Teaching notes for Insanity & Automatism G153 Law A2 Criminal OCR

1. Starter:
What’s the word?
Insanity
Automatism
P
d
All of you should be able to work out the
words or phrases
Most of you should be able to work out
the connection
Some of you should be able to explain
which is the odd one out!
Diminished responsibility

2. Insanity & Automatism
MAH 2014
G153
General Defences (2)

3. To get an idea of the scope of the defence:
How does the law work in practice?
1. What was the verdict for Mr Lowe and what type of
‘punishment’ did he receive?
2. What do we mean by automatism?
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?

4. R v Hardie 1984
D’s girlfriend was breaking up with him, and he was
distressed over it. His girlfriend gave him some of her
valium tablets to calm him down,
However, the tablets had a rather opposite effect,
resulting in him setting fire to a wardrobe.
Insanity or automatism?
Successful or not?
R v Thomas 2009
D had suffered from sleepwalking all his life. He had a
nightmare that youths broke into their caravan and he
fought back. He woke up to find that he had killed his
wife.
He had stopped taking anti-depressants and other
drugs before the holiday. .
Insanity or automatism?
Successful or not?
Applying your understanding (AO2)
R v Whoolley 1997
D was a lorry driver who, when 60 feet away from the
slow moving car in front began, without warning, to
sneeze. The sneezing fit consisted of approximately
four to five sneezes and lasted a couple of seconds.
As a result he crshed into the car, causing a seven car
pile up and seriously injuring some of the drivers.
Insanity or automatism?
Successful or not?
R v Lipman 1970
D had taken LSD and was dreaming that he was
fighting with snakes.
He awoke to find that he had killed his girlfriend by
cramming eight inches of sheet down her throat.
Insanity or automatism?
Successful or not?
All of you should be able to decide whether you would advise D to argue insanity or automatism as a defence.
Most of you will be able to explain why, with reference to the differences between the two defences
Some of you will be able to consider whether you think they would be successful in arguing it or not and why.

5. Defence One:
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.

6. What’s the outcome of a successful plea?
Not Guilty by Reason of Insanity
Doesn’t mean go free!
What about murder?
Punishment or
treatment?
Recent disposal
reforms
Are we talking about a lot
of defendants?

7. Starter:
What’s the word or phrase?
Men-tall Con-dish-on deaf-fences (mental condition defences)
All of you should be able to crack the code!
Most of you should be able to explain what is included
Some of you should be able to identify one issue with this area which we looked at last lesson!
Challenge:
Write up your completed starter as a brief
paragraph with at least one case!

8. Scope of the Defence
Strict Liability
DPP v Harper 1997
Who argues it?
D, using medical evidence!
...but be careful if you bring up any
other mental condition defence...
Thinking…
in your purple books, pick at least one of the questions below, and
produce a reasoned answer to it, using at least one statutory or
common law reference.
1. As a lawyer, why might you encourage your client to plead using
one of the other mental condition defences?
2. As a client, why might you not want to plead NGRI, even if you
are suffering from a mental disorder?
3. Finally… is the verdict right? Some people argue that it should be
‘guilty but insane’ and others that it should simply be ‘not guilty’.
What do you think? Why?

9. Element One:
Defect of Reason
Clarke 1972
D cannot be capable of reasoning, if
he gives in to an irresistible
impulse... that is not sufficient.
Remember Mr Byrne?
Why does D fail to successfully
argue insanity? Should he?
So, is mere absentmindedness
enough for a defect of reason? Why?

10. Element Two:
Disease of the Mind
Kemp
The key problem here is the word
mind.
If it was brain...
this whole area would be a lot easier!
CA upheld the finding, with Devlin J
saying that a disease of the mind is
anything which:
“affects the ordinary faculties of
reason memory and
understanding.”
So, the term ‘Mind’ is not limited to
brain, but includes things, both
temporary and not, which cause defect
of reason.

11. 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?

