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Insanity and Automatism Handout

This lecture handout discusses the legal concepts of insanity and automatism in criminal law, emphasizing their distinct definitions and implications for responsibility. It outlines the principles of insanity as established in M’Naghten’s Case, detailing the requirements for a successful defense, including defect of reason, disease of the mind, and the defendant's understanding of their actions. The document also highlights the complexities surrounding these defenses and the potential underutilization of insanity claims in legal proceedings.

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0% found this document useful (0 votes)
16 views12 pages

Insanity and Automatism Handout

This lecture handout discusses the legal concepts of insanity and automatism in criminal law, emphasizing their distinct definitions and implications for responsibility. It outlines the principles of insanity as established in M’Naghten’s Case, detailing the requirements for a successful defense, including defect of reason, disease of the mind, and the defendant's understanding of their actions. The document also highlights the complexities surrounding these defenses and the potential underutilization of insanity claims in legal proceedings.

Uploaded by

spammail23x3
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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4FFLK903 Criminal Law

INSANITY AND AUTOMATISM


LECTURE HANDOUT, TERM 2, 2024-2025

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.

INSANITY: THE GENERAL PRINCIPLES

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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4FFLK903 Criminal Law

M’Naghton’s Case (1843) X Clark & Finnelly 200 at 210 (emphasis


added):
…the jurors ought to be told in all cases that every man is to be
presumed to be sane, and to possess a sufficient degree of reason to
be responsible for his crimes, until the contrary be proved to their
satisfaction; and that to establish a defence on the ground of insanity,
it must be clearly proved that, at the time of the committing of the act,
the party accused was 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.
The statement above is the most useful one. The judgment goes
on to consider the following additional question, to which it
provides an answer:
“If a person under an insane delusion as to existing facts, commits an
offence in consequence thereof, is he thereby excused?”
To which question the answer must of course depend on the nature of
the delusion: … we think he must be considered in the same situation
as to responsibility as if the facts with respect to which the delusion
exists were real. For example, if under the influence of his delusion he
supposes another man to be in the act of attempting to take away his
life, and he kills that man, as he supposes, in self-defence, he would
be exempt from punishment.
We will come back to this further question later.

INSANITY: THE EFFECT

The effect of the special verdict in insanity cases is set out in


Loake [2017] EWHC 2855 (Admin) per Irwin LJ and Mr Justice
Julian Knowles:
[26] Although insanity is a common law defence, there are several
statutes which have regulated what happens upon a finding of insanity
by a jury. …the Criminal Procedure (Insanity) Act 1964… makes it
incumbent upon a jury, if they find the accused to have been “insane”
and they find that he committed the acts with which he is charged, to
bring in a verdict neither of “guilty” nor of “not guilty” but a special
verdict of “not guilty by reason of insanity” (as the wording now is).
[27] Where a special verdict is returned by a jury, by Section 5 of the
1964 Act … the court has a range of orders which it can impose.
These include a hospital order (with or without a restriction order), a
supervision order, and even an absolute discharge. The range of
orders does not apply where the sentence is fixed by law (eg murder);
in such a case the court must make a hospital order with a restriction
order.
You do not need to know the detail of the orders to be made as
a result of the special verdict of ‘not guilty by reason of
insanity.’
The suspicion is that insanity may be relatively under-argued at
trial. See also Law Com DP, Criminal Liability: Insanity and
Automatism, A Discussion Paper (2013):
1.82: …insanity and automatism are rarely pleaded, …practitioners
take a pragmatic approach, and achieve the “correct” outcome, in the
view of the practitioner and/or the accused, without having to
consider the insanity defence: defendants often prefer the certainty of
a prison term to the uncertainty of a release date from hospital.

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4FFLK903 Criminal Law

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

There needs to be some fault in reasoning, that is what is required to be


‘insane’.

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.

Clarke (1972) Cr. App. R. 225 at 228 per Ackner J:


… the evidence fell very far short of showing either that she suffered
from a defect of reason or that the consequences of that defect in
reason, if any, were that she was unable to know the nature and
quality of the act she was doing. The M’Naghten Rules relate to
accused persons who by reason of a disease of the mind are deprived
of the power of reasoning. They do not apply and never have applied
to a momentary failure by someone to concentrate. The picture
painted by the evidence was wholly consistent with the appellant
being a woman who retained her ordinary powers of reason, but who
was momentarily absentminded or confused and acted as she did by
failing to concentrate properly on what she was doing and by failing
adequately to use her mental powers.

