Insanity (Or Insane Automatism) And Non-Insane Automatism

Front 1

As laid down in the M’Naghten Rules , the defence of insanity will be available to a defendant if, at the time he acted, he was ‘labouring under such a defect of reason, from a 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 what he was doing was wrong.’

Back 1

If the defencesucceeds the Criminal Procedure Insanity and Unfitness to Plead) Act 1991allows for committal to a hospital, a supervision order with compulsorytreatment or a discharge.

Front 2

Argument for

Back 2

Arises out of a dual concern to uphold the requirements of the rule of law – which would dictate that someone not be held liable for breaking the law if he was incapable of being guided by its dictates – and to ensure that people who get the treatment they need to deal with conditions that they have that, if unaddressed, will prevent them from complying with the law in the future.

Front 3

Argument against --> that it is medically outdated – that our notions of when someone can be said to have been medically insane in acting as he did have developed since 1843, when the MR were laid down, and the law has failed to keep pace with those developments.

Back 3

Could be argued the MR are directed at identifying cases where: (1) it was impossible for the defendant to alter his conduct to make it conform to the law (which accounts for the requirement that the defendant must not have known what he was doing or must not have known that what he was doing was wrong), and (2) the defendant was unable to alter his conduct to make it conform to the law because he suffered from an internal condition which means that the defendant is likely to do what he did again, and therefore constitutes a public danger that needs to be dealt with (which accounts for the requirement that the defendant’s incapacity arises out of a ‘disease of the mind’).

Front 4

There are a very few occasions in which a defendant will claim thatalthough he/she physically performed an act the connection between his or herconscious mind and the movements of the body was so tenuous that they shouldnot be made liable for their physical deeds at all.

Back 4

They will be claiming that at the time of the commission of the actus reus of the offence they were acting as an automaton.

Front 5

Whoolley (Unreported) Divisional Courtof Queen's Bench Division -->sneezy

Back 5

Lorry driver was driving on the motorway when he suffered a sneezing fit and he hit 7 cars via domino effect --> used defence of automatism and was accepted as it was an involuntary act

Front 6

"What is missing in these cases appears tomost people as a vital link between mind and body; and both the ordinary man and the lawyermight well insist on saying that in these cases there is not 'really' a humanaction at all and certainly nothing for which anyone should be made criminallyresponsible however 'strict' legal responsibility be"

Back 6

. Hart, ‘Acts of Will and Responsibility’. Jubilee Lectures (1960) London: Stevens, p.137

Front 7

Quick [1973] QB 910

Back 7

The first thing to observe about the defence of automatism is the remark of Lawton LJ that this area of the law is a 'quagmire seldom entered nowadays save by those in desperate need of some sort of a defence.'

Front 8

Lord Denning in Bratty [1968] AC386

Back 8

"An involuntary act ... means an act which is done by the muscles without any control by the mind such as a spasm, a reflex or a convulsion, or an act done by a person who is not conscious of what he is doing such as an act done while suffering from concussion"

Front 9

The utility of the defence has been severely limited in several ways. E.g. canbe used in motoring cases

Back 9

The motoring cases suggest that the D must have no control whatsoever over his actions: Broomee v Perkins (1987) 85 Cr.App.R.321 [1987] Crim.L.R. 272 [SW1]

Front 10

Broome v Perkins (1987) 85 --> you must have NO control whatsoever

Back 10

Hypoglycemic attack à low blood sugar --> D could not remember anything about driving 5 miles and was convicted of driving without due care and attention --> appealed by saying claiming automatism -->court said they were in control of the vehicle for some period of the journey and so they were liable for offence of driving without due care and attention

Front 11

Insanity --> “Disease of the mind” --> “any mental disorder which has manifested itself in violence and is prone to recur” ·

HL in Sullivan [1984] AC 156

Back 11

External factor doctrine --> when malfunctioning of the mind is external, the legal classification is automatism BUT when it arises from an internal cause, it is classified under insanity and the burden of proof then lies on D --> epilepsy, hypoglycaemic episodes fall within insanity

