In
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
, automatism is a rarely used
criminal defence
In the field of criminal law, there are a variety of conditions that will tend to negate elements of a crime (particularly the ''intent'' element), known as defenses. The label may be apt in jurisdictions where the ''accused'' may be assigned some ...
. It is one of the
mental condition defences that relate to the
mental state
A mental state, or a mental property, is a state of mind of a person. Mental states comprise a diverse class, including perception, pain experience, belief, desire, intention, emotion, and memory. There is controversy concerning the exact definiti ...
of the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
. Automatism can be seen variously as lack of voluntariness, lack of
culpability
In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily has ...
(unconsciousness) or excuse. Automatism means that the defendant was not aware of his or her actions when making the particular movements that constituted the
illegal act
Illegal, or unlawful, typically describes something that is explicitly prohibited by law, or is otherwise forbidden by a state or other governing body.
Illegal may also refer to:
Law
* Violation of law
* Crime, the practice of breaking the c ...
.
For example, Esther Griggs in 1858 threw her child out of a first floor window believing that the house was on fire, while having a
sleep terror
Night terror, also called sleep terror, is a sleep disorder
A sleep disorder, or somnipathy, is a medical disorder of an individual's sleep patterns. Some sleep disorders are severe enough to interfere with normal physical, mental, social a ...
. In 2002,
Peter Buck
Peter Lawrence Buck (born December 6, 1956) is an American musician and songwriter. He was a co-founder and the lead guitarist of the alternative rock band R.E.M. He also plays the banjo and mandolin on several R.E.M. songs. Throughout his car ...
, lead guitarist of the band R.E.M., was
cleared of several charges, including assault, which resulted from automatism brought on by a bad interaction between alcohol and sleeping pills. In a 2009 case in
Aberporth
Aberporth is a seaside village, community and electoral ward in Ceredigion, Wales. The population at the 2001 Census, was 2,485, of whom 49 per cent could speak the Welsh language. At the 2011 Census, the population of the community was 2,374 a ...
in west Wales, Brian Thomas strangled his wife in their camper van, also during a sleep terror, when he mistook his wife for an intruder. The defence of automatism is denying that the person was acting in the sense that the criminal law demands. As such it is really a denial-of-proof – the defendant is asserting that the offence is not made out. The
prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...
does not have to disprove the defence as is sometimes erroneously reported; the prosecution has to prove all the elements of the offence including the voluntary act requirement. Automatism is a defence even against
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
...
crimes like
dangerous driving
In United Kingdom law, dangerous driving is a statutory offence. It is also a term of art used in the definition of the offence of causing death by dangerous driving. It replaces the former offence of reckless driving. Canada's Criminal Code ha ...
, where no
intent
Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...
is necessary.
There are several limitations to the defence of automatism in
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
. Prior fault generally excludes automatism. Intoxication generally excludes automatism, even when involuntary. Any defence that rests on insanity comes under the
M'Naghten rules. Under English law internal causes of automatism are generally judged to be insane automatism and so result in the special verdict (not guilty by reason of insanity) rather than simple acquittal.
Scope
Automatism is arguably the only defence that excludes responsibility by negating the existence of the ''
actus reus
(), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in th ...
'' which uniquely allows it to be a defence to both conventional and strict liability offences (although this argument could be extended to the status defence of insanity, too). Strict automatism is a denial of ''actus reus'' and therefore most commonly used as a defence against strict liability offences. There are a number of reasons why a person may go into a state of automatism, including dissociation or hypo or hyperglycemia. Unconsciousness is the defence of denial of ''mens rea'', which is easier to prove and hence more commonly used for non-strict liability crimes. For example, in cases of
homicidal sleepwalking
Sleepwalking, also known as somnambulism or noctambulism, is a phenomenon of combined sleep and wakefulness. It is classified as a sleep disorder belonging to the parasomnia family. It occurs during slow wave stage of sleep, in a state of low ...
the illegal act is typically not denied but the intent to kill is. The defendant will typically be perplexed and confused and will not cover up the episode. Kenneth Parks, after killing his mother-in-law and severely injuring his father-in-law, drove to the police station stating that he thought he had killed some people. The person's movements seem purposeful - the sleepwalker interacts with their environment in a limited way. Nonetheless the sleepwalker is not conscious of their actions. The use of the term "automatism" for these situations causes some confusion, as in these cases it is really the lack of intent on the part of the defendant which denies the ''mens rea'' of the offence rather than the ''actus reus'' (although this distinction is problematic in many instances), better called "unconsciousness". Intention is a problem in crimes of strict liability. Very few people intend to crash their vehicles, so clearly something better than intent is required to define automatism.
