Mental capacity defences

Question 1

Define Automatism

Answer 1

The performance of actions without conscious thought or intention

Question 2

What is the case where Denning defined automatism as An act done by the muscles without any control by the mind, a reflex or a convulsion; or an act doe by any person who is not conscious of what they are doing.

Answer 2

Bratty v A-G for NI 1963

Question 3

Who decides Insanity or Automatism?

Answer 3

Law - Judge decides whether it is external or internal cause based on 2 medical expert opinions

Fact - Jury decides whether defence is allowed on facts

Question 4

Who is the burden of proof on?

Answer 4

Prosecution must prove guilty beyond reasonable doubt
If Defence raises insanity and prove it on balance on probabilities
May breach A6(2) presumption of innocence…

Question 5

What is the verdict of insanity?

Answer 5

Successful plea allows Judge to impose clinical options to help D instead of punishing them, eg:

Criminal Procedure (Insanity) Act 1964 - Special verdict is guilty by reason of insanity
1) An absolute discharge
2) Supervision and treatment order
3) Hospital order (For definite or indefinite time)
Murder charges require detention in hospital for indefinite period, may violate A5 right to liberty

Question 6

What is the Definition of Insanity?

Answer 6

Legal, not medical, comes from M’Naghten 1843

Starting point: Everyone presumed sane. D must prove they were suffering from defect of reason, so that they either did not know nature and quality of act or Did not know that it was wrong in law

Question 7

The accused must prove 3 things…

Answer 7

1) Defect of reason - Must be incapable of exercising powers of reason. May be perm or temp
Clarke 1972

2) Disease of the mind - Internal cause, physical disorder of the brain (Inflammation) or mental illness (Schizophrenia) or any internal disorder affecting mental powers (Reasoning, mental, understanding)
eg Brain tumour & Hardening of arteries, Kemp 1957 or Epilepsy Sullivan 1983 or Sleep walking and night terrors Burgess 1991 or Diabetes (Only Hyperglycaemia)

3) Did not understand nature and quality of act - Not aware what is physically happening OR
4) Did not know what he was doing was wrong - eg delusions

Question 8

What can a state of automatism be generated by in Diabetes?

Answer 8

1) The disease itself (internal) which causes high levels of blood sugar (hyperglycaemia) - Insanity
OR
2) The drug insulin (external) which can cause low levels (hypoglycaemia) - Automatism

Question 9

What was the case where D was charged w/ taking car and driving while disqualified. Diabetic who had been suffering from stress, not taken his insulin for 2 days and affected blood sugar. CA held - caused by disease therefore internal and insanity.

Answer 9

Hennessy 1989

Question 10

1) D placed items into handbag without paying, convicted with theft, said she did it absentmindedly - not insanity, but didnt get theft anyways.

2) P had arteriosclerosis - disease of mind? Yes, as it restricts blood flow to the brain and causes odd behaviour.

3) P kicked 80 yr old man due to epileptic fit, Jury told to consider insanity. D appealed & pled ABH. Appeal dismissed as judge made right decision.

4) D & Girlfriend asleep. D attacked with VCR in sleep. Internal cause - Not guilty by reason of insanity allowed

5) Had insane delusions whilst trying to kill PM Sir Robert Peel. Instead shot and killed another man. New partial def created.

Answer 10

1) Clarke 1972
2) Kemp 1957
3) Sullivan 1983
4) Burgess 1991
5) M’Naghten 1843

Question 11

What defined automatism?

Answer 11

Bratty v A-G for NI 1963 - Act done by the muscles without any control of the mind or an act done by someone not conscious of what he is doing due to concussion ro sleep walking, etc

Question 12

What is the case where D convicted of death by dangerous driving when fell asleep at wheel as automatism not allowed, and the example “ Had he blacked out or lost control because of a swarm of bees he would have been an automaton “

Answer 12

Hill v Baxter 1958

Question 13

What is the requirements for automatism?

Answer 13

1) Complete loss of control - Involuntary act
2) External cause
3) Not self-induced

Question 14

1) Involuntary Act

Answer 14

Accused must show fundamental and total loss of control (robotic actions)

Not enough to show accused had impaired control over actions
A-G ref no 2 1992

Question 15

What is the case where after driving for 6 hrs, D hit stationary vehicle on hard shoulder and killed 2 ppl, not asleep but in a trance, CA didn’t allow automatism as it was simply reduced awareness.

Answer 15

A-G ref No 2 1992

Question 16

2) External Cause

Answer 16

Inability to control actions must be caused by external factor - if internally caused, defence is insanity. Ordinary stresses & Anxieties not external cause.

R v T 1990

Question 17

What is the case where D was raped and got PTSD, committed ABH & Robbery, external factor allowed automatism to go to jury - not allowed as not complete LOC but did accept rape as external cause… however this happened 3 days after.

Answer 17

R v T 1990

Question 18

How does diabetes affect automatism?

Answer 18

Only hypoglycaemia can be automatism as low blood sugar or too much insulin due to taking insulin with insufficient force results in acquittal eg Quick 1973

Question 19

What was the case where D assaulted patient at mental hospital, he suffered hypoglycaemia as failed to take medication properly and not eaten, induced by external factor - automatism allowed

Answer 19

Quick 1973

Question 20

3) Self induced automatism

Answer 20

Where D knows conduct likely to bring on automatic state eg being reckless about health or being voluntarily intoxicated on medication

If D voluntarily put themselves in automatic state - def intoxication not automatism or insanity eg Coley 2013 took cannabis and attacked neighbours, not automatism.

