Defences - Automatism Criminal Defences © The Law Bank Criminal Defences Self Defence/Prevention of Crime 1

Defences - Automatism Criminal Defences © The Law Bank Self Defence/Prevention of a Crime section 76 Criminal Justice and Immigration Act 2008 (note in particular effects of s9). Covers:Criminal Justice and Immigration Act 2008 Defence of self Defence of property Prevention of crime Be aware that there is a complete overlap between all 3

Defences - Automatism Criminal Defences © The Law Bank Defence of Self Reasonable force (RF) – 2 part test Subjective test: Dewar – asks the question: Did D have a genuine belief that force was necessary? (note why Harvey fell at this hurdle) Note the courts approach to perceived ‘revenge’ attacks – Hussain Objective test: Note Lord Morris in Palmer: Juries must use their common sense - DCannot be expected to weigh the nicety or exact measure of his response and provided it’s an instinctive reaction = RF

Defences - Automatism Criminal Defences © The Law Bank R v Palmer (Lord Morris) Where there has been an attack so that defence is reasonably necessary, it should be recognised that a person defending himself cannot weigh to a nicety the exact measure of necessary defensive action. If a jury is of the opinion that in a moment of unexpected anguish the person attacked did only what he honestly and reasonably thought was necessary, that should be regarded as most potent evidence that only reasonably defensive action was taken.

Defences - Automatism Criminal Defences © The Law Bank R v Martin (Lord Goff) ‘In judging whether the defendant had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time, when he was defending himself.’ These principles are now to be found in section 76(7) CJIA 2008 which provides that ‘a person … may not be able to weigh to a nicety the exact measure of any necessary action’ and ‘what the person honestly and instinctively thought was necessary = strong evidence that only reasonable action was taken’.

Defences - Automatism Criminal Defences © The Law Bank Proportionality? 76(6) CJIA 2008: ‘The degree of force … is not to be regarded as having been reasonable … if it was disproportionate …’ Hence D can act disproportionally - BUT If d went well beyond what was needed to defend himself from the force offered by his assailant, that is good evidence that the defendant acted unreasonably

Defences - Automatism Criminal Defences © The Law Bank Duty to retreat? R v Bird: No obligation to retreat from attack, But it is good evidence of reasonableness if a retreat is attempted before violence takes place In fact, D may take pre-emptive action to avert an attack. In R v Beckford: A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre- emptive strike (remember Steve Gerrard??)

Defences - Automatism Criminal Defences © The Law Bank Self Induced Cannot be used for the defence Bailey (1983) – failed to eat enough after taking insulin and hit victim on head with bar Specific Intent – can be a defence Basic intent – prosecution have to prove recklessness If drink or drugs cannot use automatism DPP v Majewski (1976) If he does not know actions likely to lead to such a state can use – Hardie (1984)

Defences - Automatism Criminal Defences © The Law Bank R v Quick (1973) 3 WLR 26 D, a nurse, assaulted a patient. He was a diabetic, had taken insulin and not eaten sufficient food. He drank whisky and rum and he could not remember the assault. He pleaded automatism. Principle – D was suffering from automatism, which is a mental abnormality caused by an external factor. He was not suffering from insanity caused by hypoglycaemia (low sugar in the blood) by taking insulin prescribed by his doctor. [Distinguished from hyperglycaemia high blood sugar occurring naturally, which would be insanity] Lawton LJ: 'a self-induced incapacity will not excuse... nor will one which could have been reasonably foreseen as a result of either doing or omitting to do something, for example, taking alcohol against medical advice after using certain prescribed drugs or failing to have regular meals while taking insulin.' Not Guilty

Defences - Automatism Criminal Defences © The Law Bank Broome v Perkins [1987] Crim LR 271 D in a hypoglycaemic state drove home very erratically from work, hitting another car at one point. Afterwards he could remember nothing about the journey, but seeing the damage to his car, reported himself to the police. Medical evidence suggested that it was possible for someone in his state to complete a familiar journey without being conscious of doing so, and that although his awareness of what was going on around him would be imperfect, he would be able to react sufficiently to steer and operate the car, even though not very well. Principle – Since the accused was able to exercise some voluntary control over his movements, he had not been acting in an entirely involuntary manner, and therefore the defence of automatism was not available. Guilty

Defences - Automatism Criminal Defences © The Law Bank External Causes Based on external cause of loss of control A blow to the head An attack by a swarm of bees Sneezing Hypnotism The effect of a drug PTSD (R v. T 1990) after rape

Defences - Automatism Criminal Defences © The Law Bank Hill v Baxter (1958) 1 All ER 42 D was behind the wheel when his car collided with another; at his trial on a charge of dangerous driving, he claimed he had been overcome by an unknown illness and had been unconscious. Principle – Some credible evidence must support a claim of sudden illness or concussion, they said, usually going beyond D's mere assertion, but (Lord Goddard CJ dissenting) the burden of proof thereafter is on the prosecution to show that the act was a voluntary one. Lord Goddard, quoting Humphreys J in Kay v Butterworth 1945 resurrected the now famous and hypothetical ‘Swarm of Bees’. Guilty

Defences - Automatism Criminal Defences © The Law Bank The Swarm of Bees Defence...LIKE AN UNINVITED SWARM OF BEES... "I do not mean to say that a person should be made liable at criminal law who, through no fault of his own, becomes unconscious while driving, as, for example, a person who has been struck by a stone or overcome by a sudden illness, or when the car has been put temporarily out of his control owing to his being attacked by a swarm of bees..." I agree that there may be cases where the circumstances are such that the accused could not really be said to be driving at all. Suppose he had a stroke or an epileptic fit, both instances of what may properly be called Acts of God; he might well be in the driver's seat even with his hands on the wheel but in such a state of unconsciousness that he could not be said to be driving. A blow from a stone or a swarm of bees I think introduces some conception akin to "novus actus interveniens".

Defences - Automatism Criminal Defences © The Law Bank The Swarm of Bees Defence So Automatism is something external that the defendant does not bring upon himself. Not one bee, but a swarm, because it has to be total loss of control If the defendant loses control because of an illness, that is, some internal factor, he can only plead insanity

Defences - Automatism Criminal Defences © The Law Bank R v T (1990) Crim LR 256 D took part in a robbery with others. When arrested she could remember very little, she had been raped a few days earlier. A psychiatrist diagnosed post- traumatic stress disorder, and suggested she had not at the time of the robbery been acting with her conscious mind. Principle – The judge said there was a question of sane automatism to go to the jury. Verdict not reported

Defences - Automatism Criminal Defences © The Law Bank Insanity v Automatism Internal vs External = Key Revisit R v Quick In Hennessey his defence was not allowed as his failure to take his insulin meant that his diabetes was an internal factor and therefore not automatism

Defences - Automatism Criminal Defences © The Law Bank Objectives Explain the meaning of the general defence of automatism Distinguish between insane and non insane- automatism Explain cases that illustrate the defence of automatism