Introduction
The underlying question that will be explored in this research project is ‘Does the Anglo-Welsh legal system obtain internal consistency when considering the defence of automatism in relation to cases of diabetes?’ The project will examine the definition of automatism, addressing its positives and limitations hence ultimately proposing grounds for improvement. The project will also consider whether the current test for automatism is fit for purpose or in need of reform and modernisation. Finally, the project will compare cases, specifically that of Quick[1] and Bailey[2], identifying defects and drawing conclusions. The project will also be distinguishing whether the cases are treated with similar merit and thus leading to fair outcomes or if the law surrounding this field is simply flawed and in desperate need of reform. Prior to the commencement of the research, the dominant view was that the Anglo-Welsh legal system strives for consistency when determining the sentencing of cases which are surrounded by automatism. However, after closer consideration and gaining further insight into the view predominately shared by legal scholar Nicola Padfield [3], it is safe to conclude that the law surrounding the defence is clearly inconsistent, leading to unfair outcomes and thus going against the fundamental principles of law.
Diabetes is a common chronic condition in the UK. The number of people affected by this illness reached 4.7 million in 2019.[1] There are two types of diabetes: hyperglycaemia and hypoglycaemia. Hyperglycaemia is where the individual has too much sugar in their body and does not produce enough insulin; this is seen as an internal factor brought about by the diabetes itself, and is treated by insulin injections. Common symptoms include more frequent urination, tiredness and weight loss. Hypoglycaemia, on the other hand, is where the sugar levels are too low and the body produces too much insulin. Typical symptoms are hunger, feeling dizzy, irritability and shaking. Actions taken to control hypoglycaemia involve taking high sugar foods. However, hypoglycaemia may also be brought about by excess medication in the form of insulin injections and as such, hypoglycaemia may be deemed to be caused by external factors. In order for a successful use of the defence, the defendant must demonstrate that the hypoglycaemia did not result from a ‘person’s own recklessness’[2] but that it was ‘caused by the insulin’[3] itself. The Anglo-Welsh criminal law recognises incapacity as a defence to criminal charges. Incapacity can be sane automatism and thus a complete acquittal may be available when hypoglycaemia occurs without prior warning or fault on the part of the defendant. However, if the individual is reckless in managing their diabetes, knowing possible outcomes of their condition, then they will be convicted based on self-induced incapacity. The defendant may also use the defence of insanity if the diabetic episode is considered an internal factor. If successful, then the defendant would be found 'not guilty by reason of insanity'. However, this would deem them 'legally' insane, amounting to a disease of the mind (absent mens rea) and lead to potential detention under the Mental Health Act - not likely to be a desired outcome for the defendant. A typical scenario might involve a defendant pleading non-insane automatism, the judge ruling that the form of automatism under consideration would constitute insane rather than non-insane automatism and the defendant then changing their plea to 'guilty' precisely in order to avoid a finding of 'not guilty by reason of insanity'.
Background
Automatism is a defence against criminal liability for those who perform unlawful acts in a ‘state of unconsciousness or semi-consciousness’.[1] The defendant suffers a ‘complete loss of voluntary control caused by an external factor’[2], such as a blow to the head or taking prescribed medication, and thus is not fully aware of his or her actions.[3] The law, unlike medicine, divides automatism into two further categories, sane and insane automatism. The courts consider that internal factors such as mental health illness or sleep walking constitute insanity, or insane automatism. The case of Bratty[4] establishes the basic principle of automatism as one that is not punishable under the law. This is supported by the ruling in Quick [5] where Lord Denning stated that ‘no act is punishable if it is done involuntarily’[6], establishing the complete defence and thus acquittal of a defendant who successfully claims sane automatism. A successful plea of automatism is a not only claim that the defendant lacked the necessary mens rea but he or she also denies the actus reus and claims not to have committed the criminal act.
Literature review and discussion
In order to enhance the project, it was required to gain a full understanding of automatism and the theory surrounding criminal defences. Hence, the use of an academic textbook by Jonathan Herring [1]. This source lays out the fundamental law surrounding the defence of automatism to give a basic understanding of the topic in question. The textbook being simply a tertiary source does not necessarily provide any critical analysis on whether automatism creates internal consistency in relation to diabetes, hence the need to expand the research to more analytical sources such as those of academic articles in particular those of Jennifer Temkin[2] and Nicola Padfield [3]. A view that is prominent in the work of both scholars is the notion that law surrounding the defence of automatism is inadequate and thus creates inconsistencies within the justice system. Temkin concentrates her criticism on the judiciary who ‘persistently fail to identify the true purpose of specific legislation’[4] due to their narrow-minded views and their ‘concentration on minutiae of words’[5] rather than perceiving each case with a unique angle and thus making the defence more versatile. A similar point made by Padfield is that the ‘unsatisfactory nature of the defence’ [6] is creating inconsistencies within the law and forcing innocent people to plead ‘guilty to an offence for which they may not have had the necessary fault.’[7] Although Padfield writes fifteen years after Temkin, nevertheless it shows that the law surrounding the defence of automatism has changed little and that it is still creating inconsistencies within the legal system.
