Automatism

AUTOMATISM

INTRODUCTION

Automatism applies to the situation where the defendant is not legally insane but
because of some external factor he is unable to control what he is doing, or as Lord
Denning stated in Bratty v Attorney-General for N. Ireland [1963] AC 386, where
something was done by the defendant's muscles without the control of his 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.

It can then be argued that there is a lack of actus reus, as the act is not voluntary, or that
there is a lack of mens rea because the defendant is not conscious of what he is doing.

A) TOTAL LOSS OF VOLUNTARY CONTROL

The defence is not available where the defendant's mind is functioning, albeit
imperfectly. See:

Broome v Perkins [1987] Crim LR 271.

This approach was recently followed by the Court of Appeal who insisted that
automatism is only available where there is a total loss of voluntary control. See:

Attorney-General's Reference (No 2 of 1992) [1993] 3

WLR 982.

B) EXTERNAL FACTORS

This inability to control one's acts must result from the operation of some external
factor upon the working of the brain, rather than an inherent mental defect. See:

R v Quick [1973] QB 910.

According to Smith and Hogan, Criminal Law, Eighth edition 1996, p40 external
factors include concussion, the administration of an anaesthetic or other drug, or
hypnosis.

The external factor could be a traumatic event including severe shock, although it must
be something which results in more than general stress and anxiety (see Burgess
[1991], under Insanity). A good example is Post Traumatic Stress Disorder. See:

R v T [1990] Crim LR 256.

R v Antoniuk (1995)The Times 28 March

C) SELF-INDUCED AUTOMATISM

A defendant may be prevented from raising the defence of automatism, where there is
evidence to show that he was in some way at fault in bringing about the state of
automatism. The principal authority on this point is the Court of Appeal decision in:

R v Bailey [1983] 1 WLR 760.

If the defendant is charged with a specific intent crime, he will have a defence if mens
rea was not formed. If it is a basic intent crime, the defendant will have no defence if
he was reckless.

D) EVIDENTIAL BURDEN

The defendant bears an evidential burden in establishing the defence, which means that
he must produce sufficient evidence of automatism for a jury to act upon. Whether or
not he has done so is a matter of law for the trial judge, but it is apparent from the
decided cases dealing with the defence that the defendant will need to produce some
expert medical evidence as to his mental and physical state at the time of the offence.

E) EFFECT

Automatism operates as a complete defence in that if the defendant succeeds in

establishing it, he will be acquitted, and the court ceases to have any jurisdiction over
him. It is this factor which perhaps explains the reluctance of the courts to recognise
the defence of automatism in certain situations. For example, Pre-Menstrual Tension;
see:

R v Sandie Smith [1982] Crim LR 531.

Where a defence of automatism is raised, the courts will have to consider whether the
defendant should in fact be classed as criminally insane.
Law Teacher .net
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R v Sullivan [1983] 2 All ER 673

HOUSE OF LORDS
LORD DIPLOCK, LORD SCARMAN, LORD LOWRY, LORD BRIDGE OF HARWICH AND LORD
BRANDON OF OAKBROOK
20, 21 APRIL, 23 JUNE 1983

The defendant was charged with inflicting grievous bodily harm on P. At his trial he
admitted inflicting grievous bodily harm on P, who was a friend, but asserted by way
of a defence that he had done so while in the final stage of recovering from a minor
epileptic seizure. The undisputed medical evidence at the trial was that the effect on the
functioning of the brain of such a seizure was that the epileptic could have no memory,
and would not be conscious, of what he had done during the seizure. The trial judge
ruled that the defence amounted to one of insanity, rather than a defence of
automatism, and that if the jury accepted the defence they would be required to return
the special verdict of not guilty by reason of insanity provided for in s 2(1)a of the Trial
of Lunatics Act 1883, and that in consequence the judge would be required, by virtue
of s 5(1)b of the Criminal Procedure (Insanity) Act 1964, to order the defendant to be
detained in a special hospital. To avoid those consequences the defendant changed his
plea to guilty of the lesser offence of assault occasioning actual bodily harm and was
convicted of that offence. He was sentenced to probation under medical supervision.
He appealed against the conviction on the ground that the judge’s ruling was erroneous
in law and had deprived him of the opportunity of pleading the defence of automatism
to the charge of inflicting grievous bodily harm which would have been likely to result
in an acquittal. The Court of Appeal upheld the judge’s ruling and dismissed the
appeal. The defendant appealed to the House of Lords.
________________________________________
a
Section 2(1) provides: ‘Where in any indictment or information any act or omission is charged
against any person as an offence, and it is given in evidence on the trial of such person for that
offence that he was insane, so as not to be responsible, according to law, for his actions at the time
when the act was done or omission made, then, if it appears to the jury before whom such person
is tried that he did the act or made the omission charged, but was insane as aforesaid at the time
when he did or made the same, the jury shall return a special verdict that the accused is not guilty
by reason of insanity.’
b
Section 5(1), so far as material, provides: ‘Where—(a) a special verdict is returned …
the court shall make an order that the accused be admitted to such hospital as may
be specified by the Secretary of State.’
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