Another issue with automatism is that when the issue is raised by the defence as a realistic defence (an evidentiary basis), the prosecution then has to prove beyond reasonable doubt that the defendant was acting voluntarily. This is the case for several other defences e.g. duress. The justification for this is that voluntary action is part of the definition of the offence, and therefore something under the presumption of innocence the prosecution has to prove. The evidentiary burden was laid down in ''
Hill v Baxter
The case of ''Hill v Baxter'' concerns the issue of automatism in driving in England and Wales without a diagnosed condition. It sets out guidelines as to when the defence will apply, and when it will not and what jury instructions ("directions ...
'' where the defence of automatism failed because there was no good evidence for the alleged
blackout. Evidentiary burden means that the defendant needs to provide evidence to satisfy the judge that the issue should be put to the jury, which normally requires medical evidence (although ''R v Woolley'', in which an HGV driver crashed after sneezing, proved an exception).
Exclusions
Because automatism is such a comprehensive defence, there are various exclusions to an automatism defence. The person must not be at fault. The classic example of this is falling asleep at the wheel of a car (''Kay v Butterworth''). Although one is not responsible for acts done while asleep, one can be held responsible for driving in a state where one would fall asleep at the wheel. The issue of prior fault applies to many diabetics who suffer hypoglycaemia while driving. Voluntary (and often involuntary) intoxication cannot cause legal automatism.
In many jurisdictions, there is a distinction made between "sane automatism" and "insane automatism". Where the involuntariness is caused by a mental illness, or "disease of the mind", as per the
M'Naghten rules, it will be regarded as "insane automatism" and will often result in a special verdict of "not guilty by reason of insanity". This can have significant practical effects for the defendant, as they still may be detained after a special verdict as opposed to the straight acquittal available through sane automatism.
The M'Naghten rules require a "disease of mind", which requires an internal cause. This is medically nonsensical, and does not always bear much relationship to continuing risk which is the main justification. This means that insane automatisms do not require total loss of voluntary control (see below). Thus they are easier to prove in some circumstances, but conversely the burden of proof is on the defendant. Sleepwalking was initially an exception to the internal-external doctrine until the case of ''
R v Burgess
R v Burgess 9912 QB 92 was an appeal in the Court of Appeal of England and Wales that adjudged sleepwalking entailing violence from an internal, organic cause amounts to insane automatism. At first instance he was likewise found not guilty ''b ...
''.
['']R v Burgess
R v Burgess 9912 QB 92 was an appeal in the Court of Appeal of England and Wales that adjudged sleepwalking entailing violence from an internal, organic cause amounts to insane automatism. At first instance he was likewise found not guilty ''b ...
'' 991
Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar.
Events
* March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between ...
2 QB 92; 991
Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar.
Events
* March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between ...
2 WLR 1206
The most contentious qualifier is that there must be a total loss of control. In ''Attorney-General's Reference No 2 of 1992'', this definition of legal automatism was confirmed. A lorry driver had crashed, and his defence (backed up by expert evidence) was that the monotony of motorway driving had caused him to go into a state of "driving without awareness" where, although he could make minor adjustments to follow the road, he was not truly conscious of driving. This followed the decisions of ''Watmore v Jenkins'' and ''Broome v Perkins'' where diabetic drivers who had driven three miles or more were held to not have the total loss of control necessary for the defence of automatism. This definition is problematic, and the Law Commission, Butler Committee and leading legal academic R. D. Mackay have all argued that this definition is too restrictive.