Burgess [1991] 1 Q.B. 92 at 98 per Lord Lane CJ:


The appellant plainly suffered from a defect of reason from some sort
of failure (for lack of a better term) of the mind causing him to act as
he did without conscious motivation. His mind was to some extent
controlling his actions which were purposive rather than the result
simply of muscular spasm, but without his being consciously aware of
what he was doing.

R v Keal [2022] EWCA Crim 341 per Lord Burnett CJ:


[48] …we conclude that under the M’Naghten Rules, the defence of
insanity is not available to a defendant who, although he knew what
he was doing was wrong, he believed that he had no choice but to
commit the act in question.

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4FFLK903 Criminal Law

DISEASE OF THE MIND

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.

Quick [1973] Q.B. 910 at 922 per Lawton LJ:


… the fundamental concept is of a malfunctioning of the mind caused
by disease. A malfunctioning of the mind of transitory effect caused by
the application to the body of some external factor such as violence,
drugs, including anesthetics, alcohol and hypnotic influences cannot
fairly be said to be due to disease. …In this case Quick’s alleged
mental condition, if it ever existed, was not caused by his diabetes but
by his use of the insulin…
Quick is an illustration of the somewhat strange rules around insulin.
Taking insulin and then acting without volition may be automatism (as
the insulin is an external cause). Failing to take insulin and then acting
under those effects may be insanity (as the reaction to the lack of insulin
is an internal cause), see Hennessy below.

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.

Hennessy (1989) 89 Cr. App. R. 10 at 14 per Lord Lane LCJ:


… what had to be decided was whether the defendant’s condition was
properly described as a disease of the mind. That does not mean any
disease of the brain. It means a disease which affects the proper
functioning of the mind… The question in many cases, and this is one

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4FFLK903 Criminal Law

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.”

Coley [2013] EWCA Crim 223 per Hughes LJ:


[20] It is well known that the distinction drawn in Quick between
external factors inducing a condition of the mind and internal factors
which can properly be described as a disease can give rise to
apparently strange results at the margin.

NATURE AND QUALITY OF THE ACT

Codere (1917) 12 Cr. App. R. 21 at 27 per Montagu LCJ:


The Court is of opinion that in using the language “nature and quality”
the judges were only dealing with the physical character of the act,
and were not intending to distinguish between the physical and moral
aspects of the act.

Sullivan [1984] 1 A.C. 156 at 173 per Lord Diplock:


Addressed to an audience of jurors in the 1980’s it might more aptly
be expressed as “He did not know what he was doing.”

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…

NOT KNOW HE WAS DOING WHAT WAS WRONG

Here there has been some confusion over the years. If this meant merely
‘legally wrong’ then it could lead to some unusual outcomes.

M’Naghton’s Case (1843) X Clark & Finnelly 200 at 210-211:


If the accused was conscious that the act was one which he ought not
to do, and if that act was at the same time contrary to the law of the
land, he is punishable; and the usual course therefore has been to
leave the question to the jury, whether the party accused had a
sufficient degree of reason to know that he was doing an act that was
wrong…

Codere (1917) 12 Cr. App. R. 21 at 27-28 per Montagu LCJ:


We then come to the second branch of the test, namely, … did he
know that he was doing wrong?... It is conceded now that the
standard to be applied is whether according to the ordinary standard
adopted by reasonable men the act was right or wrong. …once it is

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4FFLK903 Criminal Law

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.

Windle (1952) 36 Cr. App. R. 85 at 90 per Lord Goddard LCJ:


… there is no doubt that the word “wrong” in the M’Naghten Rules
means contrary to law and does not have some vague meaning which
may vary according to the opinion of different persons whether a
particular act might not be justified.
Affirming Windle see also Johnson [2007] EWCA Crim 1978 at [22]-[23]
per Latham LJ.

R v Keal [2022] EWCA Crim 341 per Lord Burnett CJ:


[41] In order to establish the defence of insanity within the M’Naghten
Rules on the ground of not knowing the act was “wrong”, the
defendant must establish both that (a) he did not know that his act
was unlawful (i.e. contrary to law) and (b) he did not know that his act
was “morally” wrong (also expressed as wrong “by the standards of
ordinary people”). In our judgment, “wrong” means both against the
law and wrong by the standards of ordinary reasonable people.
Strictly a jury must be satisfied that the defendant did not know that
what he was doing was against the law nor wrong by the standards of
reasonable ordinary people.
[48] …we conclude that under the M'Naghten Rules, the defence of
insanity is not available to a defendant who, although he knew what
he was doing was wrong, he believed that he had no choice but to
commit the act in question.
This last point is an echo of Kopsch, above.

