Discuss the limitations on the defence of automatism

Before we can consider how and why the courts have limited the availability of automatism as a defence in criminal law it will be useful to look at the nature and scope of the defence.

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Firstly we need to consider that there are two types of automatism, insane automatism or insanity and non-insane automatism. Insanity is hard to determine and harder to defend in court it also carries with it a stigma. A special verdict in the Crown Court of 'not guilty by reason of insanity' leaves the court with the power to make an absolute discharge, a supervision order or to order that the person is to be detained in hospital.

There are very few instances of successful pleas of insanity in the Crown Court, the figure is thought to be less than 30 a year. Non-insane automatism is closely linked to insane automatism and refers to a person who has a total lack control of his or her actions at the time of the alleged offence and that lack of control was not his or her fault. It is rarely used, but it is a common law defence and can be used for all crimes.

Automatism operates under the common law and as such we must look to specific cases for help.  The case of Bratty v Attorney General for Northern Ireland 1963 provides a definition and guidance about what amounts to automatism from Lord Denning - “an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep-walking.”

According to English case law a defendant who says he was asleep at the time of the alleged offence should put forward a defence of insanity but more recently courts have been seen to treat sleep-walking as a plea of sane-automatism.

With non-insane automatism, if successful, the defence leads to full acquittal.  This difference can be illustrated by the cases of Quick 1973 (hypoglycaemia - automatism) and Hennessy 1989 (hypoglycaemia – insanity).

In general terms automatism is a loss of control by the ‘mind’ over the movements of the muscles. In other words, the acts of the accused are, in effect, involuntary.  This goes to the heart of the defence, which is founded upon the basic principles of criminal liability, namely, the existence of what amounts to an actus reus and mens rea. Automatism is a complete defence in that not only does it negate the mens rea but is also contrary to the accepted principle that the conduct or behaviour of the accused must be voluntary.  The criminal law is, after all, concerned with accountability and blameworthiness and the courts, by allowing this defence, are showing that it would be unfair to place the blame upon someone who is not properly responsible for their actions.

For the defence of automatism to be used as a defence the loss of control must not be self induced, there must be complete loss of control and the cause of the automatism must be external such as a blow to the head causing concussion, the effect of a drug which may have been administered, hypnosis or post traumatic stress and there must be a total lack of awareness. For instance, should a swarm of bees enter a car causing the driver to loose control and hit a pedestrian the defence of automatism would apply.

Unlike other defences such as the special defences of provocation, diminished responsibility and suicide pact which only operate to reduce a charge of murder to manslaughter, the defence of automatism serves as a complete defence and is not limited.   It is a defence to any crime including crimes of strict liability.

The loss of control must not be self induced, that is to say either by failing to take appropriate action or by their own action. In R. V Bailey [1983] the appellant, a diabetic went to his ex-lovers new boyfriend's house. The appellant, had taken his insulin but said that he did not feel well and needed a drink. Harrison, the new boyfriend, brought him a drink of water with sugar in it, ten minutes later the appellant got up to leave, Harrison bent down to retrieve the appellant's gloves and as he did so the appellant hit him over the head with an iron bar. The appellant raised the defence of automatism stating that the sugar and water had sent him into a state of hypoglycaemia and he was not conscious of his actions and was therefore not capable of forming the mens rea of the offence. The defence of automatism was not appropriate as the appellant's condition was self induced as he had not eaten enough.

The loss of control must be complete for the defence to be allowed.  In
Broome v Perkins 1987, the defence was denied to a diabetes sufferer who still had some control over his vehicle.  This limitation was confirmed in AG’s Reference (No 2 of 1992) 1994 where the Court of Appeal had to consider the implications of such conditions as ‘limited vision’ and ‘driving without awareness’ in the case of lorries on long journeys on straight roads and motorways.  The court concluded that the defence did not apply to cases where there was a reduced or partial loss of control.

There is another limitation operating upon the defence and this comes from the existence of the McNaghten Rules on insanity.  This basically means that if the condition can properly be considered to be a disease of the mind (for example sleep walking) then it comes under the defence of insanity, not automatism.

The defence of insanity is set out in the McNaghten Rules:

'to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.'

The defence can be illustrated by such cases as Kemp 1957 where a man inflicted grievous bodily harm on his wife with a hammer for no apparent reason. He lost consciousness, he claimed, because he was suffering from a congestion of blood in his brain.  The prosecution argued that any defect of reason was as the result of a physical illness not a mental one but the trial judge gave a finding of insanity and the Court of Appeal upheld this decision.

The courts have made a clear distinction between mental illness caused by illnesses or conditions such as epilepsy, diabetes, brain tumours and sleepwalking and states of mind caused by external factors or sources.

This legislation and reasoning can be illustrated in the case of Quick 1973.  The accused was a nurse in a mental hospital and assaulted a patient, which resulted in actual bodily harm.  The accused claimed he was suffering from hypoglycaemia i.e. the taking of too much insulin, which reduces blood sugar levels, and that the defence of automatism should be available to him.  The trial judge disagreed and ruled that only the defence of insanity should be used.  The defendant was convicted and appealed. The Court of Appeal ruled that Quick’s mental state arose, not from his diabetes, but from external sources i.e. the use of insulin and alcohol and that as such the defence of automatism should have been put to the jury.

The courts have also indicated that the defence of insanity will be available even if the conditions mentioned were temporary or permanent, curable or incurable; Sullivan 1984 (psychomotor epilepsy); Burgess 1991 (sleepwalking)

What is meant by the term ‘disease of the mind’ has received the attention of the courts in recent years.  In particular the statement by Lord Denning in Bratty v Attorney General for Northern Ireland 1963 to the effect that ‘any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind’.  This follows the line taken in Kemp 1957 and disapproves of the earlier case of Charlson 1955.  It is noticeable that presumably, for public protection and safety reasons, the courts are concerned with violent behaviour. 

The courts have also picked up on the question of recurrence, as this is likely to be a factor in terms of the appropriate order under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Whereas, with conditions arising from an outside source such as a blow to the head or the mis-use of medication, the condition can be more easily treated or avoided.

The courts have further restricted the defence of automatism in circumstances where the condition is self induced and this is consistent with the courts approach with the defence of intoxication where they similarly make a distinction between voluntary and involuntary intoxication. Self induced automatism is not likely to be allowed as a defence if the defendant suffers from diabetes on the basis that diabetics should have experience of their condition including appropriate diet and dosage of medication.  It may be that the defence will still be available in the case of specific intent crimes where it will be a matter for the jury to decide whether the accused formed the necessary mens rea i.e. intention at any relevant time.

The modern approach by judges to interpretation and construction continues to lean towards making guidance and direction for the jury straightforward and practical.  However, as is often the case, technical medical evidence, especially where conflicting opinions are expressed, may well continue to pose problems for juries, making their job that much more difficult.

Sleepwalker cleared of three rapes - Telegraph

BBC News - What is automatism?

Insanity and Automatism – A Response to the Law Commission




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