Defences

1. Defences Automatism

2. Lesson Objectives • I will be able to explain the meaning of the defence of automatism • I will be able to distinguish between insane and non-insane automatism • I will be able to explain cases that illustrate the defence of automatism • I will be able to apply the rules to a given situation

3. Automatism This requires the defendant to show that his act was: • Involuntary • Due to an external factor

4. Involuntary Act • Automatism was defined in Bratty v AG for Northern Irelandas an act ‘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 done whilst sleepwalking’

5. The defendant's act must be involuntary in that that his mind is not controlling his limbs in a purposeful manner, This is similar to Bratty (1963), considered in insanity where the defendant claimed that ‘a blackness came over him’. However, it should be noted that this has to be a total lack of awareness, not just partly automatic as in the case of A-G Reference (No. 2 of 1992).

6. The External Factor This requirement is that the automatism has been caused by an external factor such as a blow on the head rather than an internal factor such as a disease. Automatism must not be self-induced (drink/drugs) It is self-induced when it results from the defendant’s actions or failing to take action.

7. The difference between insanity and automatism This distinction is key to the understanding of these defences. The basic rule is that insanity results from factors internal to the defendant and automatism arises as a result of external factors. This is sometimes known as insane automatism and non-insane automatism. Contrast Quick (1973) with Hennessey (1989).

8. The main points

9. Summary

10. Extras

11. Introduction The basis of this defence is the defendant’s inability to control his or her actions. It has long been accepted that a defendant will only face criminal liability for his or her actions if they were performed voluntarily. With the defence of automatism, a defendant claims that the actus reus was involuntary and argues that therefore he or she should not be convicted of the offence. Since the defendant is denying the actus reus, automatism may be used as a defence to all crimes, including those classed as strict liability offences.

12. Elements In order to rely on automatism, the defendant must show that there was a complete loss of voluntary control. The total loss of control must be due to an external factor. This is the key difference between insanity and automatism. The courts have given examples of what constitutes an external factor. These include a blow to the head, being stung by a bee, being given anaesthetic, a reflex action, being hypnotised and suffering from severe shock or post-traumatic stress disorder.

13. Self-induced automatism If the automatism was caused by voluntary consumption of drugs or alcohol, the defendant cannot rely on this defence and will be subject to the rules of intoxication instead. If the defendant’s automatism is caused by something other than alcohol or drugs, he or she may be able to use the defence, although this is dependent upon on whether he or she knew there was a risk of getting into such a condition.

14. Burden and standard of proof If the defendant seeks to rely on automatism, he or she must raise the defence and will usually require medical evidence in order to do so. Once the defence has been raised, it is for the prosecution to disprove.

15. Effect Automatism acts as a complete defence, and a successful plea means that the defendant will be found not guilty.

16. Evaluation (1) Leads to irrational and unfair results The courts have tried to restrict the availability of automatism because it results in a complete acquittal, despite the fact that the defendant has committed what would otherwise be a crime. By making it as hard as possible to rely on the defence, the courts hope that only genuine automatons can rely on it. This is understandable but can have harsh results.

17. Evaluation (2) Leads to irrational and unfair results The distinctions made between internal and external factors have been criticised in cases such as Quick and Hennessy. Here, both defendants suffered from diabetes but only one of them could rely on automatism. The main justification behind the distinction is that an internal factor is more likely to reoccur than an external one, and thus the public is more likely to be at risk from a defendant with such a condition. Critics argue that this may be true if someone is suffering from mental illness and attacks someone – he or she may be more likely to do it again than someone who attacks the victim after a knock to the head. However, in the diabetic cases, both were suffering from the same disease so the distinction is illogical.

18. Reform (1) Extending automatism It has been suggested that the defence should be extended to cover all cases that can be controlled by drugs or eating and drinking, e.g. epilepsy and diabetes. This would go some way to reducing the illogical distinctions often made. The Law Commission’s Criminal Code Bill also proposes the inclusion of sleepwalking under the defence. This would change the ruling in Burgess, where the condition was classed as insanity, and follows the Canadian case of Parks. In this case, a defendant, who drove several miles to the home of his in-laws and murdered his mother-in-law while sleepwalking, successfully relied on automatism and was acquitted.

19. Reform (2) Abolishing internal and external factors Some have suggested going a stage further and abolishing the notion of internal and external factors. Before this could be done, however, the law on insanity would need to be updated.