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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4FFLK903 Criminal Law

from a disease of the mind, not know what he is doing is wrong. If a


man intentionally kills his wife because of his deluded belief that he is
under threat from a representative of Satan and has received a divine
order to slay, and that it is lawful to comply with divine orders, then
he possesses the mens rea for murder but is not guilty of murder
because he does not know that what he is doing is unlawful…

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.

INSANITY AND SELF-DEFENCE

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:

Oye [2013] EWCA Crim 1725 at [36]:


But in any event we think that “exempt from punishment” for these
particular purposes is to be equated with exemption from conviction.
It does not necessarily mean that an accused is also exempt from a
special verdict of “Not Guilty by reason of insanity”.

INSANITY AND INTOXICATION

Here distinguish between temporary intoxication (which is not generally


insanity) and mental illnesses caused by the use of drugs (which may
become insanity). The picture is complex and we will also come back to it
when we discuss self-defence and Taj.

Davis (1881) Cox CC 563 at 564:


… drunkenness is one thing and the diseases to which drunkenness
leads are different things; and if a man by drunkenness brings on a
state of disease which causes such a degree of madness, even for a
time, which would have relieved him from responsibility if it had been
caused in any other way, then he would not be criminally responsible.
…If you think there was a distinct disease caused by drinking, but
differing from drunkenness, and that by reason thereof he did not
know that the act was wrong, you will find a verdict of not guilty on
the ground of insanity.

Coley [2013] EWCA Crim 223 at [18] per Hughes LJ:


Every intoxicated person has his mind affected, and to an extent
disordered, by the direct and acute effects of the ingestion of
intoxicants; all intoxication operates through the brain. Not
infrequently it would be perfectly legitimate to say of a very drunken
man that his mind had become detached from reality by the

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4FFLK903 Criminal Law

intoxication; that is obviously true, for example, of the drunken man


who suffers delusions as a result of the drink…
In order to engage the law of insanity, it is not enough that there is an
effect on the mind, or, in the language of the M’Naghten rules, a
‘defect of reason’. There must also be what the law classifies as a
disease of the mind. Direct acute effects on the mind of intoxicants,
voluntarily taken, are not so classified. That is the distinction drawn
by Stephen J in Davis and maintained ever since.

(NON-INSANE) AUTOMATISM

This is sometimes dealt with under the heading of ‘voluntariness’ as in


S&S. Here the main thing is to consider when actions will be outside the
scope of insanity: not knowing the nature and quality of the act can be
insanity if the cause is internal etc, but otherwise one may need to rely on
doctrines of automatism. Automatism is a denial of the actus reus. Why?
See how Hart explains this:

H.L.A. Hart, Punishment and Responsibility (Oxford: OUP, 2nd


edition, 2008) at 105-7 (emphasis added):
… we could then characterize involuntary movements… as movements
of the body which occurred although they were not… required for any
action (in the ordinary sense of action) which the agent believed
himself to be doing. This, I think, reproduces what is in fact meant by
ordinary people when they say a man’s bodily movements are
uncontrolled… Such movements are ‘wild’ or not ‘governed by the
will’ in the sense that they are not subordinated to the agent’s
conscious plans of action: they do not occur as part of anything the
agent takes himself to be doing…
…What is missing in these cases appears to most people as a vital link
between mind and body; and both the ordinary man and the
lawyer might well insist on this by saying that in these cases
there is not ‘really’ a human action at all and certainly nothing for
which anyone should be made criminally responsible however ‘strict’
legal responsibility may be.
…What is crucial is that those whom we punish should have had, when
they acted, the normal capacities, physical and mental, for doing what
the law requires and abstaining from what it forbids, and a fair
opportunity to exercise these capacities (at 152).

