Insanity and Automatism Handout
Insanity and Automatism Handout
HENRY MARES
KCL
In this handout, generally quotes are indented, and in smaller type, with
a border on the left. Further reading on these topics may be found in S &
S (8th ed., 2022): in section 4.3 (the introduction to the section, and then
also parts (i) and (iii)), in section 19.2 (the introduction to the section,
and then parts (i) and (ii)), and in section 18.4.
If you have any questions about the lecture material, please just ask in
the lecture, or email me ([email protected]) to set up a time to
speak.
This lecture deals with two issues (insanity and automatism) that are
related, but sometimes confusingly related, and make different claims,
and result in different outcomes. Both provide some form of denial of
responsibility for what has happened.
Part of the work is in sorting out what the issues do, and how they relate
to each other. Generally in this lecture I will use ‘automatism’ to refer to
‘non-insane automatism.’ Note also that in this module we are not
concerned with the defendant’s mental state, or ‘fitness to plead,’ at trial,
but we are concerned with their mental state, their ‘insanity,’ at the time
of the otherwise criminal events.
Note that the term ‘insanity’ is used in a technical and confined sense in
the criminal law. Please do not use it in any other more casual sense.
See, for example, the discussion of the label of ‘insanity’ in:
Sullivan [1984] 1 A.C. 156 at 173 per Lord Diplock:
My Lords, it is natural to feel reluctant to attach the label of insanity
to a sufferer from … epilepsy … even though the expression in the
context of a special verdict of “not guilty by reason of insanity” is a
technical one which includes a purely temporary and intermittent
suspension of the mental faculties of reason, memory and
understanding resulting from the occurrence of an epileptic fit. But
the label is contained in the current statute, it has appeared in this
statute’s predecessors ever since 1800. It does not lie within the
power of the courts to alter it. Only Parliament can do that. It has
done so twice; it could do so once again.
That is, ‘insanity’ has a specific meaning in criminal law, with reasonably
precise tests to determine who it is that is legally speaking insane. The
basic tests are set out in the following case of M’Naghton. If in doubt,
refer back to it; it should be what you cite in your examination if this
issue arises. The rules are also well discussed in Loake, also cited below,
albeit Loake is now outdated on one issue..
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We will go through the elements of insanity in turn as they were set out
by M’Naghton’s Case:
defect of reason,
resulting from a disease of the mind,
nature and quality of the act,
not knowing it was wrong.
In discussing these requirements we will consider cases where there was
a finding of insanity, and those where instead automatism was found, and
those where neither defence was held to be present.
DEFECT OF REASON
But if the defendant knows what they are doing, but just can’t stop
themselves from doing it, they may not be insane. This was the result in
the following case of Kopsch, and, more oddly, in Keal, below.
Kopsch (1927) 19 Cr. App. R. 50 at 51 per Hewart LCJ:
… it is said that he [the trial judge] misdirected the jury, as he omitted
to direct them that “a person charged criminally with an offence is
irresponsible for his act when it is committed under an impulse which
the prisoner is by mental disease in substance deprived of any power
to resist.”… It is the fantastic theory of uncontrollable impulse which,
if it were to become part of our criminal law, would be merely
subversive.
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For the defect of reason to count, it needs to arise from a disease of the
mind, taken to be something internal to the defendant, that is, not
something external or from intoxication itself in general. Working out
what is internal and external is a bit artificial, but in part the concern is
that something internal may happen again.
Hill v. Baxter [1958] 1 Q.B. 277 at 285-286 per Devlin J:
For the purposes of the criminal law there are two categories of
mental irresponsibility, one where the disorder is due to disease and
the other where it is not. The distinction is not an arbitrary one. If
disease is not the cause, if there is some temporary loss of
consciousness arising accidentally, it is reasonable to hope that it will
not be repeated and that it is safe to let an acquitted man go entirely
free. But if disease is present, the same thing may happen again, and
therefore, since 1800, the law has provided that persons acquitted
on this ground should be subject to restraint.
Sullivan [1984] 1 A.C. 156 at 172 per Lord Diplock (emphasis added):
… “mind” in the M’Naghten Rules is used in the ordinary sense of
the mental faculties of reason, memory and understanding. If
the effect of a disease is to impair these faculties so severely as to
have either of the consequences referred to in the latter part of the
rules, it matters not whether the aetiology of the impairment is
organic, as in epilepsy, or functional, or whether the impairment itself
is permanent or is transient and intermittent, provided that it
subsisted at the time of commission of the act.
