Discuss about the Criminal Law Automatism.
Automatism is a type of defense which is used in the criminal law cases. Automatism is one of the types of medical conditions, which is related to the mental state of the defending party. It can be seen as lack of excuse, or culpability, or the lack of voluntariness. This denotes that the defending party was not aware about their actions while doing or making the particular move, which resulted in the constitution of an illegal act[1].
In a number of jurisdictions, there is a distinction between the sane and the insane automatism. As per the M’Naghten Rules, in case of the involuntariness being caused by a disease of mind, i.e., mental illness, it has to be treated as an insane automatism and in these situations, it results in the verdict being a special one, i.e., of not being guilty as a result of insanity. For the defendant, this has major practical implications since they can still be held in the custody, even after the special verdict has been delivered, as opposed to the cases where straight acquittal is available through sane automatism[2].
Since automatism is a comprehensive defense, there are a number of exclusions to this very defense. In this, the person should not be at the fault. A classic example of this can be seen in the case of Kay v Butterworth[3], where the individual was not held criminal liable for being unconscious while driving, as a result of a sudden illness. Though, an individual could be held responsible for driving in a state where ne could fall asleep while driving. The issue relating to the prior fault applies in cases of the diabetics suffering from hypoglycemia while driving[4].
The following parts present a contrast between insane and sane automatism as this issue been subject to sustained and cogent criticism[5].
As highlighted earlier, there are two types of automatism, the sane and the insane one. Automatism is often referred as the non insane automatism, which helps in making a difference between it and the defense of insanity. The automotive state cause has to be external and so a reference to this is made in terms of external factor theory. It is crucial that these two are distinguished. In case the cause of automatic action was something external, for instance, a concussion resulting from a blow to the head, then upon applying the defense of automatism, the same can be used to lead to a verdict which states not-guilty. Though, in case the automatic behavior is from a cause of internal factors, for instance epilepsy, then it is the case of insane automatism and is covered under the insanity defense and not under automatism[6].
There are two kinds of seizures for a diabetic patient which can lead to an individual being unconscious. Hypoglycemia is the low blood sugar diabetes and is caused by taking insulin and not eating afterwards, or in case where too much insulin has been taken. Hyperglycemia is the opposite of it, and so, it is the high blood sugar and is caused by failure in taking enough or any insulin. In both the cases, it is possible that before the loss of consciousness, the diabetic individual might become hysterically violent or aggressive[7].
A diabetic who is aggressive or violent as a result of being in a hypoglycemic state would likely be able to plead automatism as a result of the insulin, since the intake of insulin is considered as an external factor. On the other hand, a diabetic person who is aggressive or violent as a result of being in the hyperglycemic state would have to go for the insanity defense as in such a case there is an absence of an external factor[8]. This can be evidenced from the case of R v Quick & Paddison and R v Hennessy.
R v Quick & Paddison[9] is a leading case in the matter of sane-automatism. In this case, the appellant had attacked the patient while he was on his duty, as a result of which the patient was injured. Upon being charged with assault, the appellant raised the defense of automatism stating that he was hypoglycemic and had taken insulin without eating anything. The trial judge held that this was a case of insanity and not automatism. The defendant changed his plea and appealed. The conviction was quashed as the appeal was allowed. The hypoglycemia was not caused by the diabetes and was an external factor based[10].
Another case in this regard is the case of R v Hennessy[11], but in this case, the appeal was dismissed as the appellant had pleaded against conviction. The defense of insanity was held to be the proper defense. This was because in the view of the Court of Appeals, the state of hyperglycemia was caused due to the diabetic disease itself and not because of any external factor of injecting the insulin, as was found in the R v Quick & Paddison case[12].
When the defense of sane automatism is pleaded in a successful manner, it acts as a complete defense and absolves the defendant from any and all criminal liability. It is different from the insane automatism defense as in that defense, the power to detain an individual in a mental hospital is absent and an order cannot be made against the defendant[13].