THE EVIDENTIAL BURDEN IN AUTOMATISM

Bratty [1963] A.C. 386 at 413 per Lord Denning:


… whilst the ultimate burden rests on the Crown of proving every
element essential in the crime, nevertheless in order to prove that the
act was a voluntary act, the Crown is entitled to rely on
the presumption that every man has sufficient mental capacity to be
responsible for his crimes: and that if the defence wish to displace
that presumption they must give some evidence from which the
contrary may reasonably be inferred… The necessity of laying the
proper foundation is on the defence: and if it is not so laid, the
defence of automatism need not be left to the jury, any more than the
defence of drunkenness…

LEVEL OF DESTRUCTION OF CONTROL REQUIRED

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4FFLK903 Criminal Law

There is, as ever, some uncertainty about the level of control one may
display and still claim automatism.

Charlson (1955) 39 Cr. App. R. 37 at 43 per Barry J:


There the question is whether the prisoner knew what he was doing
when he struck the blows. If he struck his son with the mallet,
knowing what he was doing, and by those blows caused injuries, then
he is guilty of the third charge. If he did not know what he was doing,
if his actions were purely automatic and his mind had no control over
the movement of his limbs, if he was in the same position as a person
in an epileptic fit and no responsibility rests on him at all, then the
proper verdict is Not Guilty.

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.

Bratty [1963] A.C. 386 at 409 per Lord Denning:


No act is punishable if it is done involuntarily: and an involuntary act
in this context… means 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 sleep-walking.

Perhaps the most stringent test is that enunciated here:


Attorney-General’s Reference (No 2 of 1992) [1994] Q.B. 91 at 103 per
Lord Taylor of Gosforth CJ:
…the defence of automatism requires that there was a total
destruction of voluntary control on the defendant’s part. Impaired,
reduced or partial control is not enough.

C [2007] EWCA Crim 1862 per Moses LJ:


[24] The extent to which the defendant was impaired was vital. There
had to be evidence, fit for a jury to consider, of total lack of control. As
the defence acknowledged, the mere fact that the driver was driving
without “awareness” was not enough.

Coley [2013] EWCA Crim 223 per Hughes LJ:


[23] the doctors were asked several times whether the defendant was
acting “consciously” when he did what he did. We understand the
difficulties of selecting appropriate adverbs, but this one carries some
risk of difficulty. He was plainly not unconscious, in the sense of
comatose. But automatism does not require that, and if it did it would
be even more exceptional than it undoubtedly is. On the other hand,
his mind may well, if the doctors were right, have been affected by
delusions or hallucinations and in that sense his detachment from
reality might be described by some as an absence of conscious action.
Such condition, however, clearly falls short of involuntary, as distinct
from irrational, action.

CAUSES OF AUTOMATISM

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4FFLK903 Criminal Law

Tolson (1889) 23 Q.B.D. 168 at 187 per Stephen J:


To take an extreme illustration, can any one doubt that a man who,
though he might be perfectly sane, committed what would otherwise
be a crime in a state of somnambulism, would be entitled to be
acquitted? And why is this? Simply because he would not know what
he was doing.
On sleepwalking see Bratty [1963] A.C. 386 at 409 above; but compare
Burgess where sleepwalking was held to be insanity, and see Finegan v.
Heywood and Pooley discussed below.

Hill v. Baxter [1958] 1 Q.B. 277 at 286 per Pearson J:


Take the following cases… The man in the driving seat… is stunned by
a blow on the head from a stone which passing traffic has thrown up
from the roadway… He is attacked by a swarm of bees so that he is for
the time being disabled and prevented from exercising any directional
control over the vehicle, and any movements of his arms and legs are
solely caused by the action of the bees. In each of these cases it can
be said that at the material time he is not driving and, therefore, not
driving dangerously.

Quick [1973] Q.B. 910 at 922-923 per Lawton LJ:


In this case Quick’s alleged mental condition, if it ever existed, was
not caused by his diabetes but by his use of the insulin prescribed by
his doctor. Such malfunctioning of his mind as there was, was caused
by an external factor and not by a bodily disorder in the nature of a
disease which disturbed the working of his mind.

The internal/external division in part turns on what a usual or ‘normal’


response might be; see for example the Supreme Court of Canada’s
decision here in Rabey [1980] 2 S.C.R. 513 at 520 per Ritchie J
(adopting the words of Martin J in the Court of Appeal):
In my view, the ordinary stresses and disappointments of life which
are the common lot of mankind do not constitute an external cause
constituting an explanation for a malfunctioning of the mind which
takes it out of the category of a ‘disease of the mind.’ To hold
otherwise would deprive the concept of an external factor of any real
meaning. In my view, the emotional stress suffered by the respondent
as a result of his disappointment with respect to Miss X cannot be said
to be an external factor…
Note that Rabey is a Canadian case, but is endorsed on this point in
Burgess [1991] 1 Q.B. 92 at 98 per Lord Lane CJ:
One can perhaps narrow the field of inquiry still further by eliminating
what are sometimes called the “external factors” such as concussion
caused by a blow on the head. There were no such factors here.
Whatever the cause may have been, it was an “internal” cause. The
possible disappointment or frustration caused by unrequited love is
not to be equated with something such as concussion.