Held – When a defence of insanity was put forward on a criminal charge it remained
the case that the accused had clearly to prove, in accordance with the definition of
insanity in the M’Naghten Rules, that at the time of committing the criminal act he was
labouring under a ‘defect of reason’ resulting from ‘disease of the mind’, the term
‘mind’ being used in the ordinary sense of the mental faculties of reason, memory and
understanding. Thus, if the effect of a disease was to impair those faculties so severely
as to have the consequence that the accused did not know what he was doing, or, if he
did, that he did not know that it was wrong, he was ‘insane’ in the legal sense.
Accordingly, it did not matter whether the cause of the impairment was organic, as in
epilepsy, or functional, or whether the impairment itself was permanent or was
transient and intermittent, provided it subsisted at the time of commission of the act,
since the purpose of the legislation relating to the defence of insanity was to protect
society against recurrence of the dangerous state, no matter how temporary the
duration of the suspension of faculties might be. It followed therefore that, if the
occurrence of an epileptic fit brought about a temporary suspension of the mental
faculties of reason, memory and understanding during the course of which an offence
was committed, the special verdict of not guilty by reason of insanity was appropriate.
The appeal would therefore be dismissed (see p 677 h to p 678 b g to p 679 a, post).
Dictum of Devlin J in R v Kemp [1956] 3 All ER at 253 applied.
Bratty v A-G for Northern Ireland [1961] 3 All ER 523 considered.
Per curiam. A defence of non-insane automatism, for which the proper verdict would
be a verdict of not guilty, may be available in cases where temporary impairment of the
mental faculties, not being self-induced by consuming drink or drugs, results from
some external physical factor such as a blow to the head causing concusssion or the
administration of an anaesthetic for therapeutic purposes (see p 678 b c h to p 679 a,
post).
Decision of the Court of Appeal [1983] 1 All ER 577 affirmed.
LORD DIPLOCK. My Lords, the appellant, a man of blameless reputation, has the
misfortune to have been a lifelong sufferer from epilepsy. There was a period when he
was subject to major seizures known as grand mal but as a result of treatment which he
was receiving as an out-patient of the Maudsley Hospital from 1976 onwards, these
seizures had, by the use of drugs, been reduced by 1979 to seizures of less severity
known as petit mal, or psychomotor epilepsy, though they continued to occur at a
frequency of one or two per week.
One such seizure occurred on 8 May 1981, when the appellant, then aged 51, was
visiting a neighbour, Mrs Killick, an old lady aged 86 for whom he was accustomed to
perform regular acts of kindness. He was chatting there to a fellow visitor and friend of
his, a Mr Payne aged 80, when the epileptic fit came on. It appears likely from the
expert medical evidence about the way in which epileptics behave at the various stages
of a petit mal seizure that Mr Payne got up from the chair to help the appellant. The
only evidence of an eye-witness was that of Mrs Killick, who did not see what had
happened before she saw Mr Payne lying on the floor and the appellant kicking him
about the head and body, in consequence of which Mr Payne suffered injuries severe
enough to require hospital treatment.
As a result of this occurrence the appellant was indicted on two counts: the first was
of causing grievous bodily harm with intent, contrary to s 18 of the Offences against
the Person Act 1861; the second was of causing grievous bodily harm, contrary to s 20
of the Act. At his trial, which took place at the Central Criminal Court before his
Honour Judge Lymbery QC and a jury, the appellant pleaded not guilty to both counts.
Mrs Killick’s evidence that he had kicked Mr Payne violently about the head and body
was undisputed and the appellant himself gave evidence of his history of epilepsy and
his absence of all recollection of what had occurred at Mrs Killick’s flat between the
time that he was chatting peacefully to Mr Payne there and his returning to the flat
from somewhere else to find that Mr Payne was injured and that an ambulance had
been sent for. The prosecution accepted his evidence as true. There was no cross-
examination.
Counsel for the appellant wanted to rely on the defence of automatism or, as
Viscount Kilmuir LC had put in Bratty v A-G for Northern Ireland [1961] 3 All ER
523 at 530, [1963] AC 386 at 405, ‘non-insane’ automatism, that is to say that he had
acted unconsciously and involuntarily in kicking Mr Payne, but that when doing so he
was not ‘insane’ in the sense in which that expression is used as a term of art in English
law, and in particular in s 2 of the Trial of Lunatics Act 1883, as amended by s 5 of the
Criminal Procedure (Insanity) Act 1964. As was decided unanimously by this House in
Bratty’s case, before a defence of non-insane automatism may properly be left to the
jury some evidential foundation for it must first be laid. The evidential foundation that
counsel laid before the jury in the instant case consisted of the testimony of two
distinguished specialists from the neuropsychiatry epilepsy unit at the Maudsley
Hospital, Dr Fenwick and Dr Taylor, as to the pathology of the various stages of a
seizure due to psychomotor epilepsy. Their expert evidence, which was not disputed by
the prosecution, was that the appellant’s acts in kicking Mr Payne had all the
characteristics of epileptic automatism at the third or post-ictal stage of petit mal, and
that, in view of his history of psychomotor epilepsy and the hospital records of his
behaviour during previous seizures, the strong probability was that the appellant’s acts
of violence towards Mr Payne took place while he was going through that stage.
The evidence as to the pathology of a seizure due to psychomotor epilepsy can be
sufficiently stated for the purposes of this appeal by saying that after the first stage, the
prodram, which precedes the fit itself, there is a second stage, the ictus, lasting a few
seconds, during which there are electrical discharges into the temporal lobes of the
brain of the sufferer. The effect of these discharges cause him in the post-ictal stage to
make movements which he is not conscious that he is making, including, and this was
a characteristic of previous seizures which the appellant had suffered, automatic
movements of resistence to anyone trying to come to his aid. These movements of
resistence might, though in practice they very rarely would, involve violence.
At the conclusion of the evidence, the judge, in the absence of the jury, was asked to
rule whether the jury should be directed that if they accepted this evidence it would not
be open to them to bring in a verdict of not guilty, but they would be bound in law to
return a special verdict of not guilty by reason of insanity. The judge ruled that the jury
should be so directed.
After this ruling, the appellant, on the advice of his counsel and with the consent of
the prosecution and the judge, changed his plea to guilty of assault occasioning actual
bodily harm. The jury, on the direction of the judge, brought in a verdict of guilty of
that offence, for which the judge sentenced him to three years’ probation subject to the
condition that during that period he submitted to treatment under the direction of Dr
Fenwick at the Maudsley Hospital.
My Lords, neither the legality nor the propriety of the procedure adopted after the
judge’s ruling has been canvassed in this House, nor was it canvassed in the Court of
Appeal to which an appeal was brought on the ground that the judge ought to have left
to the jury the defence of non-insane automatism which, if accepted by them, would
have entitled the appellant to a verdict of not guilty. In these circumstances the present
case does not appear to be one in which it would be appropriate for this House to enter
into a consideration of the procedure followed in the Central Criminal Court after the
judge’s ruling, more particularly as it raises some questions that will shortly come
before your Lordships for argument in another appeal.
 The Court of Appeal held that Judge Lymbery’s ruling had been correct (see [1983] 1
All ER 577, [1983] 2 WLR 392). It dismissed the appeal and certified that a point of
law of general public importance was involved in the decision, namely:

