Defences: Automatism

Question 1

What is automatism?

Answer 1

Non-insane automatism aka automatism occurs where an involuntary natural reaction occurs such as sneezing or a motorist losing control when a swarm of bees flies into the car and stings them or where the defendant is not conscious of his actions and what he is doing due to an external factor like a blow to the head, effects of anesthetic or as a result of medication.

Question 2

What does a successful plea of automatism lead to?

Answer 2

An acquittal.

Question 3

How does Denning summaries automatism?

Answer 3

In Bratty 1963 he said ‘automatism means an act 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 sleepwalking.

Question 4

What must the automatism be caused by?

Answer 4

An external factor and supporting credible evidence is needed to raise the defence, Hill V Baxter 1958.

Question 5

What must a defendant show in order to successfully plead the defence?

Answer 5

To successfully plead the defence they must show that the automatism caused a total loss of control over their bodily movements. Impaired, reduced or partial control by the defence will prohibit the use of the defence.

Question 6

Who bears the evidential burden?

Answer 6

The defence bears an evidential burden in establishing the defence, they will need to produce some expert medical evidence as to his mental and physical state at the time of the offence.

Question 7

R V Isitt 1978?

Answer 7

The defendant was convicted of dangerous driving after failing to stop after a road accident. He avoided a police car and a road block. Medical evidence that he was in a dissociative state was rejected.

Question 8

Watmore V Jenkins 1962?

Answer 8

The defendant drove dangerously whilst suffering progressive hypoglycemia and gradually lost consciousness over a five mile journey crashing the car. His plea of automatism was accepted but reversed on appeal as he had driven for five miles, it was held that there was ‘not a complete destruction of voluntary control’.

Question 9

Broome V Perkins 1987?

Answer 9

The defendant was a diabetic who went into a hypoglycemic state despite eating a mars bar to counteract the effect of insulin. He was driving on a familiar road and hit another car. Afterwards he could remember nothing about the journey but seeing the damage to his car reported himself to the police. The magistrates dismissed the case based on his automatism plea but the prosecution appealed to the QBD and were successful. The court decided that as the defendant was able to exercise some voluntary control over his movements, he had not been acting in an entirely involuntary manner and therefore the defence of automatism was not available. He responded to gross stimuli and therefore had been ‘driving’ at the time of the offence.

Question 10

Attorney General’s Reference (No2 of 1992) 1993?

Answer 10

Despite criticisims that the decision in Broome V Perkins was harsh it was followed here, where it confirmed that reduced awareness cannot amount to the defence of automatism. The defendant was a lorry driver who after driving for several hours drove along the hard shoulder, killing two people. He said he was in a ‘trance like state’ brought on by driving for long distances on motorways. He was acquitted due to a successful plea of automatism, the prosecution appealed to the Court of Appeal who said that the defendant’s state did not amount to automatism, his trance like state reduced but did not eliminate awareness of what he was doing.

Question 11

R V Woolley 1997?

Answer 11

The court held that sneezing was accepted as an involuntary act and the defence of automatism was allowed. The defendant admitted driving very close to the car in front in a traffic queue. He alleged that he suddenly had a sneezing attack and lost control of his HGV. He crashed into the car ahead and this caused a domino effect involving seven other vehicles. The court decided that an attack of sneezing could be the type of involuntary act that came under the defence of automatism and she was acquitted.

Question 12

R V T 1990?

Answer 12

Sometimes the courts have been prepared to rule that a ‘dissociative state’ caused by some extraordinary event may be classed as automatism. The defendant was a young female who was charged with robbery and ABH. A week later it was discovered that she had been raped three days prior to arrest and she was diagnosed with PTSD with the consequence that she was in a dissociative state at the time of the offence. The judge felt it was appropriate to leave of automatism to the jury.

Question 13

R V Narborough 2004?

Answer 13

The value of R V T was undermined here, the defendant was convicted of wounding with intent. He claimed to be suffering from PTSD with flashbacks due to childhood sexual abuse. He claimed that during the attack he suffered a flashback and had acted ‘like a zombie’. The judge said this evidence was inadmissible. The Court of Appeal upheld his conviction because the psychiatrist had not referred to evidence that suggests that PTSD means that a defendant is no longer in control of his actions and he was unable to use the defence of automatism.

Question 14

Can automatism be self-induced?

Answer 14

No.

Question 15

Kay V Butterworth 1945?

Answer 15

The defendant felt tired driving home but continued and caused an accident, the defence of automatism was not available to him as he voluntarily continued driving.

Question 16

R V Quick 1973?

Answer 16

The defendant placed himself in a state of automatism, for example by failing to eat after taking insulin, the availability of the defence will depend on whether they knew there was a risk of getting into such a state. ‘A self-induced incapacity will not excuse…nor will one which could have been reasonable foreseen as a result of doing something or omitting to do something’.

Question 17

R V Bailey 1983?

Answer 17

The defendant, a diabetic, injured his ex-girlfriends new boyfriend during a hypoglycaemic attack with an iron bar. He had taken insulin but had not eaten enough. The trial judge said that automatism was unavailable. The Court of Appeal held that self-induced automatism can provide a defence but in this case there was insufficient evidence to raise the defence of automatism.

Question 18

R V C 2007 and R V Clarke 2009?

Answer 18

Both defendant’s were diabetics who lost control of their cars due to a hypoglycaemic episode and killed a pedestrian. They raised automatism to charges of causing death by dangerous driving. The Court of Appeal ruled that their state of automatism was self-induced and the defence was unavailable.

Question 19

What happens when the automatism is due to drink and/or drugs?

Answer 19

The defence of intoxication is applied as in R V Lipman 1970.

Question 20

Advantages of the defence of automatism?

Answer 20

• Judges have been guided by public policy approaches for the sake of public protection rather than legal principles. In Bratty, Denning set out the ‘continuing danger theory’ and this has been influential in subsequent decisions e.g. R V Sullivan 1984.

Question 21

Disadvantages of the defence of automatism?

Answer 21

• Distinguishing between internal and external causes to decide if a defendant is entitled to plead automatism or not leads to absurd and irrational differences, for example when comparing R V Quick 1983 and R V Hennessy 1989. The main reason given is that automatism caused by an internal factor is more likely to recur than a state caused by an external factor. Many medical conditions due to a combination of both.
• Even though Denning’s definition of automatism in Bratty he included sleepwalking as a possible cause of the defendant’s automatic state it was an obiter statement. The court in R V Burgess 1991 was not persuaded by the definition and would not allow a defendant who offended whilst sleepwalking to plead automatism. The Canadian courts have allowed automatism to be raised for sleepwalking defendant’s e.g. Parks 1992 and our lower courts have taken a generous approach to the issue in cases like R V Thomas 2009.

Question 22

Reform of the defence of automatism?

Answer 22

• The Law Commission Criminal Code Bill 1989 proposed to maintain the law on automatism as it stands on the grounds that the public interest if best served by acquitting anyone who acts in a state of automatism. It provided a definition of automatism and included ‘sleep’ as one of the causes of automatism. If adopted this would involve a reversal of the Court of Appeal’s decision in R V Burgess 1991.
• The Law Commission’s Scoping Paper 2012 raised several questions which may lead to future changes. It includes sleep as one of the causes of automatism.