Sullivan [1984] 1 A.C. 156 at 172 per Lord Diplock:


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

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causing concussion or the administration of an anaesthetic for


therapeutic purposes.

Hennessy (1989) 89 Cr. App. R. 10 at 14 per Lord Lane LCJ:


… 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…

T [1990] Crim. L.R. 256 (Crown Ct)


Held, that there had been no previous case in which an incident of
rape had been held to be “an external factor” causing a
malfunctioning of the mind within the definition laid down in Quick;
that, if what the Defendant says about the rape is true, such an
incident could have an appalling effect on any young woman, however
well balanced normally, and that could satisfy the requirement; that a
condition of Post Traumatic Stress involving a normal person in an act
of violence is not itself a disease of the mind, even if there is a delay
before a period of dissociation manifests itself; … that the categories
of automatism are not closed and that, on the evidence before the
court, a proper foundation had been laid for the matter to go before
the jury.

Smallshire [2008] EWCA Crim 3217 per Andrew Smith J:


[8] For present purposes that state can be described as a complete
loss of voluntary control that is not caused by what the person could
reasonably foresee and is not a self-induced incapacity or one that
was a result of a disease of the mind.

FORESEEABILITY, PRIOR FAULT, INTOXICATION

Quick [1973] Q.B. 910 at 922 per Lawton LJ:


A self-induced incapacity will not excuse… nor will one which could
have been reasonably foreseen as a result of either doing, or omitting
to do something, as, for example, taking alcohol against medical
advice after using certain prescribed drugs, or failing to have regular
meals while taking insulin.

Majewski [1977] A.C. 443 at 473 per Lord Elwyn-Jones LC:


… self-induced intoxication, however gross and even if it has produced
a condition akin to automatism, cannot excuse crimes of basic intent
such as the charges of assault which have given rise to the present
appeal.

Finegan v. Heywood [2000] S.L.T. 905 at 908 (emphasis added):


[7] …when the appellant took the car and drove it while drunk, his
normal conscious mind was not controlling his actions. In that sense
his actions were “involuntary”.
[8] Counsel for the appellant argued indeed that these were the only
relevant facts since sleepwalking constituted a unique category in our
law…
[9] In the present case the sheriff found that the alcohol consumed by
the appellant induced the parasomniac state in which he took the keys
and drove the car. In addition, the sheriff found that the appellant had
been aware that at least three of his recent experiences of the
condition had been preceded by his consuming approximately the
same amount of alcohol as he consumed on the occasion in question.

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[10] In our law these factors have to be considered in the light of


the approach to intoxicants…
Note that this is a Scottish case, albeit one endorsed, in light of Pooley
below, and other cases, by the CPS.1

R.D. Mackay and M. Reuber, ‘Epilepsy and


the defence of insanity: time for change?’ [2007] Crim. L.R. 782 at 791:
In Pooley the accused was charged with sexual assault. In his ruling
on the issue of sleepwalking precipitated by alcohol consumption and
environmental change H.H. Judge Tyrer stated that “Concurrent
causes can allow for the defence of non-insane automatism to be left
to the jury even if one of the concurrent causes is self-induced
intoxication”.

C [2007] EWCA Crim 1862 per Moses LJ:


[17] An incapacity due to a hypoglycaemic attack which might
reasonably have been foreseen, as a result of doing or omitting
something will not be an excuse…

Coley [2013] EWCA Crim 223 per Hughes LJ:


[24]… the defence of automatism is not available to a defendant who
has induced an acute state of involuntary behaviour by his own fault…
the voluntary consumption of intoxicants leading to an acute condition
is the prime example of self-induced behaviour.

McKay [2015] EWCA Crim 2098 per Macur LJ:


[8] The authority of R v. Coley … makes clear that this particular
defence is not available to a defendant who has induced an acute state
of involuntary behaviour by his own actions…

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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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