Classically automatisms in the legal sense have been defined as spasms, reflexes, convulsions or acts committed in a state of unconsciousness e.g. sleep. However, there have been cases where the automatism defence was successful when none of these apply. In ''R v T'' the defendant had been raped a few days prior to committing a robbery. She was clearly conscious of what she was doing, but in a dissociative state due to post-traumatic stress disorder from being raped. However, in ''R v Isitt'', when the defendant drove away from a collision and evaded a police roadblock in a dissociative state, the defence was not successful. The Ontario Court of Appeal expressed a logical way of distinguishing such cases in ''Rabey v The Queen''. There, the defendant went into a dissociative state due to being spurned. It was held that such a commonplace occurrence was not the sort of external stimulus that would cause legal automatism (although the insanity plea would be open to him).
Omissions
The problem with omissions and automatism is that the strict legal definition requires total loss of control. A person may well not be able to avoid a crash even though they have some residual control. In this case, the law is imposing liability for failing to do the impossible. Several commentators, including H. L. A. Hart, have suggested that responsibility for omissions must be framed with reference to the actor's capabilities at the time, rather than the objective test.
Voluntariness
La Forest J. in the Canadian Supreme Court case of
''R v Parks'',
[ ''R v Parks'' (1992) 75 CCC (3d) 287 at 302.] asserted that automatism is "conceptually a subset of the voluntariness requirement". One of the main rationales of criminal law is to use the threat of
punishment
Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular acti ...
as a
deterrent to future wrongdoing. But, if an individual is to be deterred, he or she must be acting under voluntary control. If something is interfering with this control, automatism may be available as an excuse. Duress is not an example of involuntary action as although the choices faced by the person under duress may be difficult, nonetheless they are still acting voluntarily. Some would describe action under duress as non-voluntary as opposed to involuntary. This distinction is emphasized by the exclusion of the defense of duress for murder. In the words of the Queensland Court of Criminal Appeal in ''R v Milloy'',
[''R v Milloy'' (1991) 54 A Crim R 340 at 342–343.] Thomas J
Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 19 ...
says, that for automatism to succeed:
Reflex movements
One of the difficulties is defining what a voluntary action is and is not. Words like "willed" have the same difficulty: a voluntary action is one that is willed, whatever that means. In Australia, ''Ryan v The Queen'',
[.] the defendant entered a shop with a loaded rifle for a robbery. In a sudden attack, the shop assistant caught the appellant by surprise, causing him by a reflex action to discharge the gun, killing the assistant instantly. The Crimes Act 1900 (NSW) requires that "
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
shall be committed where the ''act'' of the accused ... causing the death charged".
Barwick CJ said:
"That a crime cannot be committed except by an act or omission is axiomatic. It is basic, in my opinion, that the 'act' of an accused ... must be a 'willed', a voluntary act which has caused the death charged. It is the act which must be willed, though its consequences may not be intended."
Concerning whether the firing of the gun was willed so as to constitute an "act" for the purposes of the murder charge, Elliot commented that "his reaction was like the sudden movement of a tennis player retrieving a difficult shot; not accompanied by conscious planning, but certainly not involuntary". Despite accepting that the actual discharge was involuntary, Barwick CJ confirmed the murder conviction because "the act causing death" included the general circumstances in which the gun was fired. The
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
and
jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...
In the U.S., in ''People v. Decina'' (1956) 2 NY2d 13 3, 143 the defendant had
epilepsy
Epilepsy is a group of non-communicable neurological disorders characterized by recurrent epileptic seizures. Epileptic seizures can vary from brief and nearly undetectable periods to long periods of vigorous shaking due to abnormal electrical ...
. While driving his car, he had an epileptic seizure and the car went out of control, killing four people. Decina was convicted of negligent homicide because he had voluntarily driven an automobile without assistance knowing that a seizure was possible, breaching Penal Law 1053 on the negligent operation of a motor vehicle:
This reasoning matches that in English law where any foreseeable loss of control is excluded from automatism. To hold otherwise would be to excuse any driver or other person engaged in an activity where public safety is an issue, from the consequences of a loss of control that occurred after losing consciousness. Only sudden and unexpected health problems avoid
culpability
In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily has ...
. In
Scots law
Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland l ...
