A has proved a persistent source as a defence

A defence of insanity is crucial to the criminal justice system.

1This enable the law to recognise the imposition of the criminal punish thatshould be kept for those are mentally sane. Law Commission is currently waitingfor the response for Mental Capacity Act and the Deprivationof Liberty Safeguards which aim to protect people who lack mentalcapacity and cannot comprehend their actions, but who need to be deprived ofliberty so they can be given care and treatment in a hospital or care home.2 Automatism is that theact is carried out by the defendant’s muscle and unconscious mind but they arenot, at that point of time under the control or path of his/her conscious mindthen he or she may plead not guilty as he or she body in not in their controland may be acquitted.3This is referred to as the defence of automatism and it can be divided intoinsane automatism and non-automatism. Insane automatism is recognised asinsanity whereas non-insane automatism is known as automatism.The first condition forinsanity is that the accused’s act was caused by an internal factor and helacked mental capacity therefore is not suitable for trial on another handautomatism is caused by an external factor but his conscious mind isdissociated.

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  Insanity has proved a persistentsource as a defence and prior to 1991, it become very uncommon for thedefendant to plead it as a defence because, it is not a full acquittal eventhough a successful plea will bring about a verdict of ‘not guilty by reason ofinsanity’. In the case of Bratty v Attorney General for N Ireland(1963)4 LordDenning stated that automatism simply means; “An act which is done by themuscles without the control by the mind, such as a reflex action or aconvulsion; or an act done by a person who is not aware of what he or she isdoing, such as an act done whilst suffering from head injury or whilstsleepwalking”.5 In R v Hennessey (1989)6, it was held that automatism resultingfrom a state of hyperglycaemia which can occur when diabetic patient is notcontrolled by insulin. In this case the defendant claimed that he didn’t injecthimself with insulin and that caused him to suffer from hyperglycaemia isregarded as caused by the “disease” itself, well known as an internal factorand it falls within the M’Naghten rules as there were not foreign substances. M’Naghten rule where he is ignorantof the nature, quality and doesn’t have control of his act. The defendant didnot have realise what he was actually doing and what could be results of hisactions or recklessness would damage other people.

In R v Codere (1916)7 thedefendant was convicted of murder though, if at the time of the killing he orshe knew that it was illegal to kill someone so therefore this doesn’t fallunder the M’Naghten. If the defendant does not know if that his act is ethicallywrong following the normal standard adopted by reasonable men or doesn’trealise that his actions were legally and cannot say that he doesn’t know ifwhat he or she is right or wrong as an excuse.8 Next,as stated R v Quick (1973),9 the externalfactor was insulin which was present and it caused defendant to be in anunconscious state to commit the crime. Therefore, the defendant can bringautomatism as defence. This judgement was also supported in Rv Bingham (1991).

10  There are clear distinctive differences between the defence ofinsanity and automatism after taking into account of the presence and absenceof a foreign substances which leads to the conclusion where hyper-glycaemia isplaced under the insanity defence and whereas hypo-glycaemia under automatismdefence. In Hennessy 11Lawton LJ dictated that a diabetic patient who failed to inject himself withinsulin despite knowing his illness might be granted a verdict of ‘not guiltyby the reasons of insanity’ this is in order to protect the public to a certainextent. However, in Quick12the defendant who injected himself with insulin and did not eat properly can beacquitted fully without a defence. The condition to useinsanity and automatism as the defences differ. Insanity is a defence to alloffences as provided according to the M’Naghten Rules. The rules states where thedefendant should prove at the balance of probabilities that he or she was notsane at the time the crime was committed which comes up from a disease of themind he or she can be criminally held responsible for the misconduct if provedotherwise.13 Firstly,criteria for insanity is that the defendant reasoning power must be deprived.

14 InRv Clarke (1972)15  the court held that short durations ofabsent-mindedness or confusion while committing a crime fell far short of amountingto a defect of reason.16 The second requirement isthat the defendant to suffer from a disease of mind17however there are different input regarding definition. In R v Sullivan,18 thedefendant kicked and injured a man during a minor epileptic fit and committedan offence under Section 1819and Section2020 of the OffencesAgainst the Person Act 1861(OAPA 1861). The House of Lords held thatepilepsy was a disease of the mind as the defendant’s mental abilities wereimpaired and he was unable to make judgements on his action to the extent ofcausing a defect of reason and he is unable to comprehend if his actions areright or wrong. In R v Kemp (1957)21Devlin J ruled that ‘the law is not concerned with the brain but with the mind,in the sense that “mind” is ordinarily used, the mental faculties ofreason, memory and understanding.’ The jury returned with a verdict of guiltybut insane. In Bratty v Attorney General forNorthern Ireland (1963)22states that any mental disorder manifested itself in violence can repeat again.