‘Whether a person who is proved to have occasioned, contrary to section 47 of

the Offences against the Person Act 1861, actual bodily harm to another, whilst
recovering from a seizure due to psychomotor epilepsy and who did not know
what he was doing when he caused such harm and has no memory of what he
did should be found not guilty by reason of insanity.’
My Lords, for centuries, up to 1843, the common law relating to the concept of
mental disorders as negativing responsibility for crimes was in the course of evolution,
but I do not think it necessary for your Lordships to embark on an examination of the
pre-1843 position. In that year, following the acquittal of one Daniel M’Naghten for
shooting Sir Robert Peel’s secretary, in what today would probably be termed a state of
paranoia, the question of insanity and criminal responsibility was the subject of debate
in the legislative chamber of the House of Lords, the relevant statute then in force
being the Criminal Lunatics Act 1800, an Act ‘for the safe custody of Insane Persons
charged with Offences’, which referred to persons who were ‘insane’ at the time of the
commission of the offence, but contained no definition of insanity. The House invited
the judges of the courts of common law to answer five abstract questions on the subject
of insanity as a defence to criminal charges. The answer to the second and third of
these questions combined was given by Tindal CJ on behalf of all the judges, except
Maule J, and constituted what became known as the M’Naghten Rules. The judge’s
answer is in the following well-known terms (see M’Naghten’s Case (1843) 10 Cl &
Fin 200 at 210,[1843–60] All ER Rep 229 at 233):

