Zoom-CRIMINAL Law-UoL

Review Chapter 10

Part 1: Defences- Failure of Proof

10.1 The two types of defences

Illustration 10.1
D, witnessed by a crowd of onlookers, aims his gun at V and shoots him dead.
To gain a conviction for murder, the prosecution bears the burden of proving:
that D’s act caused V’s death
that D’s shooting of the gun was actuated by an intention to kill V or cause him serious injury.

As you may appreciate, this should not be too difficult, given that there are:
witnesses who saw D aim the gun and pull the trigger
witnesses who saw V fall down immediately after the gun was fired
doctors who will confirm that V’s death was caused by the blood loss occasioned by the bullet entering V’s body.

10.2 Involuntary conduct

Activity 10.1
Learn Lord Denning’s statement by heart: it is a good summary of the law.
-The criminal law has traditionally called both instances ‘automatism’. In the words of Lord Denning in Bratty v A-G of
Northern Ireland [1963] AC 386:
(memory work)

No act is punishable if it is done involuntarily: and an involuntary act in this context – some people nowadays prefer to
speak of it as ‘automatism’ – means an act which is done by the muscles without any control by the mind…
-yes, good law b/c it would be unfair to convict one when deemed involuntary or unwilling/unintentional
-punishing both voluntary and involuntary will create chaos

In this chapter we shall deal with the two forms of automatism separately, since certain biological or mental conditions which trigger
involuntary behaviour may lead to distinct case outcomes.

Activity 10.2
Read Wilson, Section 9.8.C ‘Conditions of automatism’ and answer the following questions.
a. Why did Quick change his plea to guilty?
Quick [1973] QB 910,
-diabetic, use insulin, take alcohol, no food= hypoglycaemia -- starts with the external physical
-irritated, aggravated, and attacked patient- escalades to emotional
-this is a case of “involuntary physical automatism” [unintentional body dysfunction” (but first judge disagreed)]
=assault charge (review chapt 9-- assault is acting the threat and V feels the threat a/r; D knows V feels threat m/r. common assault
umbrella; hitting/beating: battery= physical force, direct or indirect, immediate= common assault umbrella call "simple assault" or
'assault by beating')== assault occasioning actual bodily harm s47 OAPA 1861
-1st Judge: D under mind illness loss of self control so D is insane; diminished responsibility
-D said: he is sane; had a/r because of diabetic automatism but he had no m/r because it was unintended criminal mind (a sane mind but
had physical illness)
-plead guilty to assault occasioning actual bodily harm s47 OAPA 1861 to avoid "insanity special treatment"
-CoA
Lawton LJ described
automatism as ‘a malfunctioning of the mind of transitory effect,
caused by the application to the body of some external factor, such
as violence, drugs, including anaesthetics, alcohol and hypnotic
influences’
-D's defence accepted, conviction squashed b/c it was the external trigger that caused (what caused not who caused) his mind to
malfunction lead to his physical body to malfunction - ie: the use of insulin= upheld automatism defence
Quick, the defendant had become violent in the course
of a hypoglycaemic episode induced by a combination of diabetes (yes
automatism defence)
and his own failure (not automatism defence) to maintain a satisfactory
blood sugar level.
Lawton LJ made it clear that such a failure was capable of
disentitling the defendant from relying on automatism. If the jury had
been so directed, a conviction would have been proper=
= note: self-induced cause is not a defence of automatism
b. Make a note all of the examples of conditions which have been successfully used to support a defence of automatism.
Physical automatism:
-mind malfunction lead physical body malfunction; external issues cause physical body malfunction; external factors contribute to
physical body automatically uncontrollably faults in something leading to a criminal offence/liability
-car brake failing; no sugar triggers diabetic attack; heart attack while driving; thunder strike hit in the head then fall on V
-stumbles, sneezes, or is subject to a spasm or reflex action
-Burns v Bidder [1967] ; Mitchell

