A has proved a persistent source as a defence

A defence of insanity is crucial to the criminal justice system.1
This enable the law to recognise the imposition of the criminal punish that
should be kept for those are mentally sane. Law Commission is currently waiting
for the response for Mental Capacity Act and the Deprivation
of Liberty Safeguards which aim to protect people who lack mental
capacity and cannot comprehend their actions, but who need to be deprived of
liberty so they can be given care and treatment in a hospital or care home.2

Automatism is that the
act is carried out by the defendant’s muscle and unconscious mind but they are
not, at that point of time under the control or path of his/her conscious mind
then he or she may plead not guilty as he or she body in not in their control
and may be acquitted.3
This is referred to as the defence of automatism and it can be divided into
insane automatism and non-automatism. Insane automatism is recognised as
insanity whereas non-insane automatism is known as automatism.

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The first condition for
insanity is that the accused’s act was caused by an internal factor and he
lacked mental capacity therefore is not suitable for trial on another hand
automatism is caused by an external factor but his conscious mind is
dissociated.  Insanity has proved a persistent
source as a defence and prior to 1991, it become very uncommon for the
defendant to plead it as a defence because, it is not a full acquittal even
though a successful plea will bring about a verdict of ‘not guilty by reason of
insanity’. In the case of Bratty v Attorney General for N Ireland
(1963)4 Lord
Denning stated that automatism simply means; “An act which is done by the
muscles without the control by the mind, such as a reflex action or a
convulsion; or an act done by a person who is not aware of what he or she is
doing, such as an act done whilst suffering from head injury or whilst

In R v Hennessey (1989)6, it was held that automatism resulting
from a state of hyperglycaemia which can occur when diabetic patient is not
controlled by insulin. In this case the defendant claimed that he didn’t inject
himself with insulin and that caused him to suffer from hyperglycaemia is
regarded as caused by the “disease” itself, well known as an internal factor
and it falls within the M’Naghten rules as there were not foreign substances. M’Naghten rule where he is ignorant
of the nature, quality and doesn’t have control of his act. The defendant did
not have realise what he was actually doing and what could be results of his
actions or recklessness would damage other people.

In R v Codere (1916)7 the
defendant was convicted of murder though, if at the time of the killing he or
she knew that it was illegal to kill someone so therefore this doesn’t fall
under the M’Naghten. If the defendant does not know if that his act is ethically
wrong following the normal standard adopted by reasonable men or doesn’t
realise that his actions were legally and cannot say that he doesn’t know if
what he or she is right or wrong as an excuse.8 Next,
as stated R v Quick (1973),9 the external
factor was insulin which was present and it caused defendant to be in an
unconscious state to commit the crime. Therefore, the defendant can bring
automatism as defence. This judgement was also supported in R
v Bingham (1991).10  

There are clear distinctive differences between the defence of
insanity and automatism after taking into account of the presence and absence
of a foreign substances which leads to the conclusion where hyper-glycaemia is
placed under the insanity defence and whereas hypo-glycaemia under automatism
defence. In Hennessy 11
Lawton LJ dictated that a diabetic patient who failed to inject himself with
insulin despite knowing his illness might be granted a verdict of ‘not guilty
by the reasons of insanity’ this is in order to protect the public to a certain
extent. However, in Quick12
the defendant who injected himself with insulin and did not eat properly can be
acquitted fully without a defence.

The condition to use
insanity and automatism as the defences differ. Insanity is a defence to all
offences as provided according to the M’Naghten Rules. The rules states where the
defendant should prove at the balance of probabilities that he or she was not
sane at the time the crime was committed which comes up from a disease of the
mind he or she can be criminally held responsible for the misconduct if proved
otherwise.13 Firstly,
criteria for insanity is that the defendant reasoning power must be deprived.14 In
v Clarke (1972)15  the court held that short durations of
absent-mindedness or confusion while committing a crime fell far short of amounting
to a defect of reason.16

The second requirement is
that the defendant to suffer from a disease of mind17
however there are different input regarding definition. In R v Sullivan,18 the
defendant kicked and injured a man during a minor epileptic fit and committed
an offence under Section 1819
and Section
2020 of the Offences
Against the Person Act 1861(OAPA 1861). The House of Lords held that
epilepsy was a disease of the mind as the defendant’s mental abilities were
impaired and he was unable to make judgements on his action to the extent of
causing a defect of reason and he is unable to comprehend if his actions are
right or wrong. In R v Kemp (1957)21
Devlin 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 of
reason, memory and understanding.’ The jury returned with a verdict of guilty
but insane.