, ''Cardle v Mulrainey'' (1992) SCCR 658 applies the general requirement for cases involving a defence based on
insanity
Insanity, madness, lunacy, and craziness are behaviors performed by certain abnormal mental or behavioral patterns. Insanity can be manifest as violations of societal norms, including a person or persons becoming a danger to themselves or to ...
or a comparable state, that there must be a total alienation of reason leading to a loss of self-control, to a case in which the accused claimed that he had involuntarily consumed a drug which had the effect that he knew what he was doing but was unable to refrain from acting (at 668):
Sleep
The Australian Model Criminal Code Committee states the law as follows (at 14–15):
In the U.S., ''
People v Huey Newton'' (1970) 8 CA3d 359 holds that unconsciousness, when not self-induced (say, as by voluntary intoxication), is a complete defence to a criminal act even though the defendant's acts seem very goal-oriented. The medical evidence was that "
gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different from a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so." But the reflexive activity or unconsciousness need not cause physical collapse: it can exist where the subject physically acts in fact, but is not at the time conscious of acting (cf some European continental jurisdictions classify conduct resulting from automatism under the rubric of unconsciousness). In ''R. v. Cogdon'' (1950), unreported but noted in Morris, ''Somnambulistic Homicide: Ghosts, Spiders and North Koreans'' (1951) 5 ''Res Judicatae'' 29, the defendant struck her daughter on the head with an axe while sleepwalking and dreaming about North Koreans. Her movements were not voluntary, so she was acquitted. This interpretation of automatism is consistent with Lord Denning's ''dicta'' in ''Bratty v Attorney-General for Northern Ireland'' (1963) AC 386, at 409:
Situations involving
hypnotism
Hypnosis is a human condition involving focused attention (the selective attention/selective inattention hypothesis, SASI), reduced peripheral awareness, and an enhanced capacity to respond to suggestion.In 2015, the American Psychologica ...
,
concussion
A concussion, also known as a mild traumatic brain injury (mTBI), is a head injury that temporarily affects brain functioning. Symptoms may include loss of consciousness (LOC); memory loss; headaches; difficulty with thinking, concentration, ...
, and
sleepwalking
Sleepwalking, also known as somnambulism or noctambulism, is a phenomenon of combined sleep and wakefulness. It is classified as a sleep disorder belonging to the parasomnia family. It occurs during slow wave stage of sleep, in a state of low ...
may involve apparently deliberate and purposeful conduct. In fact this is the case for many situation where the defense of automatism is presented – spasms or reflex actions are rarely likely to be perceived as criminally liable acts. As for sleepwalking itself, the Canadian case of ''R v Parks'' exemplifies a certain judicial willingness to regard a sleepwalker as behaving as an automaton even though he had performed apparently goal-directed acts. The accused fell asleep in his living room. A few hours later he got up and drove 23 kilometres to his in-laws' home. Still asleep, he entered the house, found a knife in the kitchen and went to the bedroom where his in-laws were sleeping. He strangled and cut his father in-law, who survived the attack. The mother in-law died from the repeated stab wounds and the brutal beating. The medical experts at trial unanimously agreed that the accused was sleepwalking and that sleepwalking was not a "disease of mind". The Supreme Court agreed and held that sleepwalking can negate the voluntary ingredient of the ''actus reus''.
There is widespread disagreement among forensic sleep experts that Kenneth Parks was in fact sleepwalking – it is not entirely clear the reason why the prosecution did not call its own experts on sleepwalking, one explanation being frank disbelief that the defence could succeed.
The point made in these cases is that the key component of the two categories of cases identified by Lord Denning in ''Bratty'' is a defendant's inability to control their behaviour and not the way in which loss or impairment of the conscious or deliberative functions of the mind arises. Similarly, under the Swedish penal code, acts during sleep and unconsciousness, reflex movements, spasms and convulsions, as well as acts performed under physical force or hypnosis are generally not punishable. Moreover, omissions caused by sleep, weakness, physical numbness or anaesthesia are generally not blameworthy. The issue is whether the accused had the ability to control the behaviour, including taking early precautions to avoid loss of control. But, in English law, the ruling in ''R v Sullivan'' (1984)
AC 156 held that, for the purposes of the[M'Naghten rules, a disease of the mind need have no permanence, leading many academics to suggest that sleepwalkers might well be found to be suffering from a disease of the mind with internal causes unless there was clear evidence of an external causal factor. In ''R v Burgess'' the Court of Appeal ruled that the defendant who wounded a woman by hitting her with a video recorder while sleepwalking, was insane under the M'Naghten rules. Lord Lane said, "We accept that sleep is a normal condition, but the evidence in the instant case indicates that sleepwalking, and particularly violence in sleep, is not normal."