Mental automatism:
-emotional, subconscious, unconconscious malfunction cause by internal illness of the mental state of mind
-suffering concussion,
diabetic hypoglycaemia, post-traumatic stress syndrome, epileptic
fit or the side effects of medically prescribed drugs
-epilepsy and
sleepwalking are usually treated in common law jurisdictions as
examples of insanity for the purpose of criminal responsibility.
Although these are cases of automatism, law designates these
conditions as automatism resulting from insanity, or simply insane
automatism
-The remaining conditions such as concussion or
hypnosis are capable of providing evidential support for a defence of
simple (non-insane) automatism, entitling an outright acquittal
-stab and kill someone while sleepwalking; mind illness of insanity; hallucination; schizophrenia -- a “closed mind”
-Bratty; McNaghten

c. Why was the defendant in T (1990) able to use her condition to support her claim of automatism but not the defendant in
Rabey (1978)?
T (1990)
-a person subjected to a previous rape event
-physical rape of long go transferred now into mental/psychiatric trauma
-automatism: when the mind dissociate from the body; cannot guide/control the body to perform what is reasonable; unaware of self and
others and surrounding circumstances
-here the female robbed and stabbed her victim with a penknife
-a/r- yes
-m/r- yes
-but not liable b/c prior trauma of rape and internal anxiety, depression of
external causes triggers that long pending trauma; makes D delusional;
stabbed in a dream-like state; unable to comprehend reality or comply to
reasonable rules
-she had COMPLETE 100% ABSENT CONSCIOUSNESS
-defence base: involuntary mental automatism
-though rape is not a required significant external trigger; but her condition was a recognized mental medical condition from that rape
called "post-traumatic stress disorder"
-not significant trigger but is a recognized condition=non- insane automatism or another name is simple automatism; dissociation of
mind with body; intrinsic mental fragility

-if the mental ‘delusion causes the defendant to think a person is about to
rape her, she will have a
defence if she kills in self-defence, since the nature and quality of
her act – an unjustified killing – ...– a killing in
self-defence.’

-no conviction; defence approved

(uh no, I’m not convinced of this defence; even Wilson said this defence is
stretching it, but it is what it is)
Rabey
-D harmed gf after breakup; a natural response not a significant, special response; it's common;
-not a dissociation of the mind from body because D chose to act
-D not 100% dissociate his mind from his body (maybe partial but not 100%)
-therefore D had enough self-awareness to know the difference of wrong and right and chose to act out the crime anyway
-defence for any automatism, insane or non-insane automatism must be a) involuntary; b) 100% unaware
-defence denied
d. Search the term ‘confusional arousal’ on the internet. Can you think of an example of how experiencing this condition might
cause someone to perform a prohibited act?

Eg:

Confusional arousal:

-something of a trigger that causes one to wake up in a confused dazed state; appear to behave strange and usual after awakening

-the thin border between waking and and sleeping; body moves but mind is still not fully awake yet

Generally-Sleepwalking and killing someone during that sleepwalking trance

-but difficult to know if he/she kills during the initial duration of confusional arousal or during sleepwalking

-kill may be b/c thought that V tries to kill him/her; D feels threat so had to act in “self-defence”

-2 different mental states

R v Lowe

R v Thomas

10.3 Insanity
Activity 10.3
Learn the M’Naghten rules by heart: they represent the law and must therefore be known.

i) unaware of the nature and impact/quality of the act (no self-awareness)

-defect of reason
-defect of reason from mind disease

ii) not understand the legal wrong of the act (that it’s illegal)

Activity 10.4
Read Wilson, Section 9.9.A.3 ‘Disease of the mind’ and make a note of the three different tests of ‘disease of the mind’.
a. Do you prefer the Devlin test or one of the other two?
i) unaware of the nature and impact/quality of the act (no self-awareness)
-defect of reason
-defect of reason from mind disease= mind not the brain that court interested in

ii) not understand the legal wrong of the act (that it’s illegal)

b. Why have the courts ignored medical definitions in deciding the meaning of a disease of the mind?
-base on legal policy than health records-- to protect public interest from violent acts of ill minds
-if there’s a dangerous potential of recurring conditions then one is hospitalized not just a simple acquittal
-defect of reason due to mind illness will continue whether D does harmful things or not
-harm result from these Ds are high and risk of harm high-- can’t risk
-therefore, brain can function but mind unable to reason or understand or aware== can be treated or cannot, can be temporary or
permanent== so need to base on policy when dealing with disease of mind to weigh liability, decrease chance of harming society and get
help for these ppl = medical definitions cannot save the public interest
c. Learn the Devlin test by heart: it is the current law governing the meaning and scope of disease of the mind.

