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Automatism and Mental Disorder in Scots Criminal Law

Document Cited authorities 13 Cited in Related
Vincent
Published date01 May 2015
DOI10.3366/elr.2015.0272
Pages210-233
Date01 May 2015
AuthorElizabeth Shaw
INTRODUCTION

Scots law recognises that mental abnormality can sometimes entirely eliminate a person's criminal responsibility for her actions. Two separate defences are relevant in this context: mental disorder excluding responsibility (henceforth “the mental disorder defence”) and automatism. The former, a new statutory defence which replaces the old defence of insanity, was created following a report by the Scottish Law Commission (“SLC”).1

Criminal Procedure (Scotland) Act 1995 (hereafter “the 1995 Act”) s 51A, inserted by the Criminal Justice and Licensing (Scotland) Act 2010 s 168; Report on Insanity and Diminished Responsibility (Scot Law Com No 195, 2004).

However, that report ignored automatism. This omission is unfortunate, since automatism and the mental disorder defence are very closely related.2

This omission may be explained by the fact that the SLC received its terms of reference following evidence from psychiatrists to the Millan Committee about difficulties with the insanity and diminished responsibility defences. See Millan Committee, New Directions: Report on the Review of the Mental Health (Scotland) Act 1984 (SE No 56, 2001), paras 43–61. The close connections between automatism and insanity were not fully appreciated in the Scottish academic literature at the time and the SLC did not recognise the need to broaden the project. In contrast, the problematic boundary between automatism and insanity in English law has been the subject of a long-standing discussion; see e.g. E Lederman, “Non-insane and insane automatism: reducing the significance of a problematic distinction” (1985) 35 Int'l & Comp LQ 819. More recently, this topic has also received some attention in Scotland: see e.g. J Ross, “A long motor run on a dark night: reconstructing HM Advocate v Ritchie” (2010) 14 EdinLR 193.

 By looking at the mental disorder defence in isolation, the SLC missed an opportunity to make sure that the criminal law takes a philosophically coherent and practically workable approach to people with mental abnormalities

Section B of this article will set out the definitions of the two defences. Section C will outline a single moral rationale that explains both defences – the principle that an individual should only be held criminally responsible for an offence if that person had the rational capacities necessary for moral agency at the time of the alleged offence. This section will begin by highlighting aspects of the SLC's and Law Commission's analyses that seem to support this rationale. It will then move beyond these analyses, in order to explain why convicting someone who lacked the relevant capacities would be inappropriate – the explanation being that convicting such a person would not serve the communicative function of the criminal justice system. The analysis offered draws on Antony Duff's account of the nature and purpose of criminal responsibility. Duff's work has been very influential in criminal law theory and was cited approvingly in the Law Commission's Discussion Paper.3

Discussion Paper on Insanity and Automatism (Law Com DP, 2013) 213.

There is not scope within this article to provide a full defence of this theory of responsibility. Instead, the purpose of this article is to focus on specific implications of this theory for the automatism and mental disorder defences, implications that have not been generally recognised. This article will argue that, despite the differences between these defences, the most morally significant aspect of both defences is something they share in common – they are based on a lack of rational capacities. Contrary to the prevailing view in this area, it will be further argued that the defences should be merged into a single defence, one which would be available to those who lack the capacities required for moral responsibility at the time of the alleged offence, regardless of whether those incapacities were caused by external factors, mental disorders, or physical conditions

Section D will explain that my proposal to create a single defence is also consistent with a trend in theorising about the role of free will in criminal responsibility – the trend towards “compatibilist capacitarianism”. However, those who subscribe to this theory of responsibility have not yet recognised that their approach would support the introduction of a unitary defence based on incapacities.

Section E will identify five categories of problem that stem specifically from the current approach to distinguishing between the mental abnormality defences on the basis of the cause of the abnormality. These problems would not arise if we had a unitary mental abnormality defence based on incapacities.