12. Plenary:
Complete the triangle for feedback

13. Check you got the essentials...
Complete the passage below, using what you have learnt so far about insanity.
Can you name the key cases for
each of the areas of insanity we
have already looked at?
Insanity is a which can be used in either court. If successfully argued it results
in the of not guilty by reason of insanity. This allows the
judge to make one of three disposals, depending on the circumstances of the case. Either a
order, a order or an absolute discharge. The only exception is the crime
of which must still have a mandatory hospital order attached, if he meets the
detention criteria.
The defence originates from the case of , where the House of Lords stated that to
be insane D had to be suffering from a defect of reason, caused by a disease of the mind, such
that he does not know the and of what he is doing,
or that it is . This is an old test, which puts the burden of proof on .
The courts have interpreted ‘defect of reason’ as a complete absence of reason. This means that
those who give in to an ‘irresistible impulse’ would not be covered by the defence. The courts
have, however, taken a much wider approach to the meaning of disease of the mind, holding that
it includes anything that affects the ‘ ’, and so including a range of
physical, treatable diseases such as arteriosclerosis and .
Insanity is a general defence which can be used in either court. If successfully argued it results in
the special verdict of not guilty by reason of insanity. This allows the judge to make one of three
disposals, depending on the circumstances of the case. Either a hospital order, a supervision order
or an absolute discharge. The only exception is the crime of murder which must still have a
mandatory hospital order attached, if he meets the detention criteria.
The defence originates from the case of M’Naughten, where the House of Lords stated that to be
insane D had to be suffering from a defect of reason, caused by a disease of the mind, such that
either he does not know the nature and quality of what he is doing, or that it is wrong. This is an
old test, which puts the burden of proof on D.
The courts have interpreted ‘defect of reason’ as a complete absence of reason. This means that
those who give in to an ‘irresistible impulse’ would not be covered by the defence. The courts
have, however, taken a much wider approach to the meaning of disease of the mind, holding that
it includes anything that affects the ‘ordinary faculties of reason, memory and understanding’, and
so including a range of physical, treatable diseases such as arteriosclerosis and epilepsy.

14. Other conditions?
R v Hennessey R v Quick
D was seen getting into a stolen car
and crashed it. D had no memory as he
had taken no insulin for 3 days & was
hyperglycemic
D was charged with TWOC &
dangerous driving.
Same condition, different
outcome?
Thinking...
What problem[s] can you see arising
from these cases?
Aim to include at least one
case in your reasoning.

15. Sleepwalking:
A Particular Problem for the Courts
Applying the law to murder...
Lowe
Classic approach: Burgess
What implication does
this have for the
general population?
Is the verdict
appropriate for the
defendants?
Coping with an absolute rule:
Thomas

16. What about for crimes other than murder?
This is where it gets a little tricky.
Bilton
Why was non-insane automatism allowed to
go to the jury?
 Do you agree with the outcome of the case?
Why/why not?
This approach was confirmed in...
Ecott

17. Do other countries take the same approach?
Parks
Luedecke
Student Thinking:
“The courts current response to the problem of sleepwalking is confused and unclear”
True?

18. Element Three:
Nature and Quality
Thinking & applying the law…
You are paranoid and convinced that Miss Hart has been
taken over by and infected by the devil. You have tried
talking to me and it doesn’t work. You know that if you
leave it, my stomach and internal organs will slowly be
eaten away. To save me, you decide to cut me open
knowing that I might die.
Do you have a defence of insanity?
This quite restrictive…
D is in a state of impaired consciousness or
If they were conscious, D doesn’t understand or know what they are doing
…in other words, it refers to the physical nature of the offence.
Why does Mr Kemp fall under this branch?

19. Element Four:
It was wrong
Windle 1952
“Acting contrary to...
The law of the land.”
Johnson 2007
Moral? Legal?
Codere 1916
wrong “according to the ordinary
reasonable standard adopted by
the reasonable man”
How do we judge wrongness?

