General Defences (1)Insanity andAutomatism MAH 2011-12 G153
Hang on... A general defence?Yup... That’s right we are looking at defences which may apply to more than murder. They are known as general defences because (in theory) they apply to all criminal offences. Duress & Insanity Automatism Intoxication Necessity
What do you think? Student Task: Before we look at the law... What do you think? On the cards are 8 scenarios.You need to read them and put them into one of three categories: Insane Automatistic No defenceBe prepared to defend your decision!
Now you‟ve got an idea of some of the issues...How does the law work in practice? 1. What was the verdict for Mr Lowe and what type of „punishment‟ did he receive?Read the article and see if you 2. What do we mean by automatism?can work out the answer to the following questions 3. What factors were considered important in establishing whether or not he was acting in an automatistic state? 4. What is the difference between insane and non-insane automatism? 5. Why do you think the jury decided it was insane automatism (aka insanity)? 6. Look at the two cases at the end of the article. i. Why was Mr Sokell not able to successfully argue either insane or non-insane automatism? ii. Why was Mr Buck acquitted on the basis of non- insane automatism? 7. What do you learn about D and his previous behaviour?
Applying your understanding (AO2)Have you understood? Insane or non-insane automatism? Would they be successful? RRvv Whoolley1970 R v Thomas 1984 Hardie 2009 Lipman 1997 D had suffered from who, dreaming him, he was had D’s girlfriend was breaking up withfeet away He was a was taken LSD andsleepwalking all his life. he the a lorry driver was when 60 that and from fighting with snakes. slow moving car in front began, gave him some of her nightmare that it. His broke into their caravan and distressed over youthsgirlfriend without warning, tohe sneeze. The He woke him find that he had killed his fought tablets to calmup todown, valium back.sneezing fit consisted of approximately He awoke to find that he had killed his of seconds. four wife.to five sneezes and lasted a couplegirlfriend by cramming eight inches of sheet down her throat. However, the tablets had a rather opposite effect, As had stopped setting fire to a wardrobe. He a result him taking anti-depressants and other resulting inhe crshed into the car, causing a seven car Insanity or seriously injuring some of the drivers. pile up and automatism? drugs before the holiday. . Insanity or automatism? Insanity or automatism? Successful or not? Successful or not? Successful or not?
Insanity M’Naughten 1843 He was labouring under such a defect of reason caused by a disease of the mind, as to not know the nature and quality of the act he was doing, or if he did know it, that it was wrong.
Can I use it in the Magistrates’ Court? But Yes... DPP v Harper 1997
Special Verdict Not Guilty by Reason of Insanity Doesn’t mean go free! What about murder? Are we talking about a lot of Punishment or defendants? Recent disposal treatment? reforms Student ThinkingWhat problems with the law on insanity can you spot so far?As a lawyer, why might you encourage your client to plead using one of the other mental conditiondefences?As a client, why might you not want to plead NGRI, even if you are suffering from a mentaldisorder?Finally… is the verdict right? Some people argue that it should be „guilty but insane‟ and others thatit should simply be „not guilty‟. What do you think? Why?
Element One: Defect of Reason R v Clarke• Is absentmindedness enough?• What about irresistible impulses?
Element Two: Disease of the MindThe key problem here is the word mind.If it was brain... this whole area would be a lot easier! R v Kemp “the ordinary faculties of reason, memory and understanding.”
Whilst you are waiting... What are the words? Inn-Sam-It-Tea (insanity) PR Auto-mat-prism (automatism)Men-tall con-dish-on deaf-fences (mental condition defences)
Check you got the essentials... Complete the passage below, using what you have learnt so far about insanity.Insanity is a general defence which can be usedused in either court. If successfully argued it results which can be in either court. If successfully argued it results inthe special verdict of not guilty by reason of insanity. This by reason of insanity. Thisone of threein the of not guilty allows the judge to make allows thedisposals, depending three circumstances of the case. circumstances of the case. Either ajudge to make one of on thedisposals, depending on theEither a hospital order, a supervision orderor an absolute discharge. The only exception is the crime of murder which exception have acrime order, a order or an absolute discharge. The only must still is themandatory hospital order attached. have a mandatory hospital order attached.of which must stillThe defence originates from the case of M’Naughten, where the House of Lords stated that to be , where the House of Lords stated that toinsane D D had to be suffering from a defect of reason, caused by a disease of mind, such thatbe insanehad to be suffering from a defect of reason, caused by a disease of thethe mind, sucheitherthat he does not know the nature and quality of whatandis doing, or that it is wrong.he is doing, he does not know the he of what This is anold test, isor that itwhich puts theThis is an old test, which puts the burden of proof on . burden of proof on D. .The courts have interpreted ‘defect of reason’ as a complete absence of reason. This means thatthose who give in to an ‘irresistible impulse’ would not be covered by the defence. The courtshave, however, taken a much wider approach to the meaning of disease of the mind, holding thatit includes anything that affects the ‘‘ordinary faculties of reason, memory and understanding’, and ’, and so including a range ofso including a range of physical, as arteriosclerosis andphysical, treatable diseases suchtreatable diseases such .as arteriosclerosis and epilepsy. Can you name the key cases for each of the areas of insanity we have already looked at?