Overall, this emphasis on control rather than consciousness is supported by clinical science.
[Hughlings Jackson, ''Automatism as Disinhibition'' (1998) 6 ''Journal of Law and Medicine'' 73.] Michael Coles says:
Insanity
A discussion of the relationship between automatism and insanity and "internal" and "external" factors is in M'Naghten rules. The internal-external divide is a doctrine of English law, but not followed in Canada for example - hence Parks' acquittal.
Drunkenness
Voluntary intoxication is ''not'' automatism. Involuntary intoxication ''can'' constitute automatism. This was the decision in ''R. v Hardie'' [1985] 1 WLR 164, although this decision may have been the result of judicial misunderstanding of the effects of diazepam. However, in ''Kingston'' [1994] 3 WLR 519, a man with normally controlled paedophiliac urges succumbed to them after being drugged unknowingly for blackmail purposes; he was found still able to form the ''mens rea'' for
indecent assault
Indecent assault is an offence of aggravated assault in some common law-based jurisdictions. It is characterised as a sex crime and has significant overlap with offences referred to as sexual assault.
England and Wales
Indecent assault was a broad ...
. This decision has been much criticised by jurists.
Provocation
To constitute a
provocation
Provocation, provoke or provoked may refer to:
* Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions
* Agent provocateur, a (generally political) group that tries to goad a desired res ...
, there must be a sudden and unexpected loss of control as a result of things said or done but the accused is still capable of activity which is sufficiently directed to cause the death of another. Hence, there is insufficient loss of control to constitute automatism e.g. as in the Canadian case of ''Bert Thomas Stone v R'' (1999
Provocation is only a partial defence, a concession to human frailty, and not a complete defence like automatism.
See also
*
Sleep sex
Sexsomnia, also known as sleep sex, is a distinct form of parasomnia, or an abnormal activity that occurs while an individual is asleep. Sexsomnia is characterized by an individual engaging in sexual acts while in non-rapid eye movement ( NREM) ...
*
Highway hypnosis
Highway hypnosis, also known as white line fever, is an altered mental state in which a person can drive a car, truck, or other automobile great distances, responding to external events in the expected, safe, and correct manner with no recolle ...
References
Sources
*Beran, Roy. ''Automatism: Comparison of Common Law and Civil Law Approaches – A Search for the Optimal'', (2002) 10 Journal of Law and Medicine, 61.
*Glass, H. H., ''Hypnosis and the Law'', (1971) 3 Australian Journal of Forensic Science, 162-167
*Gould, Patricia E., ''Automatism: The Unconsciousness Defence to a Criminal Action'', (1978) 15 San Diego Law Review, 839-858.
*Harding, Richard W., ''Sane and Insane Automatism in Australia: Some Dilemmas, Developments and Suggested Reforms'', (1981) 4 International Journal of Law and Psychiatry, 73-87.
*Horder, Jeremy, ''Pleading Involuntary Lack of Capacity'', (1993) 52(2) Cambridge Law Journal, 298-318.
Kado, Ayako & Fisher, Larry R. ''Sleepwalking – Nightmare for the courts''Rosengren, Caroline, ''Mad or Bad: Criminal Responsibility and Mental Disorder'' (2004) University of Lund, Masters Thesis.*Schopp, Robert F., ''Automatism, insanity, and the psychology of criminal responsibility. A philosophical inquiry'', Cambridge, Cambridge University Press, 1991,
*Tolmie, Julia, ''Alcoholism and Criminal Liability'', (2001) 64(5) Modern Law Review, 688-709
Yeo, Stanley, ''Situating Automatism in the Penal Codes of Malaysia and Singapore'', LawAsia Journal 2003/2004
External links
* Trial of Brian Thomas, 2009
* UK Ministry of Justice consultation, 2012
{{Mental health law
Criminal defenses
Mental health law