20. Apply the law:
Attorney General’s Reference No.3 of 1998
D broke into a farmhouse waving a
snooker cue. He was charged with
aggravated burglary and gave
evidence to the effect that he had
gone to the house to save the
occupier. The defendant believed that
he was Jesus Christ, surrounded by
evil and danger, and he was looking
for a house with a light on because
that would be a safe house where he
would be protected from evil.
Does he pass the
test?

21. Are the mad laws bad?
Insanity is
not a term
used by
psychiatrists
64% of males in
prison have a
personality
disorder
Numbers pleading NGRI:
1988 – 4 pleadings
1992 – 6 pleadings
2001 – 15 pleadings
Encompasses
physical, treatable
diseases.
Should juries really be making
medical judgments?
Really only provides a defence to
the fully delusional or blackout D
Johnson 2007, makes it
clear that the
M’Naughten test has
been consistently applied
by the courts.
By trial,
many D are
‘sane’ in
appearance
Reforms on disposals have opened up
the plea
Provides
protection
for the
public, and a
way to treat
D
Evidence is that not all
psychiatrists can apply the
test – ‘wrong’ as moral.
Inconsistent with
the civil law and
mental disorder
The other mental condition defences of diminished
responsibility and automatism provide further protection
E… clearly explain your
point
C… link to a case and
develop the argument
further
A… can you consider
the alternative or
counter point of view?

22. What’s the case?
All of you should be able to tell me the name and/or facts of these cases
Most of you should be able to identify the legal importance of the case.
Some of you will be able to explain which is the odd one out?

23. General Defence Two:
Non- Insane Automatism
Unlike insane automatism, if
successfully pleaded, non-insane
automatism results on a complete
acquittal.
This is because in addition to no mens rea,
it is argued that the defendant is not
acting voluntarily, and so has neither
element essential to criminal liability.

24. Enough Faffing…
What is a non-insane automatistic action?
 Looking at the definition, what
evidence can you find to justify why
automatism is a defence?
 Can you spot the troublesome obiter?
Elsewhere in Bratty, he talks about
how we tell the difference between
insanity and automatism.
Can you remember the two ways?
Bratty v Attorney General for
Northern Ireland
“act done by muscles without
any control by the mind, such as
a spasm, a reflex action or a
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”

25. Now apply it:
Charlson
D hit his 10 year old son on the head with a
hammer and threw him out of the window
and into a river. There was evidence that D
had suffered a tumour which could have
caused the sudden attack.
Is this a case of insanity or non-insane
automatism?
Challenge: Denning overruled the original finding
in this case. What was it, and how do you think D
successfully argued it?

26. Other Automatistic rules…
• Must be some medical evidence, a
‘mere assertion’ is not enough
• A swarm of bees or sneeze could
constitute an involuntary action.
Confirmed in Whoolley 1997
• PTSD may be enough as long as it
manifests itself physically.
• But the ratio of Narborough 2006
seems to have limited this.
Hill v Baxter T

27. What doesn’t automatism cover?
R v Rabey
“ the ordinary
stresses and
disappointments of
life.”

28. Is a Partial Loss of Self-Control Enough?
Attorney-General’s Reference (No.2 of 1992) 1993
1. 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?
6. Which part of the Burgess test did the facts
fail?
7. The report mentions four cases which are
relevant. Complete the grid to show your
understanding!
Case Automatism? Insanity?
Hennessey
Quick
Sullivan
Burgess

29. Self induced automatism?
R v Bailey
This is where D does or takes something likely to bring about the automatistic state: can he still
rely on the defence?
Well, it depends what type of offence it is.
Basic:
Crime requires recklessness as minimum
mens rea.
Specific:
Crime can only be completed if D intends
to do the offence
R v Quick

30. R v Lipman R v Hardie
Can you apply your learning to these?
All of you should be able to identify whether they can advance automatism or not.
Most of you should be able to justify your conclusions using a case comment.
Some of you will be able to explain how the approach of the courts here overlaps with the
approach elsewhere in the law.