Key Case R v Sullivan 1984 1. What was the condition D was suffering from? 2. What are the facts of the case? 3. What does „disease of the mind‟ mean legally? 4. Does the impairment need to be permanent? 5. What could cause “non-insane automatism”? 6. What is the only way that the law could be changed?AO2: Is our definition of disease of the mind appropriate?
A real issue: What about sleepwalking?Classic approach: Burgess Murder: What implication does this have for Lowe 2007 the general population? Thomas 2009 Is the verdict appropriate for the defendants?
Different crimes, different rules? R v BiltonFacts:Why was non-insane automatism allowed to go tothe jury? Do you agree with the outcome of the case?Why/why not? confirmed in... R v Ecott 2007
“The current response to the problem of sleepwalking is confused and unclear” Student Task: Developing your reasoning Decide whether or not you agree with the statement above... and why! Challenge: Use at least one case in your reasoning.
Other conditions? R v Hennessey R v Quick Waddya think?What problems can you see regardingthese two cases?Which of these defences would youprefer? Why?
Element Three: Nature and Quality Either You don‟t know what you are doing; Or You don‟t understand it. Why is this a problem for the law?You are paranoid and convinced that Miss Hart has been taken over byand infected by the devil. You have tried talking to me and it doesn‟twork. You know that if you leave it, my stomach and internal organs willslowly be eaten away. To save me, you decide to cut me open knowingthat I might die. Do you have a defence of insanity?
Element Four: It was wrong Moral? Legal? Codere 1916 Windle 1952wrong “according to the “Acting contrary to... ordinary reasonable The law of the land.”standard adopted by the reasonable man” Johnson 2007 Here‟s a bigger question... What should the test be? Why?
Does the current law work? Encompasses Johnson 2007, makes it Insanity isYou will be given one of clear that the not a term physical, treatablethese points to prepare. diseases. M’Naughten test has used by been consistently applied psychiatrists 64% of males in WARNING by the courts. prison have a By trial, You will present your personality Really only provides a defence to many D areargument to the rest of ‘sane’ in disorder the fully delusional or blackout D the class. appearance Should juries really be making Numbers pleading NGRI: Could any of these medical judgments? 1988 – 4 pleadingsstatements help you...? 1992 – 6 pleadings Reforms on disposals have opened up 2001 – 15 pleadings the plea Evidence is that not all Provides Inconsistent with psychiatrists can apply the protection the civil law and test – ‘wrong’ as moral. for the mental disorder public, and a way to treat The other mental condition defences of diminished D responsibility and automatism provide further protection
Plenary:How much have you learnt? Bearing in mind your target grade, and what you want toachieve at the end... answer one of the following questions?A Consider whether the recent changes to insanity have been an effective reform.B Justify the current approach of the courts to insanityC Describe the approach of the court to the problem of the sleepwalking defendant.D Explain what is meant by a disease of the mindE Identify the outcome of successfully pleading insanity?
Homework Complete task one on the front of the handout. Using your own words and understanding, produce at least one side detailing the problems with the current law and considering the proposals for reform. Due: 9th November 2011 Stretch and consolidation: Aim to refer to at least three cases in your argument!
Starter: What’s what? Sort out the cards! You have the descriptions of the three mental condition defencesand examples in your pile... can you sort them out? Defence Means Result Cause Example
Starter:What’s the case… and which is the odd one out? This is the concept that we will be focusing on today… what is meant by automatism and what is it‟s scope?
