Criminal Law Automatism and Mental Illness

1. Criminal LawAutomatism andMental Illness

2. Mental Disability • Many defendants will be suffering from learning disabilities or some form of mental illness. Does this affect their criminal liability? • very limited impact on liabilityexcept for: • defence of ‘insanity’ • anachronistic conceptual framework • defence of ‘diminished responsibility • only for murder • more likely to affect sentencing

3. The ‘voluntary’ act • Another general principle: • actus reus must be ‘voluntary’ - defendant must have been exercising free choice in committing the crime • for example, look at the defences of justified force/self defence or duress • rationale: unjust to punish where D unable to exercise free choice • But this issue must be raised by D - presumption that act is voluntary

4. Automatism • General principle of volition: • can arise as a defence with automatism. Criteria are: • D acts involuntarily: eg concussed, under administration of anaesthetic, psychological trauma or blackout • Hill v Baxter 1957 - claimed accident was result of ‘blackout’ - Divisional Court agreed that automatism could be a defence but required an evidential basis • complete [not just reduced] destruction of voluntary control • AG’s Ref 2/92- trance induced by featureless motorway not sufficient

5. Non-insane automatism: not the result of mental disorder unfettered acquittal Insane automatism: result of mental disorder special verdict Automatism Automatism as a defence can be of two types: resulting a) from mental illness b) not from mental illness

6. ‘Insane automatism’: procedure • M’Naghten’s Case 1843 - Tindal lays down elements of defence • ‘every man is presumed to be sane….until the contrary be proved’ • burden of proof on accused • but Lambert [2001] 3 All ER 577 • fitness to plead - s.2 Criminal Procedure (Insanity) Act 1991: Antoine [2000] 2 All ER 208; H(2004) 1 All ER 412 • did D do act charged? was he under a disability? • special verdict: Trial of Lunatics Act 1883 as amended by s.1 Criminal Procedure Act 1964 • discretion on sentence: 1991 Act

7. Defence of ‘Insanity’: substance • Elements of defence in Tindal CJ’s judgment in M’Naghten’s Case 1843 • accused must prove (on the balance of probabilities) that he was suffering from: • a defect of reason • resulting from a disease of the mind • with the consequence that: • D did not know nature or quality of act OR • D did not know the act was wrong

8. ‘Disease of the mind’ • ‘Insane automatism’ - involuntary act must be shown to be due to ‘disease of the mind’ • ‘disease of the mind’ marks boundary between sane and insane automatism • insanity and ‘disease of the mind’ are legal (not medical) concepts • Note: criminal law does not follow s.1(2), Mental Health Act 1983 • ‘mental disorder’ means mental illness, arrested or incomplete development of the mind, psychopathic disorder and any other disorder or disability of the mind

9. ‘Disease of the mind’ • Legal concept of ‘insanity’ means: • D can come within Mental Health Acts and still be criminally responsible: eg psychopaths • D can come outside Mental Health Acts and still be regarded as raising defence of insanity rather than non-insane automatism: epileptics

10. ‘Disease of the mind’ • Consider Kemp 1957: • suffering from arteriosclerosis and attacked wife with hammer • the question was whether the mental faculties of reason, understanding and memory had been impaired - if so, disease of the mind and irrelevant ‘…whether the condition…is curable or incurable, transitory or permanent’ (Devlin)

11. Epilepsy as ‘insanity’ Consider Bratty 1963: • epileptic strangles girl in psycho-motor episode - judge leaves only issue of insanity to jury – conviction upheld by House of Lords • ..any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal(Denning)

12. Epilepsy as ‘insanity’ • Bratty upheld in Sullivan 1983: • epileptic attacks friend during epileptic fit - judge rules this is defence of insanity - upheld by House of Lords • ..it matters not whether the aetiology of the impairment is organic..or functional, or whether the impairment is transient and intermittent… The purpose of the legislation…has been to protect society against recurrence of dangerous conduct. (Diplock) • Diplock suggests that ‘external’ factor causing impairment [blow to head, reaction to anaesthetic] is not ‘disease of the mind’

13. Breadth of ‘insanity’ • Should an epileptic be treated as ‘mad’? • judgments suggest that policy considerations (future danger) are uppermost in defining ‘disease of the mind’. • Other illnesses: • internal/external factor approach by Diplock in Bratty • leads to sleepwalkers (Burgess 1991) and diabetics being classed as ‘mad’

14. Diabetes as ‘insanity’ • If diabetics fail to take insulin or to eat, drink too much or get over-tired: • hypoglycaemia - deficiency in blood sugar levels - too much insulin for blood sugar levels to cope with • hyperglycaemia - deficiency of insulin and excess of blood sugar levels • Sufferer can become violent and incapable of control

15. Diabetes as ‘insanity’ • Consider Quick 1973:diabetic, took insulin but drank and didn’t eat. Assaulted patient in his care • pleaded guilty when judge ruled that this was defence of insanity • Court of Appeal quashes conviction:a malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs…., alcohol and hypnotic influences cannot fairly be said to be due to disease(Lawton)

16. Diabetes: external or internal factor? • Emphasis on ‘external factors’ reinforced inSullivan, Hennessy1989, Bingham1991 • overdose of insulin - external factor - acquittal? • failure to take insulin - internal factor - hospital order?

17. Diabetes: self-induced? • InQuick, Lawton raised additional issue: • ….a self-induced incapacity will not excuse…nor will one which could have reasonably been foreseen…. • In Bailey 1983, Court of Appeal disapproved of this - self-induced incapacity could be a defence except where induced by alcohol or proscribed drugs.

18. Defect of Reason • InClarke1972: • shoplifting, plea of non-intent but absent-minded. Doctor gave evidence of depression - judge ruled that this was plea of insanity! • Court of Appeal disapproved of this - even if depression was ‘disease of the mind’, forgetfulness is not a defect of reason.

19. Nature or Quality of Act • Shows extreme level of functional impairment required: • refers to physical nature of act and excludes irresistible impulse or uncontrollable desire even if emanating from mental illness • excludes psychopaths - Sutcliffe (Yorkshire Ripper) • ‘The mere fact that a man thinks he is John the Baptist does not entitle him to shoot his mother’ (Hewart LCJ)

20. ‘Not knowing it was wrong’ • Alternative to not knowing the nature of act • But D must believe it is not legally wrong, not simply that it was morally wrong • Windle 1952

21. Reform • Butler Committee on Mentally Disordered Offenders (Cmnd 6244) • recommended verdict of not guilty on evidence of mental disorder (paras 18.14-18.36) • broader defence of non-insane automatism in clauses 33 and 34 • Disposal recommendations implemented in 1991 Act