NOTES OF CASES
| Published date | 01 March 1962 |
| Date | 01 March 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02204.x |
NOTES
OF
CASES
AUTOMATISM
I.
A Question
of
Law
ALTHOUGH
the decision of the House of Lords in
Bratty
v.
Attorney-General
for
Northern Ireland
actually turns
on
a
point
of evidence, Lord Denning’s judgment
is
worth separate considera-
tion for the light
it
throws
on
the general role
of
automatism in
the criminal law.
Bratty was convicted of the murder
of
a
girl by strangulation.
He told the police that when he was with the girl
“
a
blackness
came over him
”
and he
“
didn’t know what he
was
doing,”
though he was able to give some account
of
what happened.
DeEence counsel asked the jury to return
‘‘
one of three separate
and completely independent verdicts
”:
first, not guilty, because
Bratty
“
was
not master
of
the situation
”
due to automatism, the
only cause suggested being psychomotor epilepsy; failing this,
guilty of manslaughter, because his mental condition
was
so
con-
fused that he
was
not capable of forming the intent for murder
*;
and failing acceptance
of
either
of
these submissions, guilty but
insane, because he did not know the nature and quality of
his
acts
or did not know that they were
wrong.
Taking the view, appar-
ently, that there was insuflBcient evidence for consideration by the
jury of sane
(as
opposed to insane) automatism
or
of
lack of intent,
the trial judge left only the last ‘defence’ to the jury who
rejected
it
and Bratty appealed unsuccessfully
to
the Court
of
Criminal Appeal in Northern Ireland and then to the House of
Lords,
mainly
on
the grounds that the trial judge was wrong in
excluding the first two defences.2a
Dr.
Glanville Williams was able to discuss
only one ofRcially reported case in an English
court
on
auto-
matism. Since then, however, the legal possibilities of
a
“
black-
out
”
have been probed by defence counsel in
a
series of cases
s
1
[l96l]
3
W.L.R.
966;
8
All
E.R.
6B.
2
In
any
event, this would appear,
on
the facts, to have been a doubtful
submiasion
in
view
of
Director
of
Public Prosecutionr
V.
Smith
[l961] A.C.
aeo.
%Bratty
was
later reprieved.
a
Criminal
Law,
The
General
Part,
1st
ed. (London, 1953).
4
R.
v.
Harriron-Owen
[196l]
2
All
E.R.
726,
though typically careful research
by the learned author has brought to light a number
of
earlier unoffichll
re
rted csses
on
the subject.
Moreover,
cases
like
Kay
V.
Butterwort1
(I&
110
J.P.
76
can clearly be said
to
be
closely connected with thir to ic
5
Bee
now,
e.g.,
R.
v.
Charlson
[1966],
1
All
E.R.
869;
R.
V.
Ke.mp
[1956]p
3
All
E.R.
NO;
R.
v.
Martin.
The Ttmea,
October
26,
1967;
Hdl
v.
Bazter
[l968]
1
All
E.R.
193:
Police
v.
Beaumont
[1968] Crim.L.R.
620;
R.
V.
Sibblea
[l969]
Crim.L.R.
680:
R.
v.
Bentley
[1960] Crim.L.R.
717;
R.
V.
As
recently
as
1958
227
228
THE
MODERN
LAW REVIEW
V’OL
26
in which the principles governing automatism have been gradually
evolved.
At
the outset, automatism was, perhaps, quite likely
to
succeed
as
a
complete defence either because it could be said that in
a
blackout there was no willed conduct and therefore
no
actus
reu8
of the offence charged or because
a
person who did not know
what he was doing at the time could not be said to have had
men8
rea
either in the form of a
specific
intent or
of
general malice.’
That such a person, however blameless, might still represent
a
danger to the community was underlined by Devlin
J.
(as he then
was)
in
Kemp
*
which imposed the first important limitation on
the defence. Employing and, indeed, extending the only powera
available to him, the learned judge directed the jury
on
the
sum
of
the medical evidence to find insane someone whose blackout was
caused by a hardening of the arteries. Interpreting this as
a
“
disease
of
the mind
”
for the purposes of the M’Naghten Rules,
Devlin
J.
clearly implied that what determined whether the accused
should be sent to a Broadmoor institution or go free was whether
or not his conduct
was
likely to recur, an extremely sensible,
though somewhat original, conclusion, virtually forced on
him
by
the inadequate safeguards of
our
legal system.
Despite
a
number of surprising statements, this point was madc
more explicit by the same judge
in
Hill
v.
Baxter
which
imposed
the second important limitation
on
the defence. Although it had
been implied in
Kemp
that once the accused had put his state of
mind in issue, insanity could then be raised by the prosecution,
it
was obvious that this would hardly be appropriate to all cases,
particularly cases involving petty offences, and that, despite
Wool-
mington
,lo
some practical evidential restriction had to guard
against the possibility of groundless pleas
of
automatism proving
successful, particularly in the lower courts. Whilst the Divisional
Court
in
Hill
v.
Baxter
was unanimous in directing the magistrates
to convict
on
the facts
of
the case, it was divided
as
to
the nature
and weight of the onus
on
the accused, and this represents the
central issue in
Bratty
which is considered later by
Mr.
Hall
Williams.
Budd,
The Times,
November
8,
1961;
R.
v.
Lewendon, The Times,
Decem-
ber 16, 1961. The case which attracted most publicity
wa8
that
of
the
American Serviceman Boshears who
was
held to have killed
8
girl
in his
The Times,
February
18,
1961.
E1ee8
n
automatism and its application to general grinciple:, see further
Edwards,
Automatism and Criminal Responsibility,
1
M
L
R.
375
(1968)
and Prevezer,
Automatism and Inaoluntary
Conduct
[l968] Crim.L.R. 361
and
440.
6
This princi le
was
clearly recogniwd and indirectly, though
unnecessarily,
applied in
barriaowowen,
Zoc.
cit.
note
4
in
which the trial judge’s
admis-
sion
of
evidence of similar offences was held to be wrongful in view
of
the fact
that the defence
waR
one
of
no
actus reus
and
not of
lack
of
mem
rea.
after
a
drunken party and acquitted.
7
See,
e.g., Chnrlson, loc. eit.
note
6.
0
Ibid.
8
IJOC.
cit.
note 6
See, further Prevezer,
Zoc.
cit.
note
6.
10
WooZmington
v.
Director
of
Publrc
Prosocutions
[1936]
A.C.
462.
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