Special feature on automatism

Automatism in English common law is a confusing legal doctrine and long overdue for reform. It confuses lawyers and medics alike, and the distinction between internal and external causes is nonsensical in terms of medical science. The Law Commission has published a discussion document on reform of the law on insanity and automatism, which are the two general mental condition defences. Keele University hosted a medico-legal seminar on automatism in June 2013 with one of the aims being the generation of dialogue and debate between doctors and lawyers to inform the Criminal Law Commissioner. The discussion document published in July 2013 cites presentations at the seminar several times.

This special feature relates the content of the presentations and the productive discussions that ensued. Both the speaker and delegates were from a mix of disciplines, mostly biomedical and law. This produced productive debates about the difficulties of aligning medical evidence with legal doctrines. In particular, there was some vigorous but amicable debate about the role of alcohol in sleepwalking, and whether the presence of a brain tumour might excuse sexual offences.

The term automatism is used in medicine to denote repetitive, stereotyped actions, usually in the context of complex epileptic seizures. Legal automatism encompasses a whole range of more complex actions, performed where the accused has no capacity on grounds of insanity or involuntariness. This distinction has caused difficulties for least one expert witness, who pronounced in the case of Clarke¹ that hypoglycaemia could not cause automatism.

Automatism has been described as a ‘quagmire … seldom entered nowadays save by those in desperate need of some kind of a defence’.² Although there are only a few cases where the issues of sane and insane automatism both arise,³ when they do, the direction to the jury is very complicated, and judges have erred in the past. For example, the direction of Henriques J. in Lowe⁴ included these directions to the jury on non-insane and insane automatism:

2. Consider non-insane automatism [forcible awakening]

Have the prosecution proved so that you are sure that the Defendant’s state of mind was not so affected by a forcible awakening that at the time of the killing his state of mind was such that his ability to exercise voluntary control was totally destroyed.

N.B a forcible awakening is an internal factor [a confusional arousal would be regarded as an external cause]

If ‘yes’ – the prosecution have excluded non-insane automatism. Consider question 3. If ‘no – consider question 4 (omitting question 3).

3. Consider insane automatism

Have the Defence established on the balance of probabilities that the Defendant’s state of mind was so affected by an inbuilt tendency of the Defendant’s to sleepwalk that at the time of the killing his state of mind was such that his ability to exercise voluntary control was totally destroyed.

N.B. The inbuilt tendency of the person to sleepwalk is an insane automatism.

If ‘yes’ – verdict not guilty by reason of insanity.⁵

The section in bold is, the authors suggest, the incorrect part of the definition of insane automatism. It is the M’Naghten Rules that apply here (see below). This sort of error is an almost inevitable consequence of the very complicated law in this area.

The distinction between non-insane automatism and insane automatism is particularly confusing. Non-insane automatism is considered ‘automatism proper’, whereas insane automatism is nothing more or less than the insanity defence.

Sane automatism, according to current law, requires an external cause. The defence only has to provide enough evidence for the issue of automatism to put to the jury (the evidential burden, which will almost inevitably require medical evidence). Thereafter, the prosecution has to prove beyond reasonable doubt that the defendant was acting voluntarily. For the defence to succeed, the defendant has to suffer a total loss of control. Success results in a plain acquittal.

The insanity defence, by contrast, requires an internal cause (‘disease of the mind’). It is for the defence to prove, on the balance of probabilities, that the defendant was insane. Insanity is defined by the M’Naghten Rules as where the defendant was at the time of the illegal act ‘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’. Success results in an acquittal, but this time by the special verdict of ‘not guilty by reason of insanity’. ^a

Hence, the two defences have different burdens of proof, standards of proof, different definitions and different outcomes for the accused (see Table 1).

OPEN IN VIEWER

Table 1.

Differences between the two defences with regard to proof, standard of proof, definition, verdict and disposal.

Type of automatism	Non-insane	Insane
Burden of proof	Prosecution	Defence
Standard of proof	Beyond reasonable doubt	Balance of probabilities
Definition	Total loss of voluntary control	M’Naghten Rules
Verdict	Not guilty	Not guilty by reason of insanity
Disposal	Free without restrictions	May be subject to outpatient supervision or detention in special hospital

This scheme leaves out two further possibilities. The first is that the defence runs an automatism defence but the prosecution respond by trying to prove that the defendant was actually insane in order to ensure that any acquittal will take the form of the special verdict. The second is that the defence runs a lack of mens rea defence. Again, the judge can direct the jury to consider the insanity verdict.

Lord Denning in Bratty v. Attorney General for Northern Ireland commented that automatism is

 … 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.⁶

Subsequently it has been held in Burgess⁷ that this is not correct, and that the only defence available to a sleepwalker is insanity, not automatism. The definition in Bratty has two distinct limbs, the former of which refers to involuntariness, the latter unconsciousness. Therefore, for certain causes of legal automatism, it is conceded there can be some level of control – indeed, for most criminal acts, there is a minimum level of control necessary.

The fact that parasomnias, diabetes, epilepsy and other medical causes of lost or reduced consciousness are not psychiatric conditions per se is irrelevant. Insanity is a legal rather than a medical concept, and the classification of epilepsy and hyperglycaemia in diabetes (but not hypoglycaemia due to treatment of diabetes) as causes of insane automatism illustrates that ‘disease of the mind’ only entails a condition that affects the mind or the brain. Doctors and jurors alike are reluctant to label sleepwalkers, epileptics and diabetics as ‘insane’, partly because of the stigma that is attached to that term.

The Law Commission’s proposals, if implemented, will take mental condition defences in a new direction, acknowledging the advances in medical science and the difficulties posed by the current law.⁸ They reflect clear thinking and thorough consultation with the stakeholders. All defendants with a recognised medical condition would be excused, but would be subject to compulsory supervision if necessary, regardless of whether their condition was adjudged as having an internal or external cause. Unfortunately, they will continue to not provide an excuse for the diabetic driver who has lost effective control, but not lost total control.

Whether the changes, if adopted, would satisfy the general public is a moot point, but at least the public could be reassured that any necessary medical supervision was mandatory. The changes proposed in the discussion document provide a logical and consistent framework for mental condition defences that will reflect modern medical science, and it is hoped that the government will give them serious and urgent consideration.