The sane automatism defense exists when any individual commits a crime in such situation where their actions are said to be involuntary. So, even when the defendant is not conscious due to some external factor, this defense can be used. The key difference between these is that in insane automatism, the defect of reason has to be an internal factor and for sane automatism, the defense, the action has to result due to an external factor. In R v Bingham[14], this defense was held due to external factor’s presence.
In order to apply the defense of sane automatism successfully, the requirements of this have to be fulfilled. So, there must be an existence of the involuntary action which arises due to some external source. Such an action has to be completely involuntary and the automatisms cannot be self-induced[15].
The involuntary action should not be raised due to an inside source, as in such a case, the finding would be of insane automatism. In R v Kemp[16], the hardening of the arteries was taken to be the disease of mind, which is an internal factor and so, the defense of sane automatism was not applied. In Bratty v A-G for NI[17], the defense of sane automatism was quashed as psychomotor epilepsy was an internal condition, which raised the defense of insanity and not sane automatism. Similarly in the case of R v Burgess[18], the appeal for automatism defense was dismissed. This was because the sleepwalking was caused due to a disorder or an abnormality of the brain, even though transitory in nature and hence, was an internal factor.
For the defense of sane automatism to be successful, there has to be a complete loss of control. So, if the defendant is able to retain control over some part of their actions, the defense would fail as the defendant, in such a case, would not be acting as automation. In Broome v Perkins[19], the appellant was a diabetic patient and had driven in an erratic manner when he was suffering from hypoglycemia. The defense he used of sane automatism fell short as there was evidence to show that he had exercised conscious control over his car by steering away from the other vehicles in order to avoid a crash and applied the brakes. This conscious control made the defense of sane automatism fall flat and he was convicted for driving without proper care.
The defense of insane automatism is a general defense and is available for every sort of crime. In case of this defense, the special verdict is given of not guilty by reason of insanity. This is a unique defense and has to be raised by the judge and the prosecution, additionally to the quoted defense. This defense is generally a manner of avoiding the finding of insanity and it is commonly seen that the plea is alter on changed by the defendant to guilty, so as to steer clear from a finding of insanity. The use, as well as, importance of this defense has been declined since the death penalty has been abolished and since the defense of diminished responsibility in cases of murder has been introduced[20].
The insanity is relevant at three stages, i.e., before the trial, unfitness to plead and at the time of the offence. In case an individual is in custody and clearly is insane, then the Home Secretary in such cases has the power of detaining such an individual, on immediate basis to a mental hospital. Though, in such cases, there is a requirement of confirmation regarding the state of mind of the offender from two doctors[21].
The unfitness to plead can be raised by the judge, the prosecution or the defense. The jury decides if the defendant is unfit or fit for pleading. The jury has the authority of making the finding regarding the unfitness to plead in case, based on the balance of probabilities, one of the six is beyond the capability of the appellant:
In R v Pritchard[23], the defendant was found as unfit to plead as in their opinion, he had no mode of communicating the details of the trial to the prisoner, which he could reasonably understand and which could enable him in making a proper defense to the charges made.
To answer the question of presence of insanity at the time the offence was committed, the M’Naghten rules have to be applied. These rules were given in the case of M’Naghten[24] by the House of Lords. As per these rules, it has to be shown that the defendant, at the time of the offence, was suffering from, a defect of reason, which is caused by a disease of mind, and it should be such that the defendant had no knowledge of his actions or that the act was wrong. In R v Clarke[25], it was held that the absent mindedness or forgetfulness is not sufficient for this defense.
In R v Sullivan[26], the appellant had kicked a person and at the time of attack, the appellant was suffering from epilepsy. The trial judge held that the appropriate defense in this case was not automatism but insanity and this verdict was upheld by the House of Lords. In R v Windle[27], the defendant stated upon being arrested for killing his wife that as per him, he would be possibly hanged for this. This statement denoted that the defendant knew that what he was doing was considered as unlawful and so, the defense of insanity was quashed.
