Involuntary conduct

Insane automatism. 'Ancient and human priniciple'- Butler Comission.

Operation of M'Naghten Rules- 'The jurors ought to be told in all cases that every man is to be presumed to be sane and to posses 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 grounds of insanity must be clearly proved that, at the time of committing 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.' Can only be fully insane, not partially. 

Burden of proof- reverse burden of proof for the defence (with prosecution needing to prove the actus reus but obviously not the mens rea). Balance of probabilities. For the prosecution the ordinary criminal standard applies. 

What if a judge raises the defence? Dickie 1984- 'we have come to the conclusion that we are unable to say there are no circumstances in which a judge may of his own violition raise an issue of insanity and leave it to a jury, provided that if he chooses to do so there is relevant evidence which goes to all the factors involved in the M'Naughten test. We envisage, however, that the circumstances in which a judge will do that will be exceptional and very rare.' 

Thomas (Sharon) 1995. 

Effect of a special verdict of 'not guilty by reason of insanity'- S5(2) of Criminal Procedure Insanity Act 1964- a hospital order- with or without a restriction direction, (Drs cannot release, SoS for Justice only) , a supervision and treatment order or an absolute discharge. More limited options if the sentence is fixed by law. s5(3) as inserted by the S24(1) of Domestic Violence, Crime and Victims Act 2004- 'the court is only obliged to make a hospital order with a restriction direction on a charge of murder if the conditions for a hospital order are met. If conditions are not met, for example if D has a physical disorder, the courts options are limited to a supervision order or an absolute discharge.'

The substantive test- a) 'the nature and quality of the act'- Sullivan 1983 and Codere 1916.

or b) 'did not know he was doing what was wrong'- Windle 1952- 'courts of law can only distinguish between that which is in accordance with the law and that which is contrary to the law, the law cannot embark on the question and it would be an unfortunate thing if it were left to juries to consider whether a particular act was morally right or wrong. The test must be whether it was contrary to the law.' Contrast with Stapleton v R 1952 (Austrialia).

R v Johnson (Dean) 2007- 'the fact, however remains that, although that has been the basis upon which the textbooks have set out the rule its proper meaning, there is some evidence which is contained in the material in articles, that courts may have on occasions been prepared to approach the issue on a more relaxed basis.' Applied Windle but thought they should review the test. 

Mackay and Kearns 1999- 'it may be argued that the psychiatrists in many respects are adopting a common sense or folk psychology approach and that the courts by accepting this interpretation are in reality, expanding the scope of the M'Naughten rules.' 

c) 'defect of reason'- Clarke 1972- 'the picture painted by her evidence was wholly consistent with this being a woman who retained her ordinary powers of reason but who was momentarily absent minded or confused and acted as she did by failing to concentrate properly on what she was doing by failing adqeuatley to use her mental powers.' 

d) 'disease of the mind' - legal v medical insanity. Section 1 of the Criminal Procedure (Insantiy and Unfitness to Plead) Act 1991 and Kemp 1957.

Bratty v AG for NI 1963- Denning- 'it seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind.'

Diplock in Sullivan 1983- '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 is organic, as in epilespy, or functional or whether the impairment itself is permenant or it transient and intermittent, provided that it is subsisted at the time of the commission of the act.' 'The purpose of the legislation relating to the defence of insanity, ever since its origin, has been to protect society agaisnt the recurrence of dangerous conduct. The duration of a temporary suspension of reason, memory and understanding cannot on any rational ground be relevant to the application by the courts of the M'Naughten Rules.' (public policy).

i) internal (disease of the mind)- Sullivan 1983 (epilepsy), Hennessy (hyperglycaemia) . Burgess 1991- Lane- 'it seems to us that if there is danger of recurrence that may be an added reason for categorising the condition as disease of the mind. On the other hand, the absense of the danger of reccurence is not a reason for saying that it cannot be a disease of the mind.' 'It seems to us that on the evidence the judge was right to conclude that this was an abnormality, or disorder, albiet tranistory, due to an internal factor, whether functional or organic, which had manifested itself in criminality.'

ii) external automatism- Lawton in Quick 1973- (hyperglycaemia)- 'the fundamental concept is a malfunctioning of the mind by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such a violence, drugs including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease.' 

Proposals for reform- Report of the Committee on Mentally Abnormal Offenders (Butler Committee) 1975- i) remove 'knowledge of wrongfulness test'- offenders should be judged on their mental capacity to reason. ii) align the test for insanity with medical definitons of the term. iii) use the phrase 'not guilty by reason of mental disorder' a) where the defendant was unable to form the requisite mens rea due to mental disorder or b) where the defendant was aware of his actions but was suffering from a severe mental disorder. 

Law Commission 2013- Criminal Liability: Insanity and Automatism- A discussion paper- not criminally responsible by reason of recognised medical condition. 1) couldnt form rational judgement. 2) wouldnt have understood it was wrong. 3) couldnt control physical actions from a recognised medical condition (narrow and wide). Wanted to change the defence so it was narrower- this wont be adopted. 

Definition- Bratty v AG for NI 1963- Kilmuir- 'An action without any knowledge of acting or action with no consciousness of doing what was being done'. This definition is unhelpful, it doesnt provide a test. 

Establishing a defence of automatism- a) it must not be prone to recur (problematic distinction with insanity) Devlin in Hill v Baxter 1958- '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.' 

b) automatism caused by an external factor- Lawton in Quick 1973- 'automatism was not caused by the diabetes but by use of insulin... such malfunctioning as there was, was cause by an external factor and not by a bodily disorder in the nature of disease.' 

