Special defence?

Photo by Gregory Pappas on Unsplash

I was motivated to write this particular blog entry when I read about an account of the outcome of a criminal case from England.

In that case, a young man (Dale Kelly) was acquitted of the charge of sexually assaulting a young woman while she was asleep. Kelly was able to satisfy the court that he had been sleep-walking at the time of the incident and, therefore, had no control over his actions.

Technically, the jury at York Crown Court returned a verdict of not guilty by reason of insanity.

A link to the story on The Guardian’s website can be found below:

https://www.theguardian.com/uk-news/2019/aug/20/sleepwalking-man-cleared-of-sexually-assaulting-woman

If such a case had occurred in Scotland, we might be talking about the possible application of the special defence of automatism. Automatism is one of six potential special defences that are now deemed to exist in Scots criminal law (the others being alibi; coercion or necessity; incrimination; insanity; and self-defence).

That said, it is not immediately clear that Mr Kelly would have been acquitted had his trial taken place in Scotland.

What is automatism?

Automatism is a condition whereby an individual unconsciously loses control of the body through no fault of his own, for example, due to the involuntary ingestion of mind altering drugs or a condition such as sleep walking or epilepsy. Crucially, the accused did not make a conscious decision to commit a criminal act. It is during the unconscious episode that the accused commits a crime, but does not know what is happening and has little (if any) recollection of this event having taken place.

An example of the successful pleading of the defence of automatism arose in Her Majesty’s Advocate v Ross (1991) SLT 564, 1991 JC 210.

The accused had been drinking in a public house and, while present there, he subjected several of his fellow drinkers to a violent assault with a knife. It later emerged that someone in the public house had placed temazepam and LSD tablets in the lager can from which the accused had been drinking. The combination of temazepam and LSD had caused the accused to suffer an extremely violent reaction and this was the reason for him carrying out the attack on the other customers in the public house. The accused relied on the defence of automatism and was subsequently acquitted because he was able to convince the court that he had lost control of his body. It should, of course, be appreciated that the accused had no knowledge that he had ingested the temazepam and LSD tablets and could not be held responsible for what later happened.

Often the type of automatism found in Her Majesty’s Advocate v Ross (1991) is referred to as external automatism because the reason for the loss of control by the accused is caused by an external factor, for example, ingesting drugs without his knowledge.

Critically, Lord Justice-General Hope made the following remark in Ross:

“I understood [the Solicitor General] to accept that there was evidence that the appellant [Ross] had no control over his actions with the result that they were involuntary.”

Historically, the Scottish courts permitted attempts by an accused to use a defence of internal automatism. Internal automatism is caused by some physical condition from which the accused suffers, for example, epilepsy, diabetes or sleepwalking. It could be argued, however, that the concept of internal automatism was limited by the decision of the High Court of Justiciary in Her Majesty’s Advocate v Cunningham (1963) SLT 345 where the accused failed to convince the court that his epilepsy should be used as a defence to the charge that he had committed a number of road traffic offences. Previously, however, the Scottish courts had recognised the concept of internal automatism as a defence (as in His Majesty’s Advocate v Ritchie (1926) JC 45).

In Cunningham, Lord Justice-General Clyde stated that:

“Any mental or pathological condition short of insanity—any question of diminished responsibility owing to any cause, which does not involve insanity—is relevant only to the question of mitigating circumstances and sentence.”

Admittedly the decision in Cunningham, has been viewed by some as a blatant attempt by the High Court of Justiciary to narrow the range of possible defences available to the accused in Scots criminal law.

Nevertheless, the ramifications of Cunningham seem to suggest that a condition such as parasomnia as experienced by Mr Kelly might not result in an acquittal verdict in Scotland, but rather a lesser sentence being imposed by the court.

As Doctor Claire McDiarmid of the University of Strathclyde’s Law School has noted, a court has accepted the defence of automatism in a situation where the accused suffered from diabetes which caused hypoglycaemia (see MacLeod v Mathieson 1993 SCCR 488). That said, the sheriff was at pains to point out that the defence could only be used in such circumstances which related to a first attack of the condition. In other words, if the accused was well aware that a condition from which s/he suffered tended to result in loss of mental and bodily control this might not be easily forgiven or overlooked by a court. In other words, the negative consequences resulting from the medical condition could be not just reasonably foreseeable, but highly probable.

Critically, returning to Ross, the accused’s behaviour had resulted from the actions of other parties i.e. the spiking of the can of lager which was absolutely not his responsibility. The Scottish courts seem more willing to accept the defence of automatism in these types of situation as opposed to an incident such involving Mr Kelly who had a history, from childhood, of parasomnia. This factor might have weighed very heavily on the outcome of the trial had it taken place in Scotland.

A link to Doctor McDiarmid’s paper discussing automatism and special defences generally in Scots criminal law can be found below:

https://strathprints.strath.ac.uk/51182/3/McDiarmid_Ashgate_2014_How_do_they_do_that_automatism_coercion_necessity_and_mens_rea.pdf

Copyright Seán J Crossan, 22 August 2019

Published by

sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult with a qualified Scottish solicitor who will be able to provide you with the support that you require.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s