Front 12

“Dissociation” is yet to be properly classified in England à short period of uncharacteristic behaviour with some degree of memory loss · T [1990] Crim LR 256

Back 12

D was raped 3 days before robbing with a mate where she said, “I’m ill” and stabbed a bystander à defence claimed automatism from ptsd --> judge ruled it was a sufficient external factor cause to come under automatism and not insanity

Front 13

Burgess [1991] 2 QB 92 ·

Back 13

Person carrying out serious sexual acts when sleepwalking was acquitted à no external cause for sleep walking and so internal à insanity à Burgess succeed on plea of insanity

Front 14

Automatismthrough intoxication --> Intoxication doctrine à Lipman [1970] 1 QB 152 · -->If intoxication is followed by a concussion froma subsequent bump on the head, court establish that intoxication was just the backgroundand another cause of automatism (the concussion) governed the behaviour

Back 14

Lipman [1970] 1 QB 152 -->D took drugs and accidentally suffocated his girlfriend as he thought he was fighting snakes à defence of automatism refused and was one of intoxication drawing on doctrine of prior fault

Front 15

A.G Ref. (No.2 of 1992) (1993) 97 Cr.App.R.429 --> à Lord Taylor

Back 15

"Automatism requires that there was a total destruction of voluntary control on the defendant's part. Impaired, reduced or partial control is not enough."

Front 16

A.G Ref. (No.2 of 1992) (1993)

Back 16

Lorry driver killed 2 people by crashing into cars in the hard section of motorway --> motorway eyes--> is this enough to say you’re completely out of control --> D was acquitted on first instance -->Attorney General got involved and referred to the C of Appeal saying they shouldn’t set a precedent like this and this shouldn’t be a principle of law --> "driving without awareness" retains some control. He would be able to steer the vehicle and usually to react and return to full awareness when confronted by significant stimuli."

Front 17

R v Henessy[SW1] (1989) 89 Cr App R 10 --> HYPO = INTERNAL, HYPER = EXTERNALBurgess [1991] 2 QB 92 (sleepwalking) Sullivan (1984) AC 156 (an epilepticseizure) Bratty [1963] AC 386 (involuntarybehaviour does not give rise to an acquittal in such cases, 'that would mean hewould be left at large to do it again') [SW1]Diabeticwho suffered from a hypoglycaemic episode à high blood sugarbecause they had not been taking their insulin à D was charged withstealing a car and they said it was because of the blackout they had and sothey had no recollection of what happened. Trial judge ruled that theappropriate defence was insanity à D appealed because diabetes doesn’t not make youinsane àon appeal, court sided with trial judge

Back 17

ml

Front 18

Specific intent --> murder as the defendant must have specifically intended to kill their victim. For example if an individual was suffering from a hypoglycemic attack and ended up killing an individual then they could plead the defence of automatism. However, this would not be a complete defence and would see the charge changed to manslaughter where specific intent is not required.

Back 18

An example of a crime involving basic intent would be that of a battery where the application of unlawful force can be intended or it can be shown that the defendant was reckless. Recklessness is therefore not defined as specific intent meaning that an individual suffering from a hypoglycemic attack cannot use it as a defence for a battery.

Front 19

Non-insaneautomatism (orsane automatism)

Back 19

This classically occurs because of some external stimuli which results in a temporary condition - such as a blow to the head. If evidence of such automatism is produced then it is for the prosecution to rebut it beyond reasonable doubt. If the defence is not rebutted then the defendant is completely acquitted

Front 20

Quick an assault case --> However, a hyperglycaemic episode brought on by failing to correctnaturally high blood sugar would be an internalcause and so fall under insanity- by the same reasoning epilepsy must be dealt with under insanity, so toosleepwalking Burgess (1991).

