Automatism

“Automatism” is a phrase that was introduced into the criminal law from the medical world. There, it has little meaning beyond describing the state of unconsciousness suffered by certain epileptics. Legally however it has two meanings:

Bratty [1963]

Lord Denning: “Automatism...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 sleepwalking.”

(Insanity, internal, insane automatism and qualified acquittal while Automatism, sane automatism, external and full acquittal.)

(As these defences are closely linked, many Ds seeking to rely on automatism have found themselves being inadvertently classed as insane.)

Automatism covers situations where the crime was committed because of an involuntary act caused by an external factor. It is the ‘involuntary’ aspect that negates the unlawfulness of the action (AR) as a basic requirement for criminal liability is that the AR is committed voluntarily. Therefore, Ds will have a complete defence if they can show that they were not in control of their bodily movements, rendering their conduct involuntary and thus lawful.

Woolmington [1935]

Lord Sankey: “The requirement that it should be a voluntary act is essential...in every criminal case.”

Bratty [1963]

Lord Denning: “No act is punishable if it is done involuntarily...however to prevent confusion it is to be observed that in the criminal law an act is not to be regarded as an involuntary act simply because the actor does not remember it....Nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it.”

Therefore, where the AR is performed involuntarily as a result of an external cause, the AR of an offence has been negated, meaning that no crime has in fact been committed. It follows therefore that if Ds conduct is involuntary (no AR) there will also be no MR present. D is not to blame for what has happened. Automatism is a complete and general defence to crimes, including strict liability as here it is the conduct element that is cancelled out so no regard needs to be given to the MR element. It results in an acquittal.

This defence operates in line with Woolmington [1935] as D bears the evidential burden requiring some proof, usually medical, in support of his/her plea which the prosecution must then disprove beyond reasonable doubt. The prosecution will be attempting to show that despite an external factor, D nonetheless retained some control of their actions, or disproving the external factor itself (by showing it is internally caused instead – insane automatism.)

When automatism is raised, there must be evidence, usually medical, of the external factor. This is to avoid a jury being deceived by a false claim.

Bratty [1963]

Lord Denning said that it would be insufficient for D to simply say “I had a black out” because that was “one of the first refuges of a guilty conscience and a popular excuse.” He continued... “When the cause...is concussion or sleep-walking, there should be some evidence from which it can reasonably be inferred before it should be left to the jury. If it is said to be due to concussion, there should be evidence of a severe blow shortly beforehand. If it is said to be sleep-walking, there should be some credible support for it. His mere assertion that he was asleep will not suffice.”

This defence operates within very strict rules. An extremely narrow interpretation is taken of the word ‘involuntary’ as the law requires a total loss of voluntary control. It must be such that Ds mind was not controlling his actions at the time of the offence and that the complete loss was due to an external factor. Not remembering the action is not sufficient. Not being able to control your impulse to do the action is insufficient.

Bell [1984]

Lord Goff describing involuntary conduct: “...a motorist [who] has been attacked while driving by, for example a swarm of bees or a malevolent passenger...or because his vehicle has suffered some failure, for example through a blow out or through the brakes failing.”

Other external factors could include: a blow to the head, being under the influence of an anaesthetic, a reflex action, possibly even hypnosis. However, should there be ANY CONTROL on Ds part the defence will FAIL. Even where D is in a trance like state, this will not amount to automatism if his movements appear to be purposive in any way. A TOTAL DESTRUCTION of voluntary control is required.

Isitt [1978] D was convicted of dangerous driving after he drove off following an accident, evading a police car and road block in the process. Medical evidence suggested he was in a dissociative state (hysterical fugue: a mental disorder where the person is prone to taking unexpected trips in a state of unconsciousness such that he is unable to recall where he had been, or how he ended up in a particular place.) D was convicted and the CA dismissed the appeal because D still had some control over the car in terms of direction and purpose. GUILTY – AUTOMATISM NOT AVAILABLE.

