for any deaths or injuries caused as a result of him taking an epileptic fit at the wheel (one would assume that this would equally apply to a person where their epilepsy had been controlled sufficiently long enough to be given their driving licence back).  It simply would not be justice for a person in these situations to be held criminally responsible.

Now, of course, I was not present in court for the duration of the case and can only go by what I have read in the press (which can often not be as accurate a representation of the case as one would hope).  Therefore I can only make a general comment on what the case does not establish (i.e. a precedent that anyone can stand up in court, make this claim and walk out a free man).

Paul McBride’s comment in response to the case is very good and I would encourage you to read it.

• Criminal Justice
• Criminal Law
• Legal System
• Scots Law