Another element that both scholars take into consideration is the fact that the defence of automatism is restrictive in particular when considering the cases of Quick [8] and Bailey. [9] The cases are similar in material fact, yet a distinguishing factor is the final verdict. In Quick, the defendant was a nurse who attacked a patient whilst on duty. The defendant was charged with assault occasioning ABH under s47 Offence Against the Person Act 1861. Similarly, Bailey was charged with wounding with intent. In Quick, at the time of the attack the defendant was hypoglycaemic as he had taken too much insulin, eaten very little and additionally consumed alcohol prior to the attack. In Bailey, the defendant claimed hypoglycaemia on the grounds that he had failed to eat after a dose of insulin. Quick established the notion that medication taken to counter hypoglycaemia is seen as an external factor and thus the defence of automatism is allowed without the defendant being deemed insane. Bailey follows the ruling in Quick and adds to the fact that self-induced automatism can be used as a defence to crimes of basic intent (where the mens rea for an offence may be intention or recklessness, such as manslaughter). By stressing the relevant conditions, Quick frames diabetes as not necessarily a disease of the mind. Building on that notion, Bailey establishes the clarification that hypoglycaemia may give rise to a defence of automatism unless the prosecution can show recklessness on the accused's part in bringing about the hypoglycaemic episode, for example being aware of an imminent hypoglycaemic episode and not taking the necessary action to avert it. Thus, Temkin’s view is that the case of Quick is a further indication of a ‘judicial tendency to restrict the defence of automatism.’[10] Similarly, Padfield describes the area of law established in Quick as a ‘quagmire’,[11] once again drawing attention to the unstable and unreliable law surrounding the defence of automatism.
An area that many scholars cannot come to a compromise over is the notion of reform and change in relation to the defence of automatism. Temkin agrees with the view of Lawton LJ that the problem should be approached using ‘common sense’, [12] in that viewing each case through a unique lens and applying common sense instead of following a particular rule or the one established in Quick as it does not necessarily create fair outcomes for all. Hence, Lawton LJ suggested a complete reform and the abolishment of previous laws and rules established for the defence. Where Padfield disagrees is that ‘perhaps codification is a better solution than reform.’[13] Codifying the principles established in Quick would mean that there would be a solid rule that would be followed in all cases relating to automatism, leaving no room for injustice within the law. Both of these views are of merit, yet the views displayed in the work of Padfield are of greater merit as she not only establishes grounds for change in relation to the defence, she also mentions the element of diabetes, outlining, the fact that the ‘legal definition bears little relationship to their medical counterparts’.[14] This approach highlights grounds for improvements and the involvement of medical specialists in the legal definition of automatism, thus creating a more accurate definition of automatism both legally and medically.
Conclusion
Through the study of prominent cases, in criminal law, it can be established that the law on automatism is of an unsatisfactory state and in need of urgent reform. In terms of reform, it has been suggested that the ‘whole classification of automatism be dropped.’[1] What is deemed more sensible is to base judgement on the merits of each case alone and basing sentencing on a combined legal and medical assessment. Improved assessments would show how conscious the defendant was at the time of the act, the likelihood of an episode of recurring and finally whether there are any underlying causes that triggered the episode. There would therefore be no sense in ‘classifying hypoglycaemia’[2] as an automatic state and hyperglycaemia as a state of insanity, leaving no room for confusion and bias within the court room. These elements combined would be the prime factors to determine the consequences for the defendant. However, what should also be considered as a reasonable short-term alternative is the codification of cases such as Quick and Bailey as models and abiding principles.
Bibliography
Books
Fenwick, P, Bluglass, R and Bowden, P The principles and practice of forensic psychiatry (1st edn, OUP 1990)
Herring, J Criminal law text, cases and materials (8th edn, OUP 2018)
LaFave, Wayne R Substantive Criminal Law (1st end, OUP 2003)
Journal articles
Beaumont, G ‘Automatism and hypoglycaemia’ (2007) 14 Journal of Forensic and Legal Medicine 103.