In the light of the theoretical analysis undertaken in earlier sections, Section F will examine in detail the specific ways in which the automatism and mental disorder defences have been differentiated in Scotland and will compare this with the Law Commission's proposals to reform English law. Finally, Section F will consider and respond to possible objections to my proposal to introduce a unitary incapacity-based defence.

 LEGAL DEFINITIONS

Prior to the recent statutory reforms, both automatism and insanity were based on the idea that the accused suffered a “total alienation of reason” at the time of the crime.4

Ross v H M Advocate 1991 JC 210; Brennan v H M Advocate 1977 JC 38.

A total alienation of reason means that the accused was unaware of the nature and quality of his acts or that what he was doing was wrong.5

Cardle v Mulrainey 1992 SLT 1152.

 The main difference between automatism and “insanity” concerned the cause of the accused's mental incapacity, the common law position having been that insanity resulted from an “internal” cause. The category of internal causes was broad enough to include mental disorders and also physical illnesses that affected the mind. In contrast, automatism must have an “external” cause, e.g. a spiked drink, toxic fumes, or concussion from blows to the head. An additional requirement for automatism is that the accused's condition must not be self-induced or something that he was bound to foresee

The insanity defence has now been replaced by the mental disorder defence. This requires that an accused must, at the time of the conduct constituting a crime, have been “unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct.”6

1995 Act s 51A(1).

“Mental disorder” is defined as “ a) mental illness; b) personality disorder; or c) learning disability, however caused or manifested”.7

1995 Act s 307(1), importing the definition provided in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003.

 THE MORAL RATIONALE UNDERLYING THE DEFENCES

This section will begin by highlighting comments made by the SLC and the Law Commission that seem consistent with my claim that the automatism and mental disorder defences share the same moral basis. Both defences are based on a denial that the individual had the capacities required for moral responsibility at the time of the offence.8

This rationale is also based on the absence of prior fault in bringing about the relevant incapacities.

I will then explain why these capacities should be required for legal responsibility. An implication of this rationale (which the SLC and Law Commission did not recognise) is that the automatism and mental disorder defences should be merged into a single defence

The SLC very briefly considered the moral justification for having a mental disorder defence. They state that the defence “gives effect to a fundamental principle of criminal law, namely that where a person suffers from a severe mental disorder it is unfair to hold that person criminally responsible. That is so whether or not that person could have the mens rea for the offence charged …”.9

Insanity and Diminished Responsibility (n 1) 13.

A conviction would be “unfair” because such a person is without blame.10

Insanity and Diminished Responsibility (n 1) 22, fn 52.

 The SLC therefore seem to assume that moral blameworthiness is, at least usually, a necessary condition for criminal responsibility.

According to the SLC, in order to be considered a responsible agent and an appropriate candidate for blame, the accused must possess certain rational capacities. The SLC note that, at common law, insanity and automatism were defined in terms of “a total alienation of reason” – an expression that seems to indicate the absence of the capacities required for moral responsibility. The SLC acknowledge that this expression “had the same meaning” for insanity and automatism.11

Insanity and Diminished Responsibility (n 1) 9.

Despite the fact that the courts have referred to insanity and automatism as involving an absence of mens rea, the concept of a “total alienation of reason” seems to be broader than this, encompassing other capacities required for moral responsibility. The SLC quote the automatism case of Cardle v Mulrainey, according to which the “total alienation of reason” test could be satisfied by a lack of knowledge that one's behaviour was wrong. A person might have the mens rea for an offence (e.g. recklessness or intention) but still lack the ability to understand that criminal conduct is wrong. The courts interpreted the phrase “understanding of wrongfulness” to cover “moral wrongfulness” (an approach endorsed by the SLC).

The SLC's comments therefore seem consistent with my claim that the automatism and insanity/mental disorder defences share the same moral basis – the absence of capacities necessary for moral responsibility (an idea that is broader than simply the absence of mens rea).

The Law Commission, when discussing the philosophical basis for the defences, conclude that insanity and automatism fall under the same legal classification. They are both “denials of responsibility” on a “fundamental level”.12

Insanity and Automatism (n 3) 199.

They both involve denying that that...

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