myCILEx
Helen Roberts discusses R v Doe (2015) 13 August, T2014730 (unreported) to revise and explore the law governing automatism defences, with a focus on sleepwalking cases.
In August 2015, Helen Doe was found not guilty of the attempted murder of her elder brother, Kenneth Doe. In itself, this is a fairly unremarkable case (aside from the resultant media interest caused by the fact that the accused is a transgender former employee of the Metropolitan Police). However, the defence raised successfully by Helen Doe - that of non-insane automatism via sleepwalking - is of real interest for law students.
The established facts were that, in July 2014, Helen Doe awoke in the early hours of the morning in the siblings’ shared home feeling an ‘overwhelming hatred’ for her brother. She then proceeded to hit him, as he lay in his bed, with an 18-inch iron bar. This caused Kenneth Doe to suffer wounds to his head, as well as a fractured finger, probably caused by his attempts to defend himself. After calling the emergency services, Helen Doe immediately confessed to the police that not only had she been the cause of her brother’s injuries: ‘I wanted to do it. I wanted to kill him.’
Helen Doe’s defence rested on the argument that she was sleepwalking at the time of the attack, and that the sleepwalking and violence had arisen as a result of the drugs she was taking. The prescribed medication included hormone therapy treatment to assist her male-to-female gender change, as well as anti-depressants .
So, how was the judge in Doe able to reach the conclusion that he did? ... Further judicial clarification here would be most helpful!
In terms of prosecuting Helen Doe, it looks to have been a clear-cut case of attempted murder. She committed ‘an act which is more than merely preparatory to the commission of the offence’ (Criminal Attempts Act 1981 s1(1)) (actus reus) and, as confirmed in R v Whybrow (1951), did this with the intention to kill (mens rea).
However, even where both actus reus and mens rea are established, some defences can still offer the defendant a complete acquittal: automatism is one such example.
This defence recognises and makes allowances for the fact that the defendant’s physical movements were not controlled by their mind. This means that that person’s actions (in Helen Doe’s case, hitting her brother over the head with an iron bar) cannot truly be said to be their own: ie, they did not actually ‘commit’ the actus reus.
At its simplest level, automatism could arise in a situation where a person faints and breaks a vase as they fall. In no way can the person be said to have voluntarily caused the damage to the vase: the fall was an action completely outside of their control. However, cases involving automatism are rarely as clear-cut as the example above; as a result, the law in this area is confusing in places and unsatisfactory in others.
One particular aspect of the automatism defence which has long been criticised is the distinction between non-insane automatism (more commonly simply referred to as automatism) and insane automatism (or insanity). This distinction is especially important as, while a successful plea of automatism will result in a complete acquittal, a finding of insanity could ultimately result in indefinite incarceration in a secure hospital.
The insanity defence is in itself problematic, not least because its definition comes from M’Naghten’s Case [1843] All ER Rep 229; although medical understanding of mental illness has moved on greatly in the intervening period, the law remains unchanged. In M’Naghten , Tindal CJ defined insanity as arising when: ‘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, if he did know it, he did not know he was doing what was wrong.’
Identifying whether or not the accused’s automatic state arose from a ‘disease of the mind’ is, therefore, a key element in distinguishing between the two defences: if the accused’s automatic behaviour has its roots in such a disease, they are well on their way to being able to establish insanity; however, if it does not, an automatism defence is more likely to be appropriate.
Over the years, the courts have struggled to define what a ‘disease of the mind’ is. For example, in R v Kemp [1957] 1 QB 399, Devlin J came to the conclusion that the concept was not limited to brain-based diseases (as had been suggested in R v Charlson [1955] 1 WLR 317), but would encompass any ‘disease which is capable of affecting the mind in such a way as to cause a defect, temporarily or permanently, of its reasoning, understanding and so on’ . However, in Bratty v Attorney-General for Northern Ireland [1963] 3 October, HL, Lord Denning proposed an alternative definition: ‘any mental disorder which has manifested itself in violence and is prone to recur … the sort of disease for which a person should be detained in hospital rather than be given a qualified acquittal’ .
Perhaps because of the potential complexity and conflict within these two definitions, a simpler - but not always effective - means followed to distinguish between insane and non-insane automatism is usually this:
This means that, effectively, a cause which can be seen to have arisen naturally or internally resulting from the accused’s own biological make up, ie, a ‘disease of the mind’ , such as a condition, illness or developmental delay, will give rise to the insanity defence. Where the cause comes from outside of the body, for example, being knocked on the head or taking a drug which causes a reduction in full consciousness, it will be automatism. Where the automatic state is caused by intoxication (via drink or drugs), things get even more complex, with the focus here being on whether the intoxication was brought about involuntarily (in which case, a full defence is possible) or by choice (when a defence is much less likely to succeed).
This internal/external distinction has caused some very odd outcomes; for example, sleepwalking is another contentious area. R v Burgess 93 Cr App R 41, CA is the leading case on sleepwalking as a defence. Here, the accused and a female neighbour had spent an evening together watching television. While she slept, he hit her over the head and grabbed her throat. At trial, he tried to raise the defence of non-insane automatism to the assault charge, claiming that he had been asleep at the time. The Court of Appeal followed Lord Denning’s definition from Bratty (above) and was able to conclude that being violent while sleepwalking amounted to a disease of the mind. Accordingly, Burgess could not raise non-insane automatism.
The court expressly rejected the different outcome reached in the Canadian case of R v Parks [1992] 2 S.C.R. 871, where the accused - while asleep - had driven to his parents-in-law’s house and attacked them, killing his mother-in-law and seriously injuring his father-in-law . Expert witnesses here advised that sleepwalking was not a disease of the mind or mental illness, and the judge directed that the relevant defence was, therefore, non-insane automatism. Parks was acquitted.
In English law, then, those who commit violent acts while in a state of reduced consciousness through sleep (or, at least, not fully awake) cannot raise automatism as a defence to their crime; instead, their only option is to either plead guilty or raise the insanity defence.
This makes the outcome in Helen Doe’s case seem incorrect. The only possible logical basis for this outcome can be in relation to the medication that she was taking. Unfortunately, without a full case report or transcript, we cannot be sure of the precise facts; however, a local newspaper report tells us that expert witnesses ‘all agreed that it was possible that the combination of drugs she was taking caused her violent behaviour’ . Furthermore, in summing up, the judge is said to have confirmed to the jury that a person cannot be convicted for carrying out an involuntary act.
We do have an authority which considers specially a situation of ‘intoxicated sleepwalking’ . In Lowe (2005, unreported), the accused killed his father in a violent attack while sleepwalking, following an evening’s drinking. Despite the possible external influence of alcohol, the court felt that the underlying internal condition was ultimately to blame. Lowe was found not guilty by reason of insanity, and ordered to be detained indefinitely under a hospital order.
So, how was the judge in Doe able to reach the conclusion that he did? It can only be assumed that he believed that the external influence of the drugs was the overriding cause of the violent sleepwalking episode and, unlike Lowe, Helen Doe could not be said to have voluntarily put herself into that situation, as the cause was prescribed drugs rather than the voluntary consumption of alcohol. Further judicial clarification here would be most helpful!