‘… 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 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.’
Although the questions put to the judges by the House of Lords referred to insane
delusions of various kinds, the answer to the second and third questions (the
M’Naghten Rules) is perfectly general in its terms. It is stated to be applicable ‘in all
cases’ in which it is sought ‘to establish a defence on the ground of insanity’. This
answer was intended to provide a comprehensive definition of the various matters
which had to be proved (on balance of probabilities, as it has since been held) in order
to establish that the accused was insane within the meaning of the 1800 Act, which,
like its successors of 1883 and 1964, make it incumbent on a jury, if they find the
accused to have been ‘insane’ at the time 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 the
terms of which have been varied under three successive statutes, but are currently not
guilty by reason of insanity.
The M’Naghten Rules have been used as a comprehensive definition for this purpose
by the courts for the last 140 years. Most importantly, they were so used by this House
in Bratty’s case. That case was in some respects the converse of the instant case. Bratty
was charged with murdering a girl by strangulation. He claimed to have been
unconscious of what he was doing at the time he strangled the girl and he sought to run
as alternative defences non-insane automatism and insanity. The only evidential
foundation that he laid for either of these pleas was medical evidence that he might
have been suffering from psychomotor epilepsy which, if he were, would account for
his having been unconscious of what he was doing. No other pathological explanation
of his actions having been carried out in a state of automatism was supported by
evidence. The trial judge first put the defence of insanity to the jury. The jury rejected
it; they declined to bring in the special verdict. Thereupon, the judge refused to put the
alternative defence of automatism. His refusal was upheld by the Court of Criminal
Appeal of Northern Ireland and subsequently by this House.
The question before this House was whether, the jury having rejected the plea of
insanity, there was any evidence of non-insane automatism fit to be left to the jury. The
ratio decidendi of its dismissal of the appeal was that the jury having negatived the
explanation that Bratty might have been acting unconsciously in the course of an attack
of psychomotor epilepsy, there was no evidential foundation for the suggestion that he
was acting unconsciously from any other cause.
In the instant case, as in Bratty’s case, the only evidential foundation that was laid for
any finding by the jury that the appellant was acting unconsciously and involuntarily
when he was kicking Mr Payne was that when he did so he was in the post-ictal stage
of a seizure of psychomotor epilepsy. The evidential foundation in the case of Bratty,
that he was suffering from psychomotor epilepsy at the time he did the act with which
he was charged, was very weak and was rejected by the jury; the evidence in the
appellant’s case, that he was so suffering when he was kicking Mr Payne, was very
strong and would almost inevitably be accepted by a properly directed jury. It would be
the duty of the judge to direct the jury that if they did accept that evidence the law
required them to bring in a special verdict and none other. The governing statutory
provision is to be found in s 2 of the Trial of Lunatics Act 1883. This says ‘the jury
shall return a special verdict’.
My Lords, I can deal briefly with the various grounds on which it has been submitted
that the instant case can be distinguished from what constituted the ratio decidendi in
Bratty’s case, and that it falls outside the ambit of the M’Naghten Rules.
First, it is submitted the medical evidence in the instant case shows that psychomotor
epilepsy is not a disease of the mind, whereas in Bratty’s case it was accepted by all the
doctors that it was. The only evidential basis for this submission is that Dr Fenwick
said that in medical terms to constitute a ‘disease of the mind’ or ‘mental illness’,
which he appeared to regard as interchangeable descriptions, a disorder of brain
functions (which undoubtedly occurs during a seizure in psychomotor epilepsy) must
be prolonged for a period of time usually more than a day, while Dr Taylor would have