Back 20

The hypoglycaemic episode brought on by taking insulin and not eating. C of A ruled that this was a case of sane automatism since it had been brought on by the application of drugs (insulin) and was thus an external cause (affirmed by the HL in Sullivan (1984)). --> Trial judge quashed the conviction 3���/x��M�

Front 21

T [1990] Crim L R 256

Back 21

A woman who had been raped 3 days before joined others in a robbery and stabbed a bystander. Her defence was one of automatism arising from post-traumatic stress disorder and judge ruled that the rape could be regarded as a sufficient external cause.

Front 22

a) Priorfault (excluded from automatism)--> Quick[1973] QB 910 --> The testof foreseeability resolves prior fault

Back 22

LJ Lawton held that no acquittal if the condition “could have been reasonably foreseen as a result of either doing or omitting to do something” e.g. failing to eat properly after taking insulin à e.g. Bailey (1983) 77 CR App R 76 ·

Front 23

Defence of automatism is available unless it can be shown that D knew his acts would cause injuries to others and make him uncontrollable --> prior fault requires awareness of risk ·

Back 23

Kay v Butterworth (1945) 173 LT 191 b) Dude fell asleep while driving and hit some soldiers in the street -->he could be convicted of careless driving (not because of involuntarily omitting to exercise due care when driving) but because of his failure not to stop driving when he felt drowsy

Front 24

Prior fault or self-induced automatism Ø-->Bailey (1983) 77 Cr. App. R

Back 24

If there is a chance that D taking insulin and not eating can lead to bad things, he runs the risk and so he is reckless in becoming an automaton and so cannot succeed in a defence à self-induced non insane automatism cannot be relied upon *e.g. in the case of a diabetic)

Front 25

Bailey (1983) 77 Cr. App. R

Back 25

D went to see their ex’s new partner and was upset, V let them in and asked if they wanted a cuppa --> D had taken his insulin but had not eaten food -->D struck the V over the head with an iron bar with a wound needing 10 stitches --> D charged with grievous bodily harm --> trial judge said there was self-induced automatism and this could not be relied upon -->D appealed and C of Appeal held that the trial judge misdirected the jury but that didn’t mean the decision was unsafe

Front 26

Bailey

Back 26

Unless a defendant acted recklessly, self-induced automatism could be a defence to negative the mens rea of a crime whether of basic or specific intent; that, although the taking of alcohol or dangerous drugs was reckless behaviour, a failure to take food after insulin that led to aggressive, unpredictable and uncontrolled behaviour would be a defence to both the offences charged if the appellant had not appreciated that his omission would result in such behaviour; that, accordingly, the recorder had misdirected the jury but, in the circumstances, there had been no miscarriage of justice since the appellant had not laid the basis on which the jury could have considered the defence of automatism and, if they had been properly directed, they would still have rejected that defence --> dismissed appeal

Front 27

Automatism can only succeed in limited cases

Back 27

-motorway cases where there isabsolutely no control of the mind and body

-there must be an evidentialbasis with medical evidence beyond a reasonable doubt that cannot be disproved

-hypoglycaemic but cannot be onethat the D self-induced

Front 28

hypoglycemia --> low blood sugar

Back 28

deficiency of glucose in the bloodstream e.g. too much insulin --> not enough food

Front 29

Reform? ·

Back 29

Unsatisfactory line between automatism and insanity

“Disease of the mind” has too wide a scope · NOTE à Prosecution must disprove automatism and D must prove insanity

Front 30

R v Quick; R vPaddison - [1973] 3 All ER 347

Back 30

Ratio: Lawton -->In our judgment the fundamental concept is of a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease.

Front 31

Quick

Back 31

Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility. A self-induced incapacity will not excuse nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals whilst taking insulin.

Front 32

Quick

Back 32

Facts: The appellant was a nurse employed at a mental hospital. --> He was charged with assault occasioning actual bodily harm to a paraplegic spastic patient at the hospital In evidence the appellant said that he could not remember assaulting the patient. --> He admitted that he had been a diabetic since the age of seven, and on the morning of the day in question he had taken insulin as prescribed by his doctor; he had then had a small breakfast and no lunch; thereafter, before the assault took place, he had been drinking, the drinks including whisky and a quarter of a bottle of rum. · --> On appeal Issue: Whether a mental condition arising from hypoglycaemia does amount to a disease of the mind.