31. Can you find the right ‘pair’?
Student Task:
In your hand out, you have the first half of each of these sentences...
Can you match them to the end and complete the summary?
Challenge: heading for the top grades? Can you evaluate your completed statement by linking to a
further case?

32. Scary triangles!:
Match the little triangles to make the big ones!

33. Have you got the essential AO1?
Mental condition
defences
Insanityautomatism
Means? Means?
Result?
Result?

34. January 2013
Section C:

37. Question 7
This was the least popular Section C question and, whilst there were some pleasing
demonstrations of high level knowledge and application skills, a good number of
responses were much less confident.
In Statement A there was a need to focus on Sarah’s ability to retain some control
whilst driving, even if not at a conscious level.
In Statement B there was a need to consider the need for an involuntary act which
could be demonstrated by the reflex action of swerving and the role of the spider as an
external factor.
Statement C relied on acknowledging that voluntary intoxication would negative a
defence of automatism.
In Statement D there was a need to explore the basic principles of insanity, using
accurate terminology rather than that to be found in the defence of diminished
responsibility.

38. Plenary
How confident are you?
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.
I know what
this is.
I can
describe this
I can evaluate
or discuss this
Any areas you have put nothing for...
Were you missing?
Did you ask?
Have you researched?

39. How does the image link to automatism?

40. Putting the assessment objectives together…
“The law relating to the defence of insanity is outdated and unsatisfactory. Reform is long overdue in the
interests of both justice and common sense.”
Evaluate the accuracy of this statement. [50]
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 (one colour)
 Weakness (one colour)
There are green pens on the front desk to
help you.

41. What did you mark it as?
AO1 AO2
LEVEL 5 Wide-ranging, accurate, detailed
knowledge with a clear and confident
understanding of the relevant concepts
and principles. Where appropriate,
candidates will be able to elaborate with
wide citation of relevant statutes and case
law
21-
25
Ability to identify correctly the relevant and
important points of criticism, showing good
understanding of current debate and proposals
for reform, or to identify all of the relevant
points of law in issue. A high level of ability to
develop arguments, and reach a cogent, logical
and well-informed conclusion.
17-20
LEVEL 4 Good, well-developed knowledge
with a clear understanding of the relevant
concepts and principles. Where
appropriate, candidates will be able to
elaborate by good citation to relevant
statutes and case-law.
16-
20
Ability to identify and analyse issues central to
the question, showing some understanding of
current debate and proposals for reform, or to
identify most of the relevant points of law in
issue. Ability to develop clear arguments and
reach a sensible and informed conclusion.
13-16
LEVEL 3 Adequate knowledge showing
reasonable understanding of the relevant
concepts and principles. Where
appropriate, candidates will be able to
elaborate with some citation of relevant
statutes and case-law.
11-
15
Ability to analyse most of the more obvious
points central to the question or to identify the
main points of law in issue. Ability to develop
arguments and reach a conclusion.
9-12
LEVEL 2Limited knowledge showing
general understanding of the relevant
concepts and principles. There will be
some elaboration of the principles, and
where appropriate with limited reference
to relevant statutes and case-law.
6-10
Ability to explain some of the more obvious
points central to the question or to identify
some of the points of law in issue. A limited
ability to produce arguments based on their
material but without a clear focus or
conclusion.
5-8
LEVEL 1 Very limited knowledge of the
basic concepts and principles. There will
be limited points of detail, but accurate
citation of relevant statutes and case-law
will not be expected.
1-5
Ability to explain at least one of the simpler
points central to the question or to identify at
least one of the points of law in issue. The
approach may be uncritical and/or unselective.
1-4
It actually received:
AO1 = 18
AO2 = 16
AO3 = 4
Total: 38 (B)

42. Plenary:
Can you sort the mental condition defences out?
You have the mixed up sections
for the three mental condition
defences (automatism, insanity
and diminished responsibility).
All you need to do is sort them
out into the correct defence.
For each you need:
 Cause
 Example of what might be
included
 Outcome
 Label
 Scenario
 Two case examples