Automatism as a Defence

John Rumbold

• Editore: Routledge
• Anno: 2018
• ISBN:
  9781351787826
• Edizione: 1
• Argomento: Medicine
• Categoria: Sleep Medicine

Automatism is a notoriously difficult subject for law students, lawyers and judges. This book explores the science and medicine of sleep disorders and examines how the criminal process deals with such disorders when presented as a defence. It systematically examines the legal doctrines involved, and their implications for the use of the evidence key to establishing automatism, while also exploring the medical conditions that can cause automatism (particularly epilepsy, sleepwalking and diabetes). This book is a valuable resource for law students, lawyers, judges and expert witnesses.

1 Automatism

What is it?

Definitions of automatism

Automatism is the defence of the person who was not a moral agent; who was effectively an automaton at the time of the illegal act. Although it is a defence for all crimes, it is far from a panacea for the defendant. There are several limitations on the defence. Also, it is typically argued in circumstances where the defendant does not and cannot contend that the illegal act occurred. Automatism has been described by the courts as a

quagmire . . . seldom entered nowadays save by those in desperate need of some kind of a defence.

(Lawton LJ in Quick)

The doctrine of automatism has confused law students, lawyers, legal academics, and expert witnesses over the years. The humble aim of this monograph is to dispel some of this confusion, whilst simultaneously providing deeper analysis of the doctrine. This work arises from my doctoral research, which focused on forensic parasomnias and expert evidence (Rumbold, 2015). Sleepwalking is in many ways a paradigmatic example of automatism; the capacities normally associated with criminal responsibility are inhibited, but the capacity for potentially criminal actions are preserved. However, this work will deal with other causes of automatism too.

The terminology used plays a significant part in the confusion. Automatism has several different definitions in different contexts. Another source of confusion is the use of the term automatism to describe both non-insane automatism (automatism simpliciter) and insane automatism. Insane automatism is simply the insanity defence, and in this monograph that term will generally be used to avoid confusion. Medical automatisms are stereotyped, non-purposeful and repetitive behaviours, occurring during psychomotor seizures. They are most commonly oral (e.g. lip smacking or chewing) or manual (e.g. patting or fumbling). These behaviours would be unlikely to cause any difficulties for the court.¹ Legal automatism, however, is defined in English law as either total loss of voluntary control (non-insane) or by the McNaughtan Rules (insane), but there are a number of different formulations (see Chapter 2). The conflation of medical and legal automatism has caused issues for expert witnesses. In the case of Clarke (Trevor Norman), the expert witness for the prosecution asserted that hypoglycaemia had never been reported as a cause for automatism.² This seems to be a fundamental misunderstanding of the nature of medicolegal automatism (and the application of evidence-based medicine in expert evidence).

There is some legal argument over whether or not total loss of control is required when the matter is not a motoring offence. This formulation came from the problematic case of Attorney-General’s Reference (No. 2 of 1992). Here it was alleged that “highway hypnosis” had produced a state of mesmerism where the lorry driver was able to make minimal adjustments to stay in his motorway lane, but unable to avoid the fatal collision in question. This case and the case of Isitt would arguably have been better decided on the basis of an inherent predisposition that must have existed, which would have been an insane cause of automatism. The 2010 Crown Court Bench Book (Judicial Studies Board, 2010) stated that:

To be an involuntary act the loss of control must be complete. Deliberate and purposeful driving is inconsistent with involuntariness.

(p. 315)

The requirement that there must be a complete loss of self control has been condemned across the board by leading commentators on the law as “harsh” (MacKay), “very harsh” (Smith, Herring) and “unduly harsh” (Ashworth) (Smith, no date; Mackay, 1995; Ashworth, 2009; Herring, 2010).

Wigley talks about “automaticity”, the commonly recognized experience whereby we can automatically perform well-practiced tasks (Wigley, 2007). This phenomenon can be observed with all “overlearned” behaviours that arise from procedural memory rather than declarative memory. However, a car driver who is in automaticity (or on “autopilot”) and thinking about other things whilst driving a familiar route will be brought out of his reverie when something untoward occurs. Likewise, a lorry driver would be alerted by hazard lights on the hard shoulder. This is fundamentally different from the person in a state of automatism, who cannot do this. Legal automatism requires automaticity in combination with unconsciousness (in the sense of unawareness).

It could be argued a total loss of control would render the individual unable to walk or perform any other motor activity. The bipartite formulation of Lord Denning in Bratty has some appeal:

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 sleepwalking.