… I do not regard that learned judge [Devlin J in Kemp] as excluding
the possibility of non-insane automatism (for which the proper verdict
would be a verdict of ‘not guilty’) in cases where temporary
impairment (not being self-induced by consuming drink or drugs)
results from some external physical factor such as a blow on the head
causing concussion or the administration of an anaesthetic for
therapeutic purposes.
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such case, is whether the function of the mind was disturbed on the
one hand by disease or on the other hand by some external factor.
… stress, anxiety and depression can no doubt be the result of the
operation of external factors, but they are not, it seems to us, in
themselves separately or together external factors… They constitute a
state of mind which is prone to recur. They lack the feature of novelty
or accident… It does not, in our judgment, come within the scope of
the exception “some external physical factor such as a blow on the
head or the administration of an anaesthetic.”
Loake [2017] EWHC 2855 (Admin) per Irwin LJ and Mr Justice Julian
Knowles:
[38] Three examples often given where it could be said that the
defendant did not know the nature and quality of his act are: (a)
where A kills B under an insane delusion that he is breaking a jar… (b)
where a madman cuts a woman’s throat under the delusion that he is
cutting a loaf of bread… (c) where a drunken nurse puts a baby on the
fire thinking it is a log…
Here there has been some confusion over the years. If this meant merely
‘legally wrong’ then it could lead to some unusual outcomes.
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clear that the appellant knew that the act was wrong in law, then he
was doing an act which he was conscious he ought not to do, and as it
was against the law, it was punishable by law; assuming, therefore,
that he knew the nature and quality of the act, he was guilty of
murder, and was properly convicted.
The difficulty no doubt arises over the words “conscious that the act
was one which he ought not to do,” but, looking at all the answers in
M’Naghten’s case, it seems that if it is punishable by law it is an act
which he ought not to do, and that is the meaning in which the phrase
is used in that case.
INSANITY AS A ‘DEFENCE’?
Loake [2017] EWHC 2855 (Admin) per Irwin LJ and Mr Justice Julian
Knowles:
[39] In virtually every case where the defendant proves that he did not
know the nature and quality of his act at the time he performed it,
then he will not be criminally responsible irrespective of the first limb
of the M’Naghten test, because he will lack the mens rea for the
alleged offence. The woman who squeezes her husband’s throat
believing she is strangling a deadly snake does not have the mens rea
for murder, because she lacks the necessary intention to kill or cause
really serious harm… To that extent, insanity as it operates in that
context adds little, in the sense that the defendant would fall to be
acquitted of murder in any event by reason of lack of mens rea
(although the effect of the special verdict might be that the disposal is
different).
[40] It is not correct, however, simply to regard insanity reductively,
as operating simply on the basis that someone who is suffering from a
disease of the mind will always lack mens rea for the offence.
[41] It is possible for someone to have the full mens rea for a criminal
offence whilst at the same time, because of a defect of reason arising
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Note that although at one time (Harper [1997] 1 W.L.R. 1406 at 1409 per
McCowan LJ) it was thought insanity did not apply to some strict liability
offences, the better view is that following Loake it probably does:
Loake [2017] EWHC 2855 (Admin) per Irwin LJ and Mr Justice Julian
Knowles:
[54] We have come to the conclusion that the quoted remarks of
McCowan LJ in … Harper… should be regarded as misleading, and
should not be followed.
This is an interesting topic, and one we will return to when we deal with
self-defence and the complex statutes now governing aspects of that
defence. For the moment, recall the final part of the quotation from
M’Naughton, and the discussion of it in Oye:
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(NON-INSANE) AUTOMATISM
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There is, as ever, some uncertainty about the level of control one may
display and still claim automatism.
Hill v. Baxter [1958] 1 Q.B. 277 at 283 per Lord Goddard CJ:
I agree that there may be cases where the circumstances are such
that the accused could not really be said to be driving at all. Suppose
he had a stroke or an epileptic fit, both instances of what may
properly be called acts of God; he might well be in the driver’s seat
even with his hands on the wheel, but in such a state of
unconsciousness that he could not be said to be driving.
CAUSES OF AUTOMATISM
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http://www.cps.gov.uk/legal/d_to_g/defences_-_sleepwalking_as_a_defence_in_sexual_offence_cases/
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