Maher, G, Pearson, J and Frier, B ‘Diabetes mellitus and criminal responsibility’ (1984) 24 Medical Science and Law 95.
Padfield, N ‘Exploring a quagmire: Insanity and Automatism’ (1989) 48 The Cambridge Law Journal 354.
Temkin, J ‘Automatism and Proper Precautions’ (1974) 37 The Modern Law Review 199.
Websites
Diabetes UK, ‘Number of people with diabetes reaches 4.7 million’ (Diabetes UK, 25 February 2019) <https://www.diabetes.org.uk/about_us/news/new-stats-people-living-with-diabetes> accessed 20 April 2020.
Reports
Law Commission, ‘Criminal liability: insanity and automatism a discussion paper’ (2013) Discussion paper <https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/06/insanity_discussion.pdf>
Table of cases
Bratty v A-G for Northern Ireland [1963] AC 386.
R v Bailey [1983] Crim LR 353.
R v Quick [1973] 3 All ER 347.
Endnotes
[1] R v Quick [1973] 3 All ER 347.
[2] R v Bailey [1983] Crim LR 353.
[3] Nicola Padfield, ‘Exploring a quagmire: Insanity and Automatism’ (1989) 48 The Cambridge Law Journal 354.
[4] Wayne R LaFave, Substantive Criminal Law (1st end, OUP 2003).
[5] Wayne R LaFave, Substantive Criminal Law (1st end, OUP 2003).
[6] Guy Beaumont, Automatism and hypoglycaemia (2007) 14 Journal of Forensic and Legal Medicine 103.
[7] Bratty v A-G for Northern Ireland [1963] AC 386.
[8] R v Quick [1973] 3 All ER 347.
[9] Jonathan Herring, Criminal law text, cases and materials (8th edn, OUP 2018).
[10] Diabetes UK, ‘Number of people with diabetes reaches 4.7 million’ (Diabetes UK, 25 February 2019) <https://www.diabetes.org.uk/about_us/news/new-stats-people-living-with-diabetes> accessed 20 April 2020.
[11] G Maher, J Pearson and B Frier, ‘Diabetes mellitus and criminal responsibility’ (1984) 24 Medical Science and Law 95.
[12] G Maher, J Pearson and B Frier, ‘Diabetes mellitus and criminal responsibility’ (1984) 24 Medical Science and Law 95.
[13] Jonathan Herring, Criminal law text, cases and materials (8th edn, OUP 2018).
[14] Jennifer Temkin, ‘Automatism and Proper Precautions’ (1974) 37 The Modern Law Review 199.
[15] Nicola Padfield, ‘Exploring a quagmire: Insanity and Automatism’ (1989) 48 The Cambridge Law Journal 354.
[16] Jennifer Temkin, ‘Automatism and Proper Precautions’ (1974) 37 The Modern Law Review 199.
[17] Jennifer Temkin, ‘Automatism and Proper Precautions’ (1974) 37 The Modern Law Review 199.
[18] Nicola Padfield, ‘Exploring a quagmire: Insanity and Automatism’ (1989) 48 The Cambridge Law Journal 354.
[19] Nicola Padfield, ‘Exploring a quagmire: Insanity and Automatism’ (1989) 48 The Cambridge Law Journal 354.
[20] R v Quick [1973] 3 All ER 347.
[21] R v Bailey [1983] Crim LR 353.
[22] Jennifer Temkin, ‘Automatism and Proper Precautions’ (1974) 37 The Modern Law Review 199.
[23] Nicola Padfield, ‘Exploring a quagmire: Insanity and Automatism’ (1989) 48 The Cambridge Law Journal 354.
[24] Jennifer Temkin, ‘Automatism and Proper Precautions’ (1974) 37 The Modern Law Review 199.
[25] Nicola Padfield, ‘Exploring a quagmire: Insanity and Automatism’ (1989) 48 The Cambridge Law Journal 354.
[26] Nicola Padfield, ‘Exploring a quagmire: Insanity and Automatism’ (1989) 48 The Cambridge Law Journal 354.
[27] P Fenwick, R Bluglass and P Bowden, The principles and practice of forensic psychiatry (1st edn, OUP 1990)
[28] Law Commission, ‘Criminal liability: insanity and automatism a discussion paper’ (2013) Discussion paper <https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/06/insanity_discussion.pdf>