Activity 10.5
Read Wilson, Section 9.9.A.3 ‘Disease of the mind’ and note down as many difficulties associated with the ‘internal/external
cause’ test of insanity/automatism as you can find. Concentrate particularly on the discussions relating to diabetes and
sleepwalking. When you have done this, consider whether Hennessy would have been in a stronger position to claim automatism
if he had forgotten or failed to take his insulin due to:

-internal and external causes is confusing and inconsistent; it is unreliable b/c each view it differently; not realistic
-one internal cause here can be another’s external cause
-the level of damage of one over the other is debatable
a. the sudden death of his child
-external factor- common, can happen to anyone, nothing dire - still within one’s control to take insulin; freedom to choose is still there
and D knows/aware of what is happening
b. a fire at his home
-if he lost his insulin in the fire, then that’s also common cause; a material/technical cause -- he can get more from his doctor; not having
it b/c of fire may cause his side effects but internally he is still fully capable to reason and know a fire is a fire, not bubble gum; he is
aware

c. an unlawful attack on his person

-
d. theft of the insulin.

Activity 10.6
Read Wilson, Sections 9.8.A ‘Automatism and crimes of mens rea’, B ‘Automatism, negligence and strict liability’ and C
‘Conditions of automatism’ again.
How might a person be able to avoid liability for a strict liability crime or crime of negligence by pleading involuntary
intoxication?

Hint: Think of a strict liability driving offence and a possible neurological outcome of involuntary intoxication which prevents
that offence from taking place
 Activity 10.7
Read Wilson, Section 9.11 A and B and answer the following questions.
a. Do you agree with the decision in Kingston? Now consider the next question.
b. Adam, a placid man, does not drink alcohol. Cain is a practical joker. He secretly adds vodka to Adam’s orange juice at a
party to see what Adam is like when drunk. Adam, who is unused to alcohol, feels strange and starts to act in a silly fashion. Cain
taunts him for being drunk. Adam is indignant, loses his temper and punches Cain. Is Adam guilty of assaulting Cain? Should he
be?

Activity 10.8
Go to Chapter 6 of this module guide. Insert Gallagher into the text at an appropriate place to give another exception, along with
the supposed corpse cases, to the rule that mens rea and actus reus must coincide in point of time.

Activity 10.9
Learn the Majewski test by heart: it tells you most of what you need to know about the difference between voluntary and
involuntary intoxication. The bit it does not tell you is dealt with below in relation to Hardie.
Involuntary intoxication may therefore result from:
an intoxicant taken under medical supervision
an intoxicant secretly administered to A without their knowledge (e.g. Kingston)
an intoxicant voluntarily taken by A, who mistakes its properties. An example is where A takes what they think is a painkiller when in
fact it is an intoxicant.

Activity 10.10
Read Wilson, Section 9.11.A ‘Intoxication: its effect on criminal liability’ and answer the following question.
If Hardie, instead of setting fire to the wardrobe, had left the house and, driving home, had fallen asleep at the wheel, would this
have been a case of voluntary or involuntary intoxication?

10.5 Crimes of basic intent and specific intent contrasted

Activity 10.11
Read Wilson, Section 9.11.C.2 ‘The rationale for restricting the exculpatory scope of voluntary intoxication’ and answer the
following questions.
a. What is the rationale for not allowing evidence of intoxication to be used to negate mens rea in crimes of basic intent such as
assault? Do you agree with it?

b. Which crimes are crimes of specific intent?

c. Which crimes are crimes of basic intent?

d. Most crimes of specific intent have a basic intent crime of lesser gravity which can still be charged in cases of voluntary
 intoxication. What are the basic intent counterparts of murder, and s.18 of the Offences Against the Person Act 1861?
e. Give an example of a specific intent crime which has no basic intent counterpart.

Illustration 10.2
Adam goes to sleep very intoxicated. He wakes up, still drunk, to see Eve standing over him with what appears to be a knife in
her hand. It is in fact a cigarette. Adam throws a knife at Eve which kills her.
If Adam relies on self-defence, he cannot use his intoxication to substantiate his claim that he believed he was being attacked with
a knife and so was defending himself. The jury will be told to ignore Adam’s intoxication and consider only whether he would
have made the mistake if sober.

If, however, Adam claims that he only intended to frighten Eve away, he can use his intoxication to explain why, although he
threw a knife at her, he had no lethal intent.