In Bratty v Attorney General for
Northern Ireland (1963)22
states that any mental disorder manifested itself in violence can repeat again.
While in R v Burgess (1991),23  it was in per
curiam that a mental disorder that is violent can happen again and can
establish as another element to be considered as a disease of the mind.24When
the defendant does not that his act was wrong, this can be another component
for insanity.25 In R
v Windle (1952)26  Lord Goddard CJ stated that, it cannot be
challenged if the defendant knew what he was doing was against the law and when
he realized the punishment for murder.

Total loss of voluntary
control is the main condition to sustain automatism defence which complete
defence. In Attorney-General’s (AG) Reference (1992),27
the defendant indicated he was “driving without awareness” due to the
“repetitive visual stimulus” exposition. The defendant was acquitted and the
Court of Appeal held that the state of “driving without awareness” cannot be
used as a defence of automatism. Later on, medical evidence is required to
raise a defence of non-insane automatism. In Hill v Baxter (1958)28 Lord
Goddard expressed that if a defendant raised a defence of automatism, it is seldom
that he would succeed without adequate medical evidence at the time of the
crime was committed that he was unconscious of what he was doing.

Insanity is stated to be
the one exception to the common law rule that the burden of proof of the
accused wrongdoing falls on the prosecution.29
Accordingly, the burden of proof for the defence for insanity is balance of
probabilities however for the defence of automatism the burden of proof falls
on the prosecution with standard of proof is beyond reasonable doubts.30 The
defences 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 he
can be charged for the offence that was committed.

Under the Section
24(1)(2) of the Domestic Violence, Crime and Victims Act 200431 this
act states if an accused succeeded of found not guilty by the reasons of
insanity, at the discretion of the judge he or she can be granted
guardianship  or a hospital order or an
absolute discharge from the offence.

In brief, it is identified
clearly in the law and it guides the judges on deciding the case outcome.
Therefore, mental defences of insane automatism and non-insane automatism are
differ in a lot of aspect and it is necessary to have them as separate defences
mental defences as the requirement to prove it is very diverse. The differences
between insanity and automatism is significant that both the defence have to be

1 David Ormerod, Smith and Hogan’s Criminal Law (13th edn, Oxford
University 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 edn
Oxford University Press 2013) pg 242

4 Bratty v Attorney General for N Ireland 1963 A.C. 386

5 https://webstroke.co.uk/law/cases/bratty-v-a-g-for-northern-ireland-1963
 (accessed on 23rd December

6 R v Hennessy 19891 WLR 287

7 R v Codere 1916 12 Cr. App. R. 21

8 http://www.bitsoflaw.org/criminal/defences/study-note/a-level/insanity-criteria
 (accessed on 19th December 2017)

9  R v Quick 1973 QB 910

10 R v Bingham
1991 Crim. L.R 433 CA (Criminal Division)

11 Ibid

12 R v Quick 1973 QB 910

13 J. Martin & Others in Unlocking Criminal Law (4th
edn Routledge 2013) pg 264

14 Richard
Card and Jill Molloy, Card, Cross & Jones Criminal Law (20th
edn, Oxford University Press 2012)

15 R v Clarke 1972 1 All ER 219, CA

16 http://www.bailii.org/ew/cases/EWCA/Crim/1971/5.html  (accessed on 18th January 2018)

17 R v
M’Naughten 1843 10 CI; 8 ER 718

18 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 399

22 Bratty v Attorney General for Northern Ireland 1963 AC 386

23 R v Burgess
1991 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 718

26 R v Windle
1952 2 QB 826

27 Attorney-General’s Reference 1993 3 WLR 982

28 Hill v
Baxter 1958 1 QB 277

29 Woolmington
v DPP 1935 AC 462

30 https://www.law.cornell.edu/wex/burden_of_proof  (accessed on
16th January 2018)

31 http://www.legislation.gov.uk/ukpga/2004/28/section/24
(accessed on 19th January 2018)