But first…How confident are you with insanity? Across 3. The key case - epileptic who came to tea (8) 5. The correct term for sentencing when D is found NGRI (7,7) 8. The people who decide sanity (4) 9. Condition suffered by Hennessey. (13) 11. All people are presumed to be this (4) 12. Condition D was afflicted with in R v Kemp, which he argued was physical (16) 13. General term for the direction make under the 1991 Act. (5) 14. Case illustrating that forgetfullness is not sufficient (6) 15. The key case on insanity, setting out the rules (9) 16. One of the orders under the 1991 Act (10) Down 1. The defect of mind must be caused by this.(7,2,4) 2. The test for wrong R v Windle (5) 4. ............. and quality. One of the conditions (6) 6. Sleepwalking = insanity (7) 7. The ................ faculties of memory, reasoning and understanding. (8) 9. case of the vengeful diabetic. An external cause is not sufficient for insanity (12) 10. NGRI + this leads to automatic indefinate hospital detention. (6) 15 minutes… 15 questions… one prize!
General Defence Two: Automatism Unlike insane automatism, sane automatism results on a complete acquittal.AO2 Thinking:Why is it a defence?
What type of thing could be automatistic?What cases have we coveredwhich are automatistic?What conditions might beautomatistic?
Enough Faffing…What is an automatistic action?Bratty v Attorney General for What do you notice about Northern Ireland Denning’s definition? “act done by muscles without any control by the mind, such as a What limitations does Denning impose on the spasm, a reflex action or a definition? convulsion, or an act done by a person who is not conscious of what he doing such as an act done whilst suffering from concussion or sleep walking.” Stretch and Challenge: Denning LJ How does this link to the current meaning and interpretation of insanity?
What else might it cover? Hill v Baxter T• Must be some medical • PTSD could be enough as evidence, a ‘mere assertion’ long as it manifests itself is not enough physically.• A swarm of bees or sneeze • But the ratio of could constitute an Narborough 2006 seems involuntary action. to have limited this.Confirmed in Woolley 1997
What doesn’t it cover? R v Rabey “ the ordinary stresses and disappointments of life aren’t enough.”
Is a Partial Loss of Self-Control Enough?Attorney-General’s Reference (No.2 of 1992) 19931. What was the question posed to the court?2. What were the facts of the offence?3. Was D convicted? How do you know?4. What is the difference between insane and non-insane automatism? Give an example for each.5. What was the basis of the plea of automatism? Case Automatism? Insanity?6. Which part of the Burgess test did Hennessey the facts fail?7. The report mentions four cases Quick which are relevant. Complete the grid Sullivan to show your understanding! Burgess
R v Bailey Self induced automatism? Should D have been able to rely on automatism as a First question: is it a basic or specific intent crime? defence? Basic What evidence is there to refute this? Specific Basically... it‟s a little more complicated Lipman D doesn’t know that his actions are likely to lead to a D was reckless in self induced state getting into the where D completes automatistic state the offence through voluntary intoxication Hardie
Finally:How much do you know about automatism? Student Task: On your back page, you have the first half of each of these sentences... Can you match them to the end and complete the summary?
Putting the assessment objectives together…“The law relating to the defence of insanity is outdated and unsatisfactory. Reform is long overdue in theinterests of both justice and common sense.”Evaluate the accuracy of this statement.  The following response comes from a student in 2008. You are going to mark it! 1. Read it! What are your initial first impressions? Wide-ranging/Good/Adequate/Limited/Very limited 2. Look at the indicative mark scheme, and the examiners‟ comments and annotate the answer for: Strengths Weakness
What did you mark it as? AO1 AO2LEVEL 5 Wide-ranging, accurate, detailed Ability to identify correctly the relevant andknowledge with a clear and confident 21- important points of criticism, showing good 17-20 It actually received:understanding of the relevant concepts 25 understanding of current debate and proposalsand principles. Where appropriate, for reform, or to identify all of the relevantcandidates will be able to elaborate with points of law in issue. A high level of ability to AO1 = 18wide citation of relevant statutes and caselaw develop arguments, and reach a cogent, logical and well-informed conclusion. AO2 = 16LEVEL 4 Good, well-developed knowledge 16- Ability to identify and analyse issues central to the question, showing some understanding of 13-16 AO3 = 4with a clear understanding of the relevant 20 current debate and proposals for reform, or to Total: 38 (B)concepts and principles. Where identify most of the relevant points of law inappropriate, candidates will be able to issue. Ability to develop clear arguments andelaborate by good citation to relevant reach a sensible and informed conclusion.statutes and case-law.LEVEL 3 Adequate knowledge showing Ability to analyse most of the more obviousreasonable understanding of the relevant 11- points central to the question or to identify the 9-12concepts and principles. Where 15 main points of law in issue. Ability to developappropriate, candidates will be able to arguments and reach a conclusion.elaborate with some citation of relevantstatutes and case-law.LEVEL 2Limited knowledge showing Ability to explain some of the more obviousgeneral understanding of the relevant 6-10 points central to the question or to identify 5-8concepts and principles. There will be some of the points of law in issue. A limitedsome elaboration of the principles, and ability to produce arguments based on theirwhere appropriate with limited reference material but without a clear focus orto relevant statutes and case-law. conclusion.LEVEL 1 Very limited knowledge of the Ability to explain at least one of the simplerbasic concepts and principles. There will 1-5 points central to the question or to identify at 1-4be limited points of detail, but accurate least one of the points of law in issue. Thecitation of relevant statutes and case-law approach may be uncritical and/or unselective.will not be expected.