Hill v Baxter [1958] D drove through a stop sign and hit another car. He was charged with dangerous driving but acquitted by Magistrates as they accepted he remembered nothing from some distance before the stop sign. The Divisional court allowed the prosecutions appeal and remitted the case back to the Magistrates with a direction to convict as there was no evidence to support automatism. D was still driving and exercising (some) control over the car, i.e. the direction it was travelling.GUILTY – AUTOMATISM NOT AVAILABLE.

Watmore v Jenkins [1962] D was a diabetic who suffered a hypoglycaemic episode while driving. He was able to drive some 5 miles before crashing. He was charged, and acquitted of dangerous driving. On appeal however, this was reversed. There was not “such a complete destruction of voluntary control as could constitute automatism.” There had to be evidence that Ds movements were “wholly uncontrolled and uninitiated by any function of conscious will.” GUILTY – AUTOMATISM NOT AVAILABLE.

Broome v Perkins [1987] D suffered a hypoglycaemic episode due to diabetes and drove erratically home from work for some miles during which he hit another car. D could not remember the journey but after seeing damage to his car, turned himself into police. Medical evidence suggested that it was possible for someone in his state to complete a familiar journey without being conscious of doing so, and that although his awareness of what was going on around him would be imperfect, he would be able to react sufficiently to steer and operate the car, even though not very well. D raised automatism but was convicted of driving without due care and attention. He was deemed to only be intermittently an automaton as although not in full control, there was evidence his mind was still controlling his limbs enough to allow him to drive home and was therefore not acting entirely involuntarily. GUILTY – AUTOMATISM NOT AVAILABLE.

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

A long distance lorry driver had been driving for several hours when he drifted onto the hard shoulder for about ½ mile. He crashed into a car that was broken down on the hard shoulder and killed 2 people. Expert evidence showed that while he had not fallen asleep, he had been put into a trance like state by the repetitive vision of the long flat road and thus in a state of “driving without awareness” which reduced, but did not eliminate, his awareness of what he was doing. The jury acquitted D on the grounds of automatism, but the prosecution raised the case as an interpretation issue of law and thus the AG referred the case to the CA. They concluded that AUTOMATISM SHOULD NOT HAVE BEEN AVAILABLE. The condition reduced but did not eliminate his awareness or control and thus D had only actually suffered a partial loss of control. (SHOULD HAVE BEEN) GUILTY – AUTOMATISM NOT AVAILABLE.

Therefore, a D who retains some control over his actions faces conviction. This is a particularly harsh point that the Law Commission would alter in their Draft Criminal Code 1989. They describe within the definition of automatism any movement which: “is a reflex action, spasm or convulsion; or occurs while he is in a condition...depriving him of effective control.” This appears to set a slightly lower standard and would therefore operate less harshly than the present system which requires total deprivation of control. However, this is still just a reform.

Automatism may not be available if caused by Ds own fault. Where someone loses control of their actions through drinking too much, or taking illegal drugs, the defence is unavailable, for obvious policy reasons. However, where D brings about the automatism in some other way, the availability of the defence will depend on whether they knew there was a risk of getting into such a state.

C [2007]; Clarke [2009] Both Ds were diabetic and each suffered a HYPOGLYCAEMIC episode whilst driving. They each lost control of their cars and hit and killed a pedestrian. Both pleaded automatism to death by dangerous driving. In C [2007], automatism was accepted by the trial judge and left to the jury, but the acquittal was reversed by the CA as there was evidence that D was aware of his deteriorating condition before its onset. In Clarke [2009], D was convicted after the jury rejected automatism on the basis it was self induced. CA upheld conviction.

Moses LJ in C [2007]: “Automatism due to a hypoglycaemic attack will not be a defence if the attack might reasonably have been avoided. If the driver ought to have tested his blood glucose level before embarking on his journey, or appreciated the onset of symptoms during the journey, then the fact that he did suffer a hypoglycaemic attack, even if it caused a total loss of control over his limbs at the moment the car left the road, would be no defence.”

Bailey [1983]

D was a diabetic who failed to eat enough after taking insulin. He visited his ex-girlfriend and her new boyfriend but felt unwell whilst there so drank a sugar/water mixture, but did not have any food. About 10 minutes later had a HYPOGLYCAEMIC episode, during which he injured the new boyfriend by hitting him on the head with iron bar.

