The Sleepwalker is Not Insane
| Author | Irene Mackay |
| Published date | 01 September 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb02845.x |
| Date | 01 September 1992 |
7he
Modern
Law
Review
IVOl.
55
The Sleepwalker
is
Not
Insane
Irene
Mackay
*
The Court of Appeal
in
R
v
Burgess’
decided that violence occurring when the
appellant was sleepwalking amounted to insanity under the M’Naghten Rules and
was not non-insane automatism, even though the possibility of the recurrence of
serious violence was unlikely. The court was uncomfortable about its conclusions,
as was the trial judge. It was admitted that
it
is incongruous to label this
sort
of
disability as insanity
-
as Lord Diplock said
in
R
v
Sullivan?:
it
is natural to feel reluctant to attach the label of insanity to a sufferer from psychomotor
epilepsy of the kind to which the appellant was subject, even though the expression
in
the
context of a special verdict of ‘not guilty by reason of insanity’ is
a
technical one which includes
a purely temporary and intermittent suspension
of
the mental faculties
of
reason, memory
and understanding resulting from the occurrence of a epileptic
fit.
But
the label is contained
in
the current statute,
it
has appeared
in
this statute’s predecessors ever since
1800.
It
does
not lie within the power
of
the courts
to
alter
it.
Only Parliament can do that.
It
has done
so
twice;
it
could
do
so
once again.
Burgess
is an important decision
in
that
it
illustrates once again the difficulties
faced by the courts
in
applying the M’Naghten Rules and
in
often reaching conclusions
which give rise to the thoroughly unsatisfactory and unacceptable procedure of
incarcerating the accused. Moreover,
it
serves as a warning that non-insane auto-
matism is rarely a successful defence and should be raised,
it
seems, only where
the cause of the automatic behaviour is an external factor, eg a blow to the head
causing concussion
or
where an anaesthetic has been administered.
To raise the defence
in
other circumstances leaves open the issue of insanity which,
at best, gives an acquittal, which is
so
qualified that its effect can be to place the
accused
in
a worse position than he would have been had he pleaded guilty
with
mitigation.
In
Burgess,
the special verdict of ‘not guilty by reason of insanity’ under
s
2
of the Trial of Lunatics Act
1883’
excused the accused from criminal responsi-
bility but,
in
those circumstances, the court had to make an order that the accused
be admitted to such hospital as may be specified by the Secretary
of
State.J This
had the effect, on the one hand, of absolving the defendant from criminal responsi-
bility for his act, whilst on the other hand, detaining
him
in
a hospital
in
accordance
with
the Mental Health Act 1983. He was treated as
if
a hospital order had been
made under
s
37 of the said Act and, by virtue
of
s
41,
a restriction order could
be made detaining
him
without limit of time.5 Thus labelled with insanity and
acquitted, Burgess was treated
in
the same way as the convicted criminal who suffers
from a mental illness, psychopathic disorder, severe mental impairment or mental
impairment. Can this be the correct way
to
deal
with
an accused who, whilst sleep-
walking, does a violent act which is,
in
the light of the medical evidence before
the court, an event which is unlikely to recur? The court
in
Burgess
adopted a social
defence policy, the fear being that an absolute acquittal might leave the public
*Lecturer in
Law.
University
of
Manchcster. My thanks
to
Rodney Brazier for his helpful coninicnts.
I
2
3
4
S
11991
I
2
All ER
769.
119831
2
All
ER
673.
at
678;
[19841
AC
156.
at
173.
As amended by
s
I
of
the Criminal Procedure (Insanity) Act
1964.
s
5
Criminal Procedure (Insanity) Act
1964.
as
amended
by
s
56
and Schedule
I I
of
the
Court\
Act
1971.
Schedule
I
of
the Criminal Procedure (Insanity) Act
1964.
714
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