Activity 10.12
Now read Wilson, Section 9.11.D ‘Intoxicated mistakes’ and answer the following question.
Does it make sense that intoxicated beliefs may be taken into account for the purpose of (negating) mens rea but not for the
purpose of raising a defence?

The defence of duress, similarly, cannot be relied upon if D, because of intoxication, mistakenly believes they are being coerced
into committing a crime (Graham [1982] 1 WLR 294

page 130 University of London Advice on answering the question

There are a number of possible offences committed here. In each case begin with the offence to be charged.
Alison: method
Identify harm/crime = criminal damage
1. Define the crime and identify the elements.
2. Then consider what elements are at issue.
3. Here there is only one issue. Has Alison mens rea? Her problem is that if we don’t take into account her drunken state, the jury will
inevitably conclude that she has, because everybody knows glasses don’t bounce: they break. If we do take intoxication into
account, she has a chance. How can Alison use the evidence to support her claim of lack of mens rea? By claiming that, due to her
intoxicated state, ‘I honestly did not think the glass would break’.
4. State the governing rules. If the intoxication is involuntary, Alison can use it. If it is voluntary she cannot, if criminal damage is a
basic intent crime.
5. Discuss whether criminal damage is a crime of specific or basic intent.
6. Discuss whether Alison’s is a case of voluntary or involuntary intoxication.
7. Conclude.

Bertha: method
Identify harm/crime = punch = assault
1. Define the crime and identify the elements.
2. Then consider what elements are at issue.
3. Again, the issue is whether Bertha lacks mens rea.
4. Only if she does lack mens rea can Bertha use evidence of intoxication to support her claim.
5. State the relevant rules. If the intoxication is voluntary it can be raised in evidence to negate mens rea for a crime of specific intent
but not for a crime of basic intent.
6. Discuss whether it is a crime of specific or basic intent.
7. Discuss whether it is voluntary or involuntary intoxication.
8. Conclude. Bertha will not be able to rely on intoxication with regard to the punch since i. she has the mens rea for assault, and
9. ii. even if she lacked the mens rea for assault, the intoxication is voluntary and assault is a basic intent crime.
10.
 Identify harm/crime = theft
1. Use same method as above.
2. Conclude. Bertha will be able to rely on her voluntary intoxication on the theft charge as she does not have the mens rea for theft
and theft is a specific intent crime.

Am I ready to move on?

Are you ready to move on to the next chapter? You are if – without referring to the module guide or
Wilson – you can answer the following questions.
1. State what automatism and insanity have in common.
-Automatism: involuntary body movement b/c mind dissociate with body; w/o control of mind and body
-Insanity: McN’aghten rule- both lack common body & mind
-mental condition
2. State how they differ.
-sentencing
*Automatism:- involuntary act of mind and body; mind dissociate with body; no self-govern ability
--Non-insane automatism: external, cause, bees, car maintenance, drug side effect, diabetes (insulin)
-R v T 1990
==intoxication: voluntary (reckless, not defence); involuntary
--Insane automatism: risk of hospitalization; but full acquittal; LJ Devlin is illness of mind, internal

3. State the test which differentiates insanity and automatism.

above
4. Decide whether the following conditions or events affecting mens rea are examples of insanity or
automatism. a. Post traumatic stress syndrome. -insane; internal disease of mind
5. b. Heart attack. -external= no m/r
6. c. Sleepwalking. -insanity, yes m/r
7. d. Depression. -disease of mind, disease of brain
8. e. Brain tumour. -disease of brain, no m/r
9. f. Diabetic hypoglycemia. - up& down, not accurate: no m/r
10. g. Diabetic hyperglycaemia. -up & down, not accurate: no m/r
11. h. Carbon monoxide poisoning. -outside, no m/r
12. i. Anaesthetic. -outside, no m/r
13. j. Hypnosis. -outside, no m/r
14.
15. Explain the relevance of intoxication to proof of mens rea and to the defence of automatism.
-note above; unless m/r form prior to any intoxication, then no defence
Kingston 1995

16. Explain the difference between basic and specific intent crimes.
-s18, s20
-basic: negligence, reckless 20-- theft, burglary, rape
-specific: murder 18- prove oblique m/r, cannot use duress defence

17. Explain what the relevance of ‘involuntary intoxication’ is to criminal liability.

-negates m/r-- note above

18. Explain why theft is an example of a specific intent crime.

-define a property belong to another
-m/r dishonest, deprive permanently
-specific: direct intent some case, situation