D claimed to have been unable to control actions but admitted he did know that failing to eat anything would put him in such a state, i.e. that he could do something (e.g. attack someone) without realising. The trial judge refused to leave automatism to the jury and D was convicted.

CA: Upheld Ds conviction as he had knowledge of what his reaction might be and thus it was self-induced. However, had D had no knowledge, he would have had a defence.

GUILTY - AUTOMATISM NOT AVAILABLE.

Although the appeal was dismissed in Bailey [1983], the CA took the opportunity to clarify the rules on self-induced automatism. They firstly pointed out that there is a difference in the way the defence applies to SPECIFIC INTENT OFFENCES and BASIC INTENT OFFENCES.

o SPECIFIC INTENT: Self-induced automatism can be a defence, as D lacks the MR (or the prosecution has real difficulty in trying to establish it beyond reasonable doutb).

o BASIC INTENT:

•  D CAN rely on self-induced automatism if s/he was unaware of the risk of bringing on the condition.
•  D CANNOT rely on self-induced automatism if s/he was aware of the risk of bringing on the condition as they will be viewed as being subjectively reckless.
•  If the self-induced automatism is caused by drink or illegal drugs, D cannot use automatism and should consider intoxication. However, the outcome might be obvious given the application of DPP v Majewski [1977] where it was decided that becoming voluntarily intoxicated is a reckless course of conduct.

R v Lipman [1970]

D and V had taken LSD. They both fell asleep but during the night, D began to hallucinate and believed he was being attacked by snakes. In the morning, he awoke to find that his girlfriend had been strangled and their bed sheets had been pushed down her throat. Although D was clearly in a state of automatism when he killed his girlfriend, he was UNABLE to rely on automatism as the condition had been self-induced by drugs.

GUILTY – AUTOMATISM NOT AVAILABLE.

HOWEVER:

Where D does NOT KNOW that his/her actions are likely to lead to a self-induced automatic state in which he may commit an offence, he has not been reckless and can use automatism. It has been self-induced, but the defence is still available as D was not reckless.

Hardie [1984]

D was depressed as his girlfriend had told him to move out. To calm him down, he took some Valium tablets (a tranquiliser). Unusually, the tablets actually made D aggressive and he ended up setting fire to a wardrobe. He did not know what he was doing because of the tablets but the trial judge directed the jury to ignore effect of tablet (and thus ignore the possibility of automatism) and D was convicted of arson.

CA: Quashed the conviction as D had taken the legal drug expecting it to calm him down, which is the normal effect of Valium. Therefore, D had NOT been reckless and automatism should have been left to the jury.

Therefore, where D takes a drug that would normally have a soporific (sleep inducing/hypnotic) or sedative (calming/soothing) effect, and then commits a crime, automatism may be available if their reaction to the drug was unexpected. Of course, if D has knowledge that the (legal) drug will produce the unusual reaction, D will be deemed to be subjectively reckless and thus automatism is unavailable.

Ryan [1967] Australian case

D shot and killed a petrol station attendant during an armed robbery. He was tying V up when he struggled and startled D. D jumped and ended up shooting V. D raised automatism claiming he involuntarily pulled trigger after being startled. Ds manslaughter conviction was upheld on appeal with Windeyer J stated that, even assuming Ds act was ‘involuntary’ in a dictionary sense, it was incapable of absolving him from criminal responsibility.

“Such phrases as ‘reflex action’ and ‘automatic reaction’ can, if used imprecisely and unscientifically, be, like ‘blackout’, mere excuses. They seem to me to have no real application to the case of a fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle levelled at another man. If he then presses the trigger in immediate response to a sudden threat or apprehension of danger, as is said to have occurred in this case, his doing so is, it seems to me, a consequence probable and foreseeable of a conscious apprehension of danger, and in that sense a voluntary act.”

Therefore, in Australia, reflex actions do not appear to be classed as automatism. However, in Bratty [1963], Lord Denning gave reflex action as one of his examples of automatism.