This inclusion of unconsciousness could be argued to include the denial of mens rea, rather than legal automatism per se. This confusion is partly down to the evolving understanding of automatism in the common law.

The early articles about automatism use phrases like “conscious volition” that demonstrate no separation between consciousness and voluntariness and often refer to a denial of mens rea. In Quick, the prosecution counsel commented that:

When mens rea is required, somnambulance would be automatism, and the Crown would have to prove mens rea.

Viscount Kilmuir LC commented in the earlier case of Bratty that:

if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea – if indeed the actus reus – has not been proved beyond reasonable doubt.

This suggests that the denial of either the actus reus or the mens rea was considered the basis of automatism. However, in the case of Sullivan, it was commented that:

The unusual feature of the present case is that the whole of the actus reus occurred within a period of unconsciousness.

This implies that automatism was still not seen as a denial of the actus reus.

Smart in 1987 stated that:

The difficulty is that voluntariness of conduct is not invariably accepted as part of the actus reus but is sometimes thought to relate to mens rea. Another view enquires whether the doctrine of voluntary conduct is itself accepted [Glanville Williams].

(Smart, 1987)

Automatism is seen differently in New Zealand, as the case of Cottle demonstrates:

“automatism [is] a condition resulting in the doing of an act without conscious volition”, that might occur due

(a) to a healthy mind as in somnambulism

(b) to a mind temporarily affected by a drug, an intoxicant or a blow

(c) to a mind where there is present an abnormal condition capable of designated a mental disease in which case the McNaughtan rules would apply.

(Gresson, P. in Cottle)

There is consequently uncertainty as to whether automatism is a denial of the actus reus or mens rea in New Zealand (Law Commission, 2013).

The conditions that cause states of reduced or absent consciousness can support three distinct defences, so in this monograph the term “medicolegal automatism” is used to describe these states. There are two main definitions that fit this concept.

Fenwick defined automatism as follows:

An automatism is an involuntary piece of behaviour over which an individual has no control. The behaviour is usually inappropriate to the circumstances, and may be out of character for the individual. It can be complex, co-ordinated and apparently purposeful and directed, though lacking in judgment. Afterwards the individual may have no recollection or only a partial and confused memory for his actions. In organic automatisms there must be some disturbance of brain function sufficient to give rise to the above features.

(Fenwick, 1987)

Another way to define medicolegal automatism would be mental absence, or the “missing defendant” as Eigen puts it – a defendant whose incapacity is not due to a partial delusion affecting their perception of their actions, but to a partial or total lack of consciousness resulting in their actions being both unintentional and involuntary (Eigen, 2003). In fact, non-common law jurisdictions often use the term “unconsciousness” to describe these states in their criminal codes. This is another term which causes difficulty for medical expert witnesses, who would understand something rather different as unconsciousness.

McSherry agrees with this formulation for automatism:

While there have been some cases where automatism has been equated with a complete lack of consciousness, because automatism is related to the concept of involuntariness rather than consciousness, a degree of awareness or cognitive function is not necessarily fatal to automatism being accepted by the trier of fact.

(McSherry, 2004)

The defendant at a criminal trial for a serious offence will be held criminally responsible where he has committed a guilty act (actus reus) with a guilty mind (mens rea) and without a relevant excuse (strict liability offences are more complicated; see further below). It is for the prosecution to prove that the offence is made out by proving the actus reus and mens rea, and they may have to prove the lack of a relevant excuse; that is, the prosecution has the burden of proof. Therefore, the legal defences that can be argued when the defendant has suffered an episode of medicolegal automatism are:

1 lack of the requisite actus reus (involuntariness)

2 lack of the requisite mens rea (unconsciousness)

3 insanity (lack of reason).

Figures 1.1 and 1.2 demonstrate the required elements for criminal liability and the basis for these three defences as per McSherry:

Figure 1.1 Required elements for criminal liability

Figure 1.2 Mental condition defences

(Above figures from pp. 582 and 583 “Voluntariness, Intention, and the Defence of Mental Disorder: Toward a Rational Approach” by B. McSherry (2003), with kind permission)

Legal automatism, or automatism simpliciter, is strictly a denial of the actus reus (in English law at least). This requires a total loss of control (in the motoring cases at least). It does not mean that the physical act was not carried out (which would make the offence inchoate). The actus reus, or guilty act, involves more than the commission of the necessary physical act, it requires that the act be voluntary (or at least not involuntary). This means that for many so-called strict liability offences, there is an implied fault element. There is no advantage in arguing this rather than denial of mens rea, unl...