Front 33

In this case Quick's alleged mental condition, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed the working of his mind.

Back 33

Itfollows in our judgment that Quick was entitled to have his defence ofautomatism left to the jury and that Bridge J's ruling as to the effect of themedical evidence called by him was wrong.

Front 34

Bratty v Attorney- General for Northern Ireland

Back 34

Bratty had been accused of the murder of a younggirl. He put forward three defences: first, that at the material time he was ina state of automatism by reason of suffering from an attack of psychomotorepilepsy; secondly, that he was guilty only of manslaughter since he wasincapable of forming an intent on the ground that his mental condition was soimpaired and confused and he was so deficient in reason that he was not capableof forming such intent; and thirdly, that he was insane.

Front 35

The trial judge left the issue of insanity to the jury (which they rejected) but refused to leave the other two issues. The House of Lords adjudged on the evidence in that case that he had been right to rule as he did; but accepted that automatism as distinct from insanity could be a defence if there was a proper foundation in the evidence for it

Back 35

Per LordDenning --> “No act is punishable if it is done involuntarily: and aninvoluntary act in this context - some people nowadays prefer to speak of it as"automatism" - means an act which is done by the muscleswithout any control by the mind, such as a spasm, a reflex action or aconvulsion; or an act done by a person who is not conscious of what he isdoing, such as an act done whilst suffering from concussion or whilstsleep-walking.”·

Front 36

Per Lord Denning. The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than to allow a dangerous person to be at large. Any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind

Back 36

· Held, (1) that there were inlaw two types of automatism, namely, insane and non-insane automatism.

That a judge was only under a duty to leave the issue of automatism ofeither type to the jury where the defence had laid a proper foundation for sodoing by adducing positive evidence in respect of it, which was a question oflaw for the judge to decide ·

Front 37

(2) That, where, as here, the only cause alleged for the "unconscious" act in question was a defect of reason from disease of the mind, namely, psychomotor epilepsy, and that cause was rejected by the jury, there could be no room for the alternative defence of automatism, either insane or non-insane, and that, accordingly, the trial judge was right in not leaving that defence to the jury ·

Back 37

(3) That since in the circumstances the appellant must be deemed to have been a sane and responsible person at the time of the killing, there were no grounds for the view that he lacked an intent to kill or cause grievous bodily harm to the deceased, and that, therefore, there was no issue of manslaughter to be left to the jury · Per curiam. If after considering evidence of the issue of automatism a jury are left in real doubt whether or are not sure, so as to be satisfied beyond reasonable doubt or that the act was involuntary they should acquit.

Front 38

Broomev Perkins(1987) 85 Cr.App.R.321

Back 38

Facts: · Hypoglycaemic attack --> low blood sugar -->D could not remember anything about driving 5 miles --> Medical evidence suggested that it was possible for someone in his state to complete a familiar journey without being conscious of doing so, and that although his awareness of what was going on around him would be imperfect, he would be able to react sufficiently to steer and operate the car, even though not very well.

Front 39

Broome --> there must be a total destruction of voluntary control on the defendant’s part

Back 39

If the defendant retains impaired, reduced or partial control the defence is not available.

An act is done in a state of automatism if it is done by the body without control by the mind, (eg it is a spasm or a reflex), or if it is done by a person who is not conscious of what he is doing.

The act may be described as involuntary, but will not be regarded as such simply because the defendant does not remember it or could not resist the impulse to do it.

A person may avoid liability for a criminal act performed in a state of automatism as the conduct in question will lack the necessary requirement of voluntariness.

