BJPsych Advances (2015), vol. 21, 242–250 doi: 10.1192/apt.bp.113.012146 ARTICLE The common law defence of automatism: a quagmire for the psychiatrist Keith J. B. Rix Keith Rix is an Honorary Consultant evidence from at least one registered medical Forensic Psychiatrist in the Norfolk SUMMARY practitioner approved under section 12 of the and Suffolk NHS Foundation Trust This article sets out the complicated and confused and Visiting Professor of Medical Mental Health Act 1983. Jurisprudence, Institute of Medicine, law on automatism and identifies the role of the University of Chester, where he psychiatrist, including paradoxically a role in cases The law is involved with the new MSc of non-psychiatric disorder where the law requires in Medicolegal Practice. He has evidence from a doctor approved under section 12 The nature of the defence recently been elected an Honorary of the Mental Health Act. Legal definitions of The automatism defence has no statutory basis; Fellow of the Faculty of Forensic and automatism are introduced. The internal/external Legal Medicine of the Royal College no Act of Parliament defines it, sets its limits distinction, evidential burden, burden of proof, of Physicians. and governs its application. It is a common law standard of proof, prior fault, intoxication and the Correspondence Professor Keith defence, depending on judicial decisions made over J.B. Rix, The Grange, 92 Whitcliffe degree of impairment illustrate how the courts Road, Cleckheaton BD19 3DR, UK. limit the defence. Detailed accounts are given the years and in different jurisdictions. Different Email: [email protected] of cases in which the defence of automatism judges, dealing with quite dissimilar cases, have has been based on psychiatric disorder and on produced differing definitions (Box 2). There are the effects of psychotropic drugs. Suggestions are made for approaches to assessment and medicolegal reporting. BOX 1 Conditions potentially giving rise to a LEARNING OBJECTIVES defence of automatism • Understand the role of the psychiatric expert in • Diabetes: cases of suspected automatism acute neuroglycopaenia • Understand the law relating to the mental subacute neuroglycopaenia condition defence of automatism hyperglycaemia • Know how to assess and report on cases of • Sleep disorders: alleged automatism for the courts sleepwalking (somnambulism) DECLARATION OF INTEREST confusional arousal/sudden arousal disorders None sexsomnia (sexual behaviour in sleep) obstructive sleep apnoea/hypopnoea syndrome • Epilepsy A judge once referred to the law on automatism • Multiple sclerosis as a ‘quagmire’ (R v Quick [1973]). More recently, • Ophthalmic migraine Lord Justice Davis referred to one aspect as ‘illogical, little short of a disgrace and should • Cerebrovascular disease be abolished’ (Law Commission 2013: para • Cerebral tumour 1.46). However, law reform is slow. Automatism • Cerebral oedema is in a queue behind unfitness to plead. Even if • Concussion reform proposals result in a bill, there need to be • Psychiatric disorders: parliamentary will and time for it to be enacted. hysterical fugue In the meantime, psychiatrists are required even personality disorder where the condition is non-psychiatric (Box 1). This is because conditions such as diabetes and psychosis epilepsy are regarded in law as ‘internal’ causes post-traumatic stress disorder of automatism and raising the defence of ‘insane • Drug toxicity automatism’. In such cases, the court requires 242 Downloaded from https://www.cambridge.org/core. 02 Oct 2021 at 20:57:09, subject to the Cambridge Core terms of use. The common law defence of automatism with reference to differences in relation to burden BOX 2 Legal definitions of automatism and standard of proof. • Action without conscious volition (Gresson P in R v Cottle [1958]) The evidential burden, the burden of proof and the standard of proof • Action without any knowledge of acting, or acting with no consciousness of what is being done (Gresson P in Where the defence of automatism is raised, the Cottle) judge has to decide first whether it has a proper evidential foundation (‘the evidential burden’). If • An involuntary movement of the body or limbs of a person following complete destruction of voluntary not, it cannot proceed. control (Watmore v Jenkins [1962]) If there is a proper evidential foundation, the judge has to decide whether it is insane or sane • An act which is done by the muscles without any control by the mind, such as a spasm, a reflex or a automatism. If it is insane automatism, the burden convulsion; or an act done by a person who is not of proof (‘the legal burden’) rests on the defence to conscious of what he is doing (Denning LJ in Bratty v prove its case on a balance of probabilities (what A-G for Northern Ireland [1963]) is known by convention as ‘the civil standard’). If it is sane automatism, the prosecution bears the • The state of a person