it that the disorder must continue for a minimum of a month to qualify for the
description ‘a disease of the mind’.
The nomenclature adopted by the medical profession may change from time to time;
Bratty was tried in 1961. But the meaning of the expression ‘disease of the mind’ as
the cause of ‘a defect of reason’ remains unchanged for the purposes of the application
of the M’Naghten Rules. I agree with what was said by Devlin J in R v Kemp [1956] 3
All ER 249 at 253, [1957] 1 QB 399 at 407 that ‘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. The purpose of the legislation relating
to the defence of insanity, ever since its origin in 1880, has been to protect society
against recurrence of the dangerous conduct. The duration of a temporary suspension
of the mental faculties of reason, memory and understanding, particularly if, as in the
appellant’s case, it is recurrent, cannot on any rational ground be relevant to the
application by the courts of the M’Naghten Rules, though it may be relevant to the
course adopted by the Secretary of State, to whom the responsibility for how the
defendant is to be dealt with passes after the return of the special verdict of not guilty
by reason of insanity.
To avoid misunderstanding I ought perhaps to add that in expressing my agreement
with what was said by Devlin J in R v Kemp, where the disease that caused the
temporary and intermittent impairment of the mental faculties was arteriosclerosis, I do
not regard that judge 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. I mention this because in R v
Quick [1973] 3 All ER 347, [1973] QB 910 Lawton LJ appears to have regarded the
ruling in R v Kemp as going as far as this. If it had done, it would have been
inconsistent with the speeches in this House in Bratty’s case, where R v Kemp was
alluded to without disapproval by Viscount Kilmuir LC and received the express
approval of Lord Denning. The instant case, however, does not in my view afford an
appropriate occasion for exploring possible causes of non-insane automatism.
The only other submission in support of the appellant’s appeal which I think it
necessary to mention is that, because the expert evidence was to the effect that the
appellant’s acts in kicking Mr Payne were unconscious and thus ‘involuntary’ in the
legal sense of that term, his state of mind was not one dealt with by the M’Naghten
Rules at all, since it was not covered by the phrase ‘as not to know the nature and
quality of the act he was doing’. Quite apart from being contrary to all three speeches
in this House in Bratty’s case, the submission appears to me, with all respect to
counsel, to be quite unarguable. Dr Fenwick himself accepted it as an accurate
description of the appellant’s mental state in the post-ictal stage of a seizure. The
audience to whom the phrase in the M’Naghten Rules was addressed consisted of peers
of the realm in the 1840s when a certain orotundity of diction had not yet fallen out of
fashion. Addressed to an audience of jurors in the 1980s it might more aptly be
expressed as: he did not know what he was doing.
My Lords, it is natural to feel reluctant to attach the label of insanity to a sufferer
from psychomotor epilepsy of the kind to which the appellant was subject, 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.
Sympathise though I do with the appellant, I see no other course open to your
Lordships than to dismiss this appeal.

LORD SCARMAN. My Lords, I agree with the speech delivered by my noble and
learned friend Lord Diplock. I would dismiss the appeal.

LORD LOWRY. My Lords, I have had the advantage of reading in draft the speech
prepared by my noble and learned friend Lord Diplock. I agree with his conclusions
and, for the reasons which he gives, I would dismiss the appeal.

LORD BRIDGE OF HARWICH. My Lords, for the reasons given in the speech of
my noble and learned friend Lord Diplock, with which I fully agree, I too would
dismiss this appeal.

LORD BRANDON OF OAKBROOK. My Lords, I have had the advantage of

reading in draft the speech prepared by my noble and learned friend Lord Diplock. I
agree with it, and for the reasons which he gives I would dismiss the appeal.

Order appealed from affirmed. Certified question answered in the affirmative. Appeal
dismissed.

Solicitors: Armstrong & Co, Forest Hill (for the appellant); D M O’Shea (for the
Crown).

Mary Rose Plummer Barrister