Front 40

Held: since the accused was able to exercise some voluntary control over his movements, he had not been acting in an entirely involuntary manner, and therefore the defence of automatism was not available. ·

Back 40

You must have NO control whatsoever

In law automatism is limited to cases where there is a total destruction of voluntary control; impaired or reduced awareness will not do

Front 41

R v. BURGESS [1991] 2 Q.B. 92

Back 41

The appellant was tried on a count of wounding with intent to do grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861 -->he had attacked Katrina Curtis by hitting her on the head first with a bottle when she was asleep, then with a video recorder and finally grasping her round the throat.

His defence was that he lacked the necessary intent, in that, during undisputed violence to the victim, he was sleep walking and suffering from non-insane automatism.

Front 42

Burgess --> Expert medical evidence was called by the prosecution and the defence. The judge, on the assumption that the appellant was unconscious at the time of his acts, ruled that the medical evidence adduced concerning automatism amounted to evidence of insanity within the M'Naghten Rules and was not merely evidence of non-insane automatism. · The jury returned a verdict of not guilty by reason of insanity and, on 20 July 1989, in accordance with section 5 of the Criminal Procedure (Insanity) Act 1964, D was ordered to be admitted and detained in such hospital as directed by the Secretary of State.

He appealed against the verdict by certificate of the trial judge on the ground that the judge had erred in his ruling Issue: ·

Back 42

Where the defence of automatism is raised by a defendant, two questions fall to be decided by the judge before the defence can be left to the jury: 1) Whether a proper evidential foundation for the defence of automatism has been laid. 2) Whether the evidence shows the case to be one of insane automatism, that is to say, a case which falls within the M'Naghten Rules, or one of non-insane automatism.

Front 43

Internal = insanity and no defence, external = autonomy and defence

Lord Lane CJ considered this 'disease of the mind' to be due to an "internal" cause. The ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind

Back 43

Application: It seems to us that on this evidence the judge was right to conclude that this was an abnormality or disorder, albeit transitory, due to an internal factor, whether functional or organic, which had manifested itself in violence. It was a disorder or abnormality which might recur, though the possibility of it recurring in the form of serious violence was unlikely.

Front 44

Per curiam. (i) A danger of recurrence of a mental disorder manifesting itself in violence may be an added reason for categorising the condition as a disease of the mind but the absence of such danger is not a reason for saying that it cannot be a disease of the mind (ii) Attention is drawn to the apparent incongruity of labelling such a disability as insanity Court essentially saying in this situation that sleepwalking was a mental illness

Back 44

Violent sleepwalking ain't normal

Front 46

R v Hennessy

The appellant, adiabetic, was charged with taking a car and driving while disqualified.

At the time of theoffence he said he had been having marital and employment problems. He had not been eating and he had not been taking his insulin. He remembered very few details of the day. He said he did not recalltaking the car.

The defendant, who isdiabetic, claimed that he did not know what he was doing when the offence wascommitted because he was suffering from hyperglycaemia, having failed to takeinsulin for some days.

He sought to raise thedefence of automatism.

Back 46

Trial judge rejected this on the ground that his alleged mental condition, if it existed, was caused by disease, namely diabetes.

His general practitioner was called to give evidence -->described in broad outlines the effect of diabetes --> Added that anxiety or depression can increase the blood sugar level, a person's ability and awareness of what is going on could be impaired if there were 'associated symptoms and he had other conditions and worries at the same time … ' The defence to these charges accordingly was that the appellant had failed to take his proper twice a day dose of insulin for two or three days and at the time the events in question took place he was in a state of automatism and did not know what he was doing. Therefore it is submitted that the guilty mind, which is necessary to be proved by the prosecution, was not proved, and accordingly that he was entitled to be acquitted.