Mixed internal and external causes- Hennessy 1989- 'in our judgement stress, anxiety, and depression can no doubt be the result of the operation of external factors but they are not as it seems to us, in themselves separately or together external factors of the kind capable in law of causing or contributing to a state of automatis. They constitute a state of mind which is prone to recur.'

Rabey 1980- '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.' (Canadian). See R v T 1990.

c) the need for total loss of control- Glidewell in Broome v Perkins 1986- 'when driving a motor vehicle the drivers conscious mind recieves signals from his eyes and ears, decides on the appropriate action and gives directions to his limbs to control the vehicle... on the facts the magistrates could only conclude that for parts of the journey the defendants mind was controlling his limbs and thus he was driving.' 

Attorney Generals Reference No 2 of 1992 1993- 'if automatism is said to arise from an external cause then a sucessful defendant is entitled to be acquitted. The defence of automatism requires that there was a total destruction of voluntary control on the defendants part. Impaired, reduced or partial control is not enough.The expert accepted that someone driving without awareness within his description retains some control. He would be able to steer the vehicle and usually react and return to full awareness when confronted by significant stimuli.'

Charlson 1955. 

d) automatism must not be self induced- Lawton in Quick 1973- 'a self induced incapacity will not excuse nor will one which could have been reasonably foreseen as the result of doing or omitting to do something.' Marison 1996.

Parker in Hardie 1984- 'but if the effect of a drug is merely soporific or sedative, the taking of it, even in excessive quantities, cannot in the ordinary way raise a conclusive presumption against the admission of proof of intoxication for the purpose of disproving mens rea in ordinary crimes, such as would be the case with alcoholic intoxication or incapacity or automatism resulting from the self administration of dangerous things.' 

Burden of proof- the judge has to be certain the defence has raised sufficient evidence and prosecution have to disprove defence to the criminal standard. 

'someone who is certifiably insane may often nevertheless be fit to plead to the indictment and follow the proceedings at trial, and that, if he is, he should ordinarily be allowed to do so, because it is in principle desirable that a person charged with a criminal offence should, whenever possible, be tried, so that the question whether he committed the crime may be determined by the jury'- Butler Commission 1953.

Law Commission Criminal Liability: Insanity and Automatism- 'it was notable that the responses to the Scoping Paper elecited little evidence of practical problems in relation to the operation of insanity defence... in particular many respondents told us that the more practically needed reform is to the law and procedures relating to unfitness to plead. We anticipate greater governmental support for reform where it is acknowledged that there is a practical need for it.'

Legal test for unfitness to plead- Pritchard 1836- 'there are three points to be inquired into- first whether the prisoner is mute of malice or not, secondly whether he can plead to the indictment or not, thirdly whether he is of sufficient intellect to comprehend the course of the proceedings on the trial, so as to make a proper defence, to know that he might challege any of you to whom he may object, and to comprehend the details of evidence.'

Criteria expounded in R v M 2003- i) d's ability to understand the charges. ii) ability to decide whether to plead guilty iii) ability to instruct a lawyer iv) ability to mount a challenge v) ability to understand the evidence.

Burden of proof- Padola 1959 and Criminal Procedure (Insanity) Act 1964 (substituted by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991- s4, 4(2), s4(5)- 'the trial shall not proceed or futher proceed' and s4(6)- requires evidence by two medical practicioners.

Trial on the facts- s4A(2)- the jury is to decide whether the unfit accused 'did the act or made the omission charged against him as the offence' It doesnt matter what they are charged with. 

Antoine 2000- 'the purpose of s4A is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong, and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurous act which would constitute a crime if done with the requisite mens rea'  'if there is objective evidence which raises the issue of mistake, or accident or self defence, then the jury should not find that the defendant did the act unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence.'

R v B 2012.

Possible disposals- S5(2) of Criminal Procedure (Insanity) Act 1964- i- hospital order (with or without a restriction direction), ii) a supervision and treatment order or iii) absolute discharge. 

S5(3) applies in the case of murder.

Question of reform- A6 of HRA  (3) everyone charged with a criminal offence has the following mininum rights a) to be informed promptly in a language which he understands and in detail of the nature and cause of the accusation against him. b) to have adequate time and facilities for the preparation of his defence. c) to defend himself in person or through legal assistance of his own choosing.

SC v UK 2005- 'however 'effective participation' in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed... the defendant should be able to follow what is said by prosecution witnesses and if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward to the defence.

R v Miller 2006.

The Law Commission (2010) Unfitness to plead: a discussion paper: we have given an overview of our provisional decision making capacity test. It is clear from Part 2 there are two problems in so far as the current legal test for unfitness to plead (the Pritchard test) is concerned. First it places disproportionate emphasis on cognitive ability, and does not take any or sufficient account of factors such as emotion or volition. Secondly it does not take account of the capacity of the accused to make decisions relating to his or her trial.

A person would therefore lack decision making capacity if he or she is unable to make decisions for him or herself in relation to his or her trial. In establishing whether a person is unable to make such decisions we think that S3 of the Mental Capacity Act 2005 is useful. We provisionally propose that an accused should be found to lack capcity if he or she is unable: 1) to understand the information releveant to the decisions that he/she will have to make in the course of her trial 2) to retain information 3) to use or weigh that information as part of decision making process 4) to communicate his or her decisions.