Any areas you have put nothing for... Plenary Were you missing? How confident are you? Did you ask? Have you researched? I know what I can I can evaluate this is. describe this or discuss this The implications of pleading insanity The definition of insanity from M‟Naughten The interpretation of defect of reason The interpretation of disease of the mind What is meant by nature and quality and wrong The definition of non-insane automatism The approach of the court to self induced automatism The problems with the current law on insanity and automatism.
Starter: What’s what? Sort out the cards! You have the descriptions of the three mental condition defencesand examples in your pile... can you sort them out? Defence Means Result Cause Example
Plenary:Assess your learningThinking about your target grade, what you want to achieve and your understanding… which can you answer? A Consider whether the recent reforms to the law on insanity have been successful Evaluate one issue with the current law on B insanity Describe the approach of the courts to the problem C of sleepwalking and insanity D Explain what the outcome of successfully pleading insanity is. E What is the definition of ‘insanity’
So what can you tell me about mental condition defences?Complete the brainstorm below to show your understanding of the AO1 for this topic Means? Means? Result? Result? Mental automatism Insanity condition defences
Developing your AO2Snowballing the discussion Building up the AO1 and AO2* 1. Each of you has a statement at the top of the page. You need to say what it is… and throw! 2. Then for the one you have been given, describe this element (what it covers, examples of cases etc.)… and throw it again! 3. Now evaluate or discuss the point you have in front of you. Why is that the correct approach in the law? You now have an What problems may arise? example of well Have the courts been explained and linked consistent? AO1&2, which you can Is this approach fair? use for *this is building on your feedback last lesson!
Applying the law: Section C QuestionsRashid suffers from diabetes. He has previously sufferedblackouts due to hyperglycaemia and been placed on medication Some Pointers:which he normally takes three times per day. He fails to take hisinsulin for a whole day and during the evening, while driving, hesuffers from a blackout. He loses control of his car and crashes 20 marksinto a pedestrian, Larissa, who is on the pavement. Larissa dies All AO2instantly. Respond in bulletpointsEvaluate the accuracy of each of the four statements A, B, C,and D individually, as they apply to the facts in the above Must assess thescenario. truth of each statement.Statement A: Rashid may be charged with the manslaughter ofLarissa because the condition was self-induced. Treat each statement separatelyStatement B: Rashid may plead the defence of automatism No case facts Knowing yourStatement C: Rashid may be found not guilty by reason ofinsanity. definitions is the key to these!Statement D: Rashid may be hospitalised in a secure institutionfor the mentally disordered if found not guilty by reason ofinsanity.
Answering the question!Statement A: Rashid may be charged with themanslaughter of Larissa because the condition wasself-induced.
Answering the question!. Statement B: Rashid may plead the defence of automatism Student task: In your groups, you are each going to be given one of these problems, and then complete the answer and present it back to the class. Statement C: Rashid may be Remember that you have the model of Statement A to found not guilty by reason of guide you! insanity Statement D: Rashid may be hospitalised in a secure institution for the mentally disordered if found not guilty by reason of insanity.
Homework Complete task two (re-writing the essay) aiming to improve both the level and the grade using your understanding and knowledge of the mental condition defences. Due: Friday 24th February 2012
You have now had a chance to go over Plenary this. Look over your responses How confident are you?yesterday, and change/add any which you can now do! I know what I can I can evaluate this is. describe this or discuss this The implications of pleading insanity The definition of insanity from M‟Naughten The interpretation of defect of reason The interpretation of disease of the mind What is meant by nature and quality and wrong The definition of non-insane automatism The approach of the court to self induced automatism The problems with the current law on insanity and automatism.