who, though capable of action, is not conscious of what he is doing; this means legal burden of proving all the elements in the unconscious, involuntary action, and it is a defence offence necessary to establish guilt and it has to because the mind does not go with what is done do so to ‘the criminal standard’ of proof, which (Viscount Kilmour LC in Bratty ) means ‘beyond reasonable doubt’ (Woolmington • Total alienation of reason amounting to a complete v DPP [1942]). This means that the prosecution absence of self-control (Lord Hope in R v Ross (1991)) must prove beyond reasonable doubt that there was a voluntary act that satisfied theactus reus requirement for the offence. This is a high hurdle for the prosecution. It is sufficient for the defence two particular features: the lack, or an altered to raise no more than a doubt as to the defendant’s state, of consciousness and the absence of volition. guilt for the prosecution to be unable to prove its case beyond reasonable doubt. The internal/external distinction Where there are issues of both insane and sane The internal/external distinction in automatism automatism, the judge has to distinguish them in is particularly troublesome (Table 1). Where summing up to the jury and remind them of the automatism results from an ‘external’ cause different burdens and standards of proof. It is a such as head injury, it is a ‘non-insane (sane) tall order for many jurors to make sense of this. automatism’ (hereinafter ‘sane automatism’). It is a complete defence. It results in acquittal. Where Prior fault it is an ‘internal’ cause such as epilepsy, it is an The defence may be difficult or rendered invalid ‘insane automatism’, it amounts to (legal) insanity where the accused was at fault in getting into such and disposal is under section 24 of the Domestic a condition. Violence, Crime and Victims Act 2004 (the DVCA), It was withheld from a driver who fell asleep which has amended the disposal options under the at the wheel, because he should have pulled over Criminal Procedure (Insanity and Unfitness to when he began to feel drowsy (Kay v Butterworth Plead) Act 1991 (the CP(IUP)A). (1945)), and from another who drove while Various problems result. It is quite inconsistent with medical, if not public, thinking to categorise TABLE 1 The current classification of automatisms someone with diabetes, for example, as insane. The stigma of ‘insanity’ can be a disincentive to Some accepted causes Verdict Outcome raising the defence. Outcomes can be illogical, if not nonsensical. Someone with diabetes who fails Insane Epilepsy Not guilty Disposal under automatism Hyperglycaemia by reason of the Domestic to take their insulin and, in a hyperglycaemic Cerebral tumour insanity (the Violence, Crime state, carries out what is alleged to be a criminal Multiple sclerosis ‘special verdict’) and Victims Act act is treated as insane. If they adhere to their Sleepwalking 2004 Arteriosclerosis insulin regime but fail to eat and, in a state of Hypoglycaemia hypoglycaemia, carry out the same act they Non-insane Head injury Not guilty Acquittal are acquitted. Internal and external factors (sane) Anaesthetic can operate together. The jury have not only to automatism Sneezing consider their relative contributions, but to do so Post-traumatic stress disorder BJPsych Advances (2015), vol. 21, 242–250 doi: 10.1192/apt.bp.113.012146 243 Downloaded from https://www.cambridge.org/core. 02 Oct 2021 at 20:57:09, subject to the Cambridge Core terms of use. Rix sleepwalking after drinking alcohol, because he of driving without due care and attention was had previously experienced sleepwalking episodes upheld. after drinking (Finegan v Heywood (2000)). It failed The defence also failed where, following a where a driver suffered an acute hypoglycaemic collision, the driver’s ability to circumvent a police episode: he should not have been driving because road block was regarded as evidence of responding 3 months previously he had been involved in an to his surroundings and being in full voluntary accident when hypoglycaemic (R v Marison (1997)). control (R v Isitt (1978)). Sentencing a driver with diabetes for causing This rule is applied inconsistently. In sleep- death by dangerous driving, the judge said that walking cases, the ability to start a car engine ‘monitoring of his condition and his blood sugar does not seem to raise an issue as to the extent levels in particular were to put it mildly grossly to which the mind controls the body. The defence mismanaged and grossly inadequate’ (Law was successful where a sleepwalking defendant Commission 2013: p. 236, para. B.54). started the engine to drive to the police station Even a driver who has swerved in response to a having already driven several miles, through seven wasp that has flown into their car may be at fault sets of traffic lights, to his in-laws, where he killed for not stopping to deal with the distraction.