Both the sane and insane automatism, have inherent problems in both theory, as well as, in practice. The cases which involve the defendants suffering from the disease of diabetes provide a leading example which is covered under these defenses. The first and foremost problem is making a distinction between sane and insane automatism, as it fails to make any sense. The dependence is on a crude differentiation, which is based on whether or not the cause of loss of control was due to internal factors or the external factors of the accused[28].
In other words, the key point to establish if there is a case of sane or insane automatism relates to the factor being internal or external, as has been thoroughly explained. However, to make this differentiation is a problem in itself. Firstly, it is quite absurd to label a diabetic person as an insane individual. Moreover, there are cases where the defendants have acted with the exact same state of mind, and yet, have obtained entirely different verdicts[29].
The present day rules which govern the insanity defense date back to 1843 and have been criticized for a varied range of reasons. It remains unclear if this defense is available in all the cases or not. As the law lags on the psychiatric understanding, in practice, the defense remains under-used and the correct legal test is not applied by the medical professionals. The label of being insane is an outdated one for describing the ones suffering with a mental illness. And is especially wrong in the matter where individuals have learning difficulties or disabilities, or the ones suffering from epilepsy. Moreover, the case laws on sane and insane automatism are incoherent and produce such results which counter the common-sense[30].
The problems associated with sand and insane automatism have been thoroughly discussed by the Law Commission of UK and through their discussion paper on Criminal Liability: Insanity and Automatism, they have suggested various reforms to deal with the identified problems. They have suggested that a new defense should be put forward regarding the individual not being criminally responsible for the reasons of a recognized medical condition. This would help in abolishing the insanity defense. And since the crime would be done due to a recognized medical condition, the individual would not be criminally held liable for their actions[31].
There is also a need for a new special verdict. The present special verdict attains the verdict of not being guilty by reason of insanity, and to this, are attached particular disposal powers. The new proposed defense would give a new special verdict, which is not being criminally responsible by reasons of a recognized medical condition and it would have special disposal powers[32].
The proposal put forward by the Law Commission should be brought into force. The foremost and the most crucial reason for this is that a sense of human dignity would be maintained as instead of giving the verdict as an insane person, the individual would be said to be suffering from a recognized disease. This would ensure that the proper respect is given to an individual, who is suffering from a disease and which led to the undertaking of the crime.
The proposed changes would transform the defense of automation. By introducing the new defense, the relationship of it with the defense of automatism would be different. Under the current law, some of the condition would lead to the defense of automatism only when they would be recognized medical conditions and so, would lead to the defense under the provisional proposals. Also, the scope of a plea made under automatism would be narrower in comparison to the provisions under the current law.
Depending upon the jurisdiction, the automatism can be a defense which is distinctive from insanity or a species of it[33]. Even though the law of the other jurisdictions like of Canada, Australia and UK are not binding in the courts of Malaysia, as they are restricted by the wordings of the Penal Code, though the developments in this regard, of the other jurisdictions do shed light over these concepts[34]. Moreover, these are of assistance in both the legislatures, as well as, the courts while incorporating the concepts into the code. A key example of this can be seen in the cases quoted earlier, which are mostly English cases.
Even though the positions are different based on the jurisdictions, but the view regarding diabetes remains largely the same due to the application of the M’Naghten rule in nearly all the jurisdictions. Moreover, the case laws used above, are established case laws and are often used in taking a decision, especially in the case of diabetes. So, the English case laws form the base for making a decision in this matter, irrespective of the jurisdiction. And it is not just the use of English case laws, but the established case laws which are used to take a decision in such matters. So, even though the codes may be varied based on the jurisdictions, but the crux of the matter in this issue remains the same, throughout.