Front 47

· Accordinglythis appeal must be dismissed

Stress, anxiety and depression were not in themselves,either separately or together, external factors of the kind capable in law ofcausing or contributing to a state of automatism since they were neither uniquenor accidental factors but constituted a state of mind which was prone torecur. Accordingly, since hyperglycaemia caused by an inherent defect and notcorrected by insulin was a disease and since the functioning of the appellant'smind was disturbed by disease and not by some external factor the judge'sruling had been correct.The appellant kicked a man violently on the head and body while suffering a seizure due to psychomotor epilepsy. At his trial he pleaded not guilty to causing grievous bodily harm with intent and inflicting grievous bodily harm. He gave evidence, which was not disputed, that he had no recollection of the incident, and two medical experts, whose evidence was also uncontested, testified that it was strongly probable that the attack took place during the third, or post-ictal, stage of the seizure, when the appellant would make automatic movements of which he was not conscious. At the close of the evidence, the judge ruled, in the absence of the jury, that they should be directed that if they accepted the evidence it would not be open to them to bring in a verdict of not guilty but that they would be bound to return a special verdict of not guilty by reason of insanity. The appellant thereupon changed his plea to guilty of assault occasioning actual bodily harm, and was convicted accordingly. On appeal against conviction on the ground that the judge should have left the defence of non-insane automatism to the jury, the Court of Appeal dismissed the appeal.On appeal by the appellant: -Held, dismissing the appeal, that a disorder which so impaired the appellant's mental faculties of reason, memory and understanding, that at the time of the commission of the act he did not know what he was doing or, if he did know, that he did not know that it was wrong, was a "disease of the mind" causing a "defect of reason" within the M'Naghten Rules, whether the aetiology of the impairment was organic or functional and whether it was permanent or transient and intermittent and that, accordingly, despite a reluctance to attach the label of insanity to a sufferer from psychomotor epilepsy, the proper verdict on the evidence was the special verdict of not guilty by reason of insanity (post, pp. 171F - 172A, C-E, 173F - 174A).

Back 47

Stress, anxiety and depression can no doubt be the result of theoperation of external factors, but they arenot, it seems to us, in themselves separately or together external factors ofthe kind capable in law of causing or contributing to a state of automatism.They constitute a state of mind which is prone to recur. They lack the featureof novelty or accident -->It does not come within the scope of the exception 'some external physical factor such as ablow on the head … or the administration of an anaesthetic … '

For thosereasons we reject the arguments, able though they were, of counsel for theappellant.

Front 48

R v Sullivan [1983] 2 All ER 673 --> epilepsy

Back 48

The appellant kicked a man violently on the head and body while suffering a seizure due to psychomotor epilepsy. At his trial he pleaded not guilty to causing grievous bodily harm with intent and inflicting grievous bodily harm. He gave evidence, which was not disputed, that he had no recollection of the incident, and two medical experts, whose evidence was also uncontested, testified that it was strongly probable that the attack took place during the third, or post-ictal, stage of the seizure, when the appellant would make automatic movements of which he was not conscious.

-Held, dismissing the appeal, that a disorder which so impaired the appellant's mental faculties of reason, memory and understanding, that at the time of the commission of the act he did not know what he was doing or, if he did know, that he did not know that it was wrong, was a "disease of the mind" causing a "defect of reason" within the M'Naghten Rules, whether the aetiology of the impairment was organic or functional and whether it was permanent or transient and intermittent and that, accordingly, despite a reluctance to attach the label of insanity to a sufferer from psychomotor epilepsy, the proper verdict on the evidence was the special verdict of not guilty by reason of insanity

Front 49

R v Sullivan [1983] 2 All ER 673 at 677–678 in the speech of Lord Diplock

Back 49

“mind” in theM'Naghten Rules is used in the ordinary sense of the mental faculties ofreason, memory and understanding. If the effect of a disease is to impair thesefaculties so severely as to have either of the consequences referred to in thelatter part of the rules, it matters notwhether the aetiology of the impairment is organic, as in epilepsy, orfunctional, or whether the impairment itself is permanent or is transient andintermittent, provided that it subsisted at the time of commission of the act.The purpose of the legislation relating to the defence of insanity, ever sinceits origin in 1880, has been to protectsociety against recurrence of the dangerous conduct.’