Court of Appeal
| DOI | 10.1177/002201839105500403 |
| Published date | 01 November 1991 |
| Date | 01 November 1991 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
SLEEPWALKING AND INSANITY UNDER THE M'NAGHTEN RULES
RVBurgess
Certain statements of obiter dicta made in the Court of Appeal
and House of Lords and a number of decisions at first instance
have long been taken by leading commentators to establish
sleep/sleepwalking states as non-insane ratherthaninsane automat-
ism (see eg Smith &Hogan, Criminal Law (6th ed) p 40; Cross &
Jones, Introduction to Criminal Law, (11th ed) p 167; Williams,
Textbook
of
Criminal Law, p 609). Such a categorisation, however,
began to sit uneasily with the view taken in several, recent, leading
cases that if automatism was caused by an 'external factor' it fell
into the first category, but, if it was caused by an 'internal factor'
it fell into the second and, thus., constituted insanity within the
M'Naghten Rules (1843) which provide, inter alia, that to establish
adefence of insanity, it must be proved that, at the time of
committing the relevant act, the accused 'was labouring under
such a defect of reason, from disease of the mind, as not to know
the nature and quality of the act he was doing, or, as not know
that what he was doing was wrong'.
The
Court of Appeal's recent
ruling, in R v Burgess [1991] 2 WLR 1206, that sleepwalking
indeed amounts to insanity within the M'Naghten Rules will,
therefore, come as no real surprise to students of criminal law.
One
evening, the defendant watched a video tape with a female
friend in her flat. They were not on intimate terms with each
other, but the defendant hoped their friendship might develop
into something deeper in time. They both fell asleep and the friend
woke up, dazed, to find the defendant had hit her on the head
with a bottle. He then struck her on the head with the video
recorder and grasped her round her throat. At that point, the
friend managed to bring the defendant to his senses and he called
an ambulance. He was charged with, inter alia, wounding with
intent to cause grevious bodily harm, contrary to s 18 of the
Offences Against the Person Act 1861. His defence was that he
435
Journal
of
Criminal
Law
lacked the mens rea for the offence because he was sleepwalking
when he attacked his friend and was suffering from non-insane
automatism. The prosecution contended that this was not a case
of automatism at all but, rather, one in which the defendant was
conscious of what he was doing or, failing that, one which fell
within the M'Naghten Rules requiring a verdict of not guilty by
reason of insanity. The trial judge, on the assumption that the
defendant was not conscious at the time of what he was doing,
ruled that the medical evidence adduced concerning automatism
amounted to evidence of insanity within the M'Naghten Rules and
was not merely evidence of non-insane automatism. The jury
found the defendant not guilty by reason of insanity, in accordance
with s 2(1) of the Trial of Lunatics Act 1883, as amended by the
Criminal Procedure (Insanity) Act 1964, s 1. The defendant
appealed against that verdict to the Court of Appeal by certificate
of the trial judge under s 12 of the Criminal Appeal Act 1968,
submitting that the trial judge's ruling was wrong.
Lord Lane CJ, reading the judgment of the court, explained
that where the defence of automatism was raised by a defendant,
two questions fell to be decided by the judge before the defence
could be left to the jury: (1) had a proper evidential foundation
for the defence been laid? (2) did the evidence show the case to
be one of insane automatism, falling within the M'Naghten Rules,
or one of non-insane automatism? On the second question, his
Lordship stated that there could be no doubt but that the
defendant, on the basis of the jury's verdict, was labouring under
such a defect of reason as not to know what he was doing when
he attacked his friend. The vital question, then, was whether that
stemmed from 'disease of the mind'. Could it be said that the
failure of the mind which caused the defendant to act as he did
without conscious motivation was a disease of the mind rather
than a defect or failure of the mind not due to disease? Turning
to the authorities, Lord Lane noted the distinction drawn in recent
cases in this context between 'internal' and 'external' factors (such
as eg concussion caused by a blow on the head), observing that
there were no such 'external' factors operative here. The cause of
the failure of the mind was an 'internal' cause. The possible
disappointment or frustration caused by unrequited love was not
to be equated with something such as concussion: Rabey v R
436
Court
of
Appeal
(1980) 2 SCR 513, 519, 520. In Bratty v Attorney General for
Northern Ireland [1963] AC 386, Lord Denning stated that: 'any
mental disorder which has manifested itself in violence and is
prone to recur is a disease of the mind' (at p 412), and Lord Lane
now adopted Lord Denning's definition, subject to a possible
qualification: whilst he accepted that if there was a danger of
recurrence that might be an added reason for categorising the
condition as a disease of the mind, Lord Lane was of the opinion
that the absence of the danger of recurrence was not a reason for
saying that it could not be a disease of the mind.
His Lordship noted that certain statements of obiter dicta at the
highest level had suggested that sleepwalking amounted to non-
insane automatism (see eg Lord Denning in Bratty (above) at
p 409) and, also, that in R v Parks (1990) 56 CCC (3d) 449 the
Ontario Court of Appeal had accepted sleepwalking to be non-
insane automatism having concluded that sleep was a normal not
an abnormal condition. Lord Lane accepted that sleep was a
normal condition but added that the evidence in the present case
indicated that sleepwalking, and particularly violence in sleep, was
not normal. He reviewed the medical evidence tendered in the
present case and concluded that on that evidence 'the judge was
right to conclude that this was an abnormality or disorder, albeit
transitory, due to an internal factor, whether functional or organic,
which had manifested itself in violence.
It
was a disorder or
abnormality which might recur.
...
Therefore, since this was a
legal problem to be decided on legal principles, it seems to us that
on those principles, the answer was as the judge found it to be'
(at p 1214). The appeal was, accordingly, dismissed.
Although the ruling in the present case clarifies the law on the
matter in question, it also illustrates the shortcomings of the
current law relating to insanity and re-inforces the need for reform
in that area. The result of cases such as this and, for example, Rv
Sullivan [1983] 3 WLR 123, and R v Hennessey [1989] 1 WLR
287, is that the diabetic, the epileptic and now the sleepwalker is
insane within the current legal rules. In the present case itself,
Lord Lane referred to 'the apparent incongruity of labelling this
sort of disability as insanity' (at p 1214), and there must be a
danger of the law being brought ever further into disrepute while,
as Lord Lane observed, 'what the law regards as insanity
...
may
437
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