Primary Sources
Bratty v A-G for NI [1963] AC 386 Broome v Perkins [1987] Crim LR 271
Kay v Butterworth (1945) 61 TLR 452
McClain v. State, (Ind. 1997) 678 N.E.2d 104 M’Naghten [1843] UKHL J16
R v Bingham [1991] Crim LR 43
R v Burgess [1991] 2 WLR 1206 R v Clarke [1972] 1 All ER 219
R v Hennessy [1989] 1 WLR 287
R v Kemp (1957) 1 QB 399 R v Pritchard (1836) 7 C&P 303
R v Quick & Paddison [1973] QB 910
R v Sullivan [1984] AC 156 R v Windle [1952] 2QB 826
Secondary SourcesBooks
Herring J, Criminal Law: Text, Cases, and Materials (7th edn, Oxford University Press 2014)
Martin J and Storey T, Unlocking Criminal Law (3rd edn, Routledge 2013)
Routledge Revision Lawcards, Criminal Law (6th edn, Routledge-Cavendish, 2008)
Smith JC and others, Smith and Hogan’s Criminal Law (14th edn, Oxford University Press 2015)
Online Journals
Mackay RD, ‘An anatomy of automatism’ [2015] 55 Med Sci Law <https://www.ncbi.nlm.nih.gov/pubmed/26378105> accessed 07 March 2017
Websites and blogs
E-Law Resources, ‘Defence of insanity’ (2017) <https://e-lawresources.co.uk/ Insanity.php> accessed 07 March 2017
E-Law Resources, ‘Defence of Non-Insane Automatism in Criminal Law’ (2017) <https://e-lawresources.co.uk/Non-insane-automatism.php> accessed 07 March 2017
E-Law Resources, ‘R v Hennessy [1989] 1 WLR 287 Court of Appeal’ (2017) <https://www.e-lawresources.co.uk/R-v-Hennessy.php> accessed 07 March 2017
E-Law Resources, ‘R v Quick [1973] 3 WLR 26 Court of Appeal’ (2017) <https://www.e-lawresources.co.uk/R-v-Quick.php> accessed 07 March 2017
Law Commission, ‘Criminal Liability: Insanity and Automatism- A Discussion Paper’ (23 July 2013) <https://www.lawcom.gov.uk/wp-content/uploads/2015/06/insanity_discussion.pdf> accessed 07 March 2017
Law Commission, ‘Criminal Liability: Insanity and Automatism- A Discussion Paper – Summary for non-specialists’ (23 July 2013) <https://www.lawcom.gov.uk/wp-content/uploads/2015/06/insanity_discussion_summary.pdf> accessed 07 March 2017
Law Commission, ‘Insanity and Automatism’ (2017) <https://www.lawcom.gov.uk/project/insanity-and-automatism/> accessed 07 March 2017
Yeo S, ‘Situating Automatism in the Penal Codes of Malaysia and Singapore’ (The Malaysian Bar, 22 August 2005) <https://www.malaysianbar.org.my/criminal_law/situating_automatism_in_the_penal_codes_of_malaysia_and_singapore.html> accessed 07 March 2017
Ronnie D Mackay, ‘An anatomy of automatism’ [2015] 55 Med Sci Law <https://www.ncbi.nlm.nih.gov/pubmed/26378105> accessed 07 March 2017
Law Commission, ‘Insanity and Automatism’ (2017) <https://www.lawcom.gov.uk/project/insanity-and-automatism/> accessed 07 March 2017
Law Commission, ‘Criminal Liability: Insanity and Automatism- A Discussion Paper’ (23 July 2013) <https://www.lawcom.gov.uk/wp-content/uploads/2015/06/insanity_discussion.pdf> accessed 07 March 2017
Law Commission, ‘Criminal Liability: Insanity and Automatism- A Discussion Paper – Summary for non-specialists’ (23 July 2013) <https://www.lawcom.gov.uk/wp-content/uploads/2015/06/insanity_discussion_summary.pdf> accessed 07 March 2017
McClain v. State, (Ind. 1997) 678 N.E.2d 104 at 108
Stanley Yeo, ‘Situating Automatism in the Penal Codes of Malaysia and Singapore’ (The Malaysian Bar, 22 August 2005) <https://www.malaysianbar.org.my/criminal_law/situating_automatism_in_the_penal_codes_of_malaysia_and_singapore.html> accessed 07 March 2017
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