While in R v Burgess (1991),23  it was in percuriam that a mental disorder that is violent can happen again and canestablish as another element to be considered as a disease of the mind.24Whenthe defendant does not that his act was wrong, this can be another componentfor insanity.25 In Rv Windle (1952)26  Lord Goddard CJ stated that, it cannot bechallenged if the defendant knew what he was doing was against the law and whenhe realized the punishment for murder. Total loss of voluntarycontrol is the main condition to sustain automatism defence which completedefence.

In Attorney-General’s (AG) Reference (1992),27the defendant indicated he was “driving without awareness” due to the”repetitive visual stimulus” exposition. The defendant was acquitted and theCourt of Appeal held that the state of “driving without awareness” cannot beused as a defence of automatism. Later on, medical evidence is required toraise a defence of non-insane automatism. In Hill v Baxter (1958)28 LordGoddard expressed that if a defendant raised a defence of automatism, it is seldomthat he would succeed without adequate medical evidence at the time of thecrime was committed that he was unconscious of what he was doing.

Insanity is stated to bethe one exception to the common law rule that the burden of proof of theaccused wrongdoing falls on the prosecution.29Accordingly, the burden of proof for the defence for insanity is balance ofprobabilities however for the defence of automatism the burden of proof fallson the prosecution with standard of proof is beyond reasonable doubts.30 Thedefences of automatism is a not a defence that leads the defendant to a full acquittal.In automatism is the defendant is unable to prove automatism as a defence hecan be charged for the offence that was committed. Under the Section24(1)(2) of the Domestic Violence, Crime and Victims Act 200431 thisact states if an accused succeeded of found not guilty by the reasons ofinsanity, at the discretion of the judge he or she can be grantedguardianship  or a hospital order or anabsolute discharge from the offence. In brief, it is identifiedclearly in the law and it guides the judges on deciding the case outcome.Therefore, mental defences of insane automatism and non-insane automatism arediffer in a lot of aspect and it is necessary to have them as separate defencesmental defences as the requirement to prove it is very diverse.

The differencesbetween insanity and automatism is significant that both the defence have to beseparated.1 David Ormerod, Smith and Hogan’s Criminal Law (13th edn, OxfordUniversity Press 2011)2 https://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/ (Accessed on 20th December)3 Claire de Than & others in Criminal Law (4th ednOxford University Press 2013) pg 2424 Bratty v Attorney General for N Ireland 1963 A.

C. 3865 https://webstroke.co.uk/law/cases/bratty-v-a-g-for-northern-ireland-1963 (accessed on 23rd December2017)6 R v Hennessy 19891 WLR 2877 R v Codere 1916 12 Cr.

App. R. 218 http://www.bitsoflaw.org/criminal/defences/study-note/a-level/insanity-criteria (accessed on 19th December 2017)9  R v Quick 1973 QB 91010 R v Bingham1991 Crim. L.

R 433 CA (Criminal Division)11 Ibid 12 R v Quick 1973 QB 91013 J. Martin & Others in Unlocking Criminal Law (4thedn Routledge 2013) pg 26414 RichardCard and Jill Molloy, Card, Cross & Jones Criminal Law (20thedn, Oxford University Press 2012)15 R v Clarke 1972 1 All ER 219, CA16 http://www.bailii.org/ew/cases/EWCA/Crim/1971/5.html  (accessed on 18th January 2018)17 R vM’Naughten 1843 10 CI; 8 ER 71818 R v Sullivan 1984 AC 156.19 http://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/18(accessed on 7th January 2018)20 http://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/20( accessed on 7th January 2018) 21 R v Kemp 1957 1 QB 39922 Bratty v Attorney General for Northern Ireland 1963 AC 38623 R v Burgess1991 2 WLR 1206 24 Richard Card and Jill Molloy, Card, Cross & Jones Criminal Law(20th edn, Oxford University Press 2012)25 R v M’Naughten 1843 10 CI&F200; 8 ER 71826 R v Windle1952 2 QB 82627 Attorney-General’s Reference 1993 3 WLR 98228 Hill vBaxter 1958 1 QB 27729 Woolmingtonv DPP 1935 AC 46230 https://www.law.cornell.edu/wex/burden_of_proof  (accessed on16th January 2018)31 http://www.legislation.gov.uk/ukpga/2004/28/section/24(accessed on 19th January 2018)