D acts appropriately but there are unexpected results it is defence to specific and basic intent.

If D does not act appropriately (fails to eat w insulin or takes too much) it is a defence to specific but not to basic intent.

Question 21

Describe
a) Crimes of Specific intent
b) Crimes of Basic intent

Answer 21

a) Need intention - Murder, s18, attempts, etc
Self-induced automatism IS defence to specific intent offences if D lacks intention

Bailey 1983

b) Crimes of basic intent - What are they? May be committed recklessly - involuntary manslaughter, s20, etc.
Self-induced automatism generally not allowed if D knew risk.

Hardie 1984

Question 22

What is the case where a diabetic failed to eat and committed s18, Def wouldve been allowed but did not believe he was in automatic state

What is the case where they allowed automatism as taking valium and setting wardrobe on fire not reckless and not self induced.

Answer 22

Bailey 1983

Hardie 1984

Question 23

Describe Hypnotism

Answer 23

a) If the defendant pleaded hypnosis as defence must have lost control over their actions
b) If consented to hypnotism might be by self induced automatism
c) Unlikely to be insanity as no disease of mind but could be defect of reason

Question 24

What are the two factors that intoxication relies on as being available as a def?

Answer 24

1) Was the offence committed one of basic intent or specific intent?
2) Was D voluntarily or involuntarily intoxicated?

Question 25

Describe Involuntary Intoxication

Answer 25

D has defence to all crimes if involuntarily intoxicated unless has formed mensr ea of crime whilst drunk a) Spiked drinks - Where D is unaware or was forced to consume substance, Def of any crime if D did not form required mens rea b) Prescribed drugs taken deliberately but unexpected effect - If no reckless element in voluntarily taking prescribed drugs, intoxication is defence. eg Bailey c) drugs are taken to have a sedative, soporific effect but have diff result eg Hardie 1984 Drunken intent - Intoxication no def if D still formed MR eg Kingston 1994 - even if D didnt know strength of drink Allen 1989

Question 26

What is the case where: 1) D took valium prescribed for someone else, hoping to calm down, however caused unpredictable behaviour and caused him to burn wardrobe. Not guilty of crim dmg as not reckless, took it with best intentions. 2) Drugged by blackmailer, filmed him abusing child, guilty of indecent assault as MR already formed 3) Homemade wine stronger than anticipated, committed sexual assaults, held as guilty - voluntary.

Answer 26

1) Hardie 1984 2) Kingston 1994 3) Allen 1989

Question 27

Describe Voluntary intoxication.

Answer 27

Recklessness is enough for MR, reflecting public policy. Intoxicated people who commit crimes should be guilty. DPP v Majewski 1976 declared D automatically had MR as were drunk. Constructive recklessness - where Recklessness is constructed from recklessly getting drunk. Difficult to prove Specific intent crimes - Voluntary intoxication IS a def in this case. Principle prevails, if no Mr not guilty eg Sheehan & Moore 1975 - Drunken intent is still intent Fall-back principle: Altho def allowed, person who uses intoxication to escape specific offence will be convicted of any associated lesser basic intent offence eg Murder --> Manslaughter. This is not consistent. Lipman

Question 28

What happens if someone drinks for Dutch courage?

Answer 28

Voluntary intoxication no defence to crime, Mr already formed. eg A-G for NI v Gallagher 1963

Question 29

What is the case where... 1) Four counts of ABH & Three counts of assaulting police constable. Intoxication alone is recklessness. 2) DD poured petrol over homeless man, guilty for constructive manslaughter as intoxication allowed, P could not prove MR formed. 3) D not guilty of murder as no MR. Had no def to invol MS. D thought he was killing a serpent and not his gf after taking LSD. 4) D decided to kill wife, got drunk to help him do it. Guilty of murder.

Answer 29

1) DPP v Majewski 1976 2) Sheehan & Moore 1975 3) Lipman 4) A-G for NI v Gallagher 1963

Question 30

3) Intoxicated Mistake

Answer 30

Mistake due to intoxication will be defence to specific if it means D idd not hvae MR. Mistake and Self Defence: It is no defence if D mistakenly believes he is being attacked due to drunkenness. O'Grady 1987 Hatton 2005 Public policy: Vol intox no defence to basic intent, Legal principle: Vol is defence to specific intent, NO MR: No intent.

Question 31

What is the case where: D & V drunk. Woke up thinking V was hitting him. Killed w/ Ashtray. Held- self def not allowed due to voluntary intoxication. D drank 20 pints. Killed flatmate with sledgehammer. D claimed he couldnt remember what happened but thought friend was hitting him. Drunken mistake not allowed.

Answer 31

1) O'grady 1987 2) Hatton 2005

Question 32

What is the AO3 of Intoxication?

Answer 32

Adv: If crime is basic intent, Law clear and no def in cases like Majewski where drink and drugs led to crime. Recklessness MR enough. Lord Denning introduced fallback principle where if D does not have MR for spec intent it will fall to lesser offence. Legal principle is that should be def. Public policy is not. Pleasing public policy; def is restricted and cant be excuse for crime. Cannot use dutch courage eg Gallagher. Disadv: No distinction between drinks & Drugs. Class A & B drugs treated same as alcohol For cases eg murder, intoxication drops to lesser liability eg Lipman. Theft does not have any lesser, they will just get acquitted instead. Involuntary intoxication occurs through no fault of D. Complete Def, making it hard to succeed with. Must be no awareness of it, eg Kingston - only sign of MR was that he already was a Pedo. Intoxication can be seen as aggravating factor. Fair if taken prior to offence?