Essay: Special defences of mental disorder and automatism in Scots law

Introduction. (Mental disorder)
A person must be accountable for his action if that action was voluntary (Actus reus) and his mind was remorseful (Mens Rea). There are four essentials required to prove mens rea, which is resolution same as intent, knowledge, recklessness, and negligence. In case of mental ailment or involuntary alcoholism, these essentials invalid so the accused were not accountable for his action where he did not act firmly or with the remorseful mind. In some circumstances, might, an accused was ignorant what was done with his drink (Ross v hma). Both defences recognised by the Scots law and an accused must give notice to the court of his intent to plead. However, the special defence of insanity eliminated and changed by a mental disorder.
An accused has the right to defend himself and provide any evidence where he thought or believe that he was innocent or was ignorant of the events of the incident. However, the accused was allegedly neither aware of the events nor capable of understanding to control the same. A defence may rise a reasonable question on the evidence acquiesced by the prosecution. There is a possibility that accused at the time of committing crime completely ignorant about what he is doing or did.
Scottish criminal law recognised an absence of criminal charge. Hume discussed this issue in a number of cases . Therefore, mental disorder moved from their common law origins to become a statutory law. Such as part, 7 of the Criminal Justice and Licensing (Scotland) Act 2010 recently introduced new sections 51A, 51B and 53F into the Criminal Procedure (Scotland) Act 1995. These requirements now cover three essentials: first not fit for trial as an initial plea in bar of trial; second the special defence of not capable of criminal charge because of mental condition; third: justifying factor, diminished responsibility. Additionally, Section 51A (1) of the Criminal Procedure (Scotland) Act 1995 has described that,
“A person is not criminally responsible for conduct constituting an offence and is to be acquitted of the offence if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct.”
Mental disorder and automatism are special defences, which are close to each other. A mental disorder is identified as “Insanity” which shaped no medical inclusive meaning, therefore, changed with a mental disorder. It was clarified in the case of Brennan v HMA . Since that time the test for not capable for trial now included both mental and physical part of the defender. Section 53F and 51A of the Criminal Justice and Licensing (Scotland) Act 2010 (“the Act”) now clarified that conditions in detail.
Introduction (Automatism).
We will observe here the defences of intoxication and automatism. Like mental disorder, automatism involves a claim that a defender ought to be accused on the basis that her mental state was not that of a normal person at the time of the wrongdoing. A state of mind in which a person, may be capable of action, is not conscious of what the person is doing at the time the crime was alleged to have been committed.
Involuntary intoxication: a mental condition in which a person is conscious of his action but ignorant that his material mixed by someone else without prior to his knowledge reduced by a foreign element such as Unknowingly drinking ‘spiked’ fruit punch. Therefore, the defence of automatism requires a four-part test to be present, which we will discuss. In addition, automatism is a defence, which more often used against strict liability cases such as dangerous driving. Now we will discuss both in turn:
Mental disorder in Detail.
The Scots law mostly relied upon common law and very much stick on to the old institutional writers such as Hume, who described defence of insanity as “absolute alienation of reason and an involuntary act which unknown to accused” further Hume described insanity,
“such a disease as deprives the patient of the knowledge of the true aspect and position of things about him, – hinders him from distinguishing friend or foe, – and gives him up to the impulse of his own distempered fancy.” This explanation has assumed later in case of HM Advocate v Kidd where a defender has charged of the murder of his partner and daughter, He argued that he was hurt a complete loss of his memory and ignorant of all the events happened. However, Lord Strachan has described, “when accused described “mental defect” must have prevented the accused from exercising rational control over his action and insanity is a purely legal concept. Medical evidence is relevant, but it is not the deciding factor”.
Mostly Scots law has stimulated a little from Hume’s definition, and the ruling of “absolute alienation of reason” still considered as the major part of the defence in the contemporary law.
In Brennan v HMA the court refused the argument of self-induced intoxication, which causes a transitory malfunctioning of the mind, could amount to insanity. They said, “insanity in our law requires proof of total alienation to the act charged as the result of mental illness, mental disease or defect or unsoundness of mind….”
The court also refused to accept the argument in case of Finegan v Heywood where an accused consumed beer and while asleep took the keys of his friend’s car and went on the road. The court convicted him under motor offenses act and said he is personally accountable for his actions because he knew that consuming alcohol could cause him trouble.
M’Naughton Rule.
In 1843, the House of Lords in “M’Naughton” ruled out the defence of insanity. It established a defence on the grounds of insanity that must clearly prove that at the time of committing a crime, the accused was under the influence of mental disease or affected by an external factor, which affects the mind of the accused, as not to know the nature of the act he was involved. As per this rule, the burden of proof now shifted to defence(accused)on the balance of probabilities that he or she was insane, and if the test is met, then the accused is entitle of special defence with the verdict of “not guilty by reason of insanity”. However, on the prosecution, the proof would remain as ‘beyond the reasonable doubt’ .
Lord Strachan gave direction to the jury in case of HM Advocate v Kidd and said,
“The question really is this, whether at the time of the offences charged the accused was of unsound mind…………”
There could be possible that a person looking good otherwise but at the time of action his mind was not sound enough to make a correct judgment such as people under the mental disease of ‘Schizophrenia’ apparently acted normally but at some point, they are under the effect of their disease. However, if they act wrong and did a crime then courts look upon the circumstances whether at the time of committing a crime they were under influence of disease or involuntary intoxication, which caused the crime.
Article 6 of ECHR gave a right to all accused being treated fairly at the time of hearing and deciding the case.
Lord Murray in Ritchie v HMA described that “owing to a cause which he was not bound to foresee, and which was out with his control”.
Furthermore, Lord Denning in Bratty v HMA said: “an act as involuntary when it is done ‘by the muscles without any control of the mind or ‘by a person who is not conscious of what he is doing”.
Additionally, in the above case accused performed act but without any control of the mind and he did not aware what he was doing at the time of the crime. He was not conscious enough to make a judgment of his actions. To prove this element in the court an expert opinion could change the whole scenario and an accused may allow walking free. The onus of proof on the accused on the balance of probabilities, which is lesser than beyond the reasonable doubt.
Automatism in detail.
The defence of automatism has not more often used as a criminal defence. Mostly accused in strict liability cases such as dangerous driving to avoid criminal liability because in strict lability cases there is no requirement of intent. However, there is four conditions are required to prove automatism which are;
a) Complete alienation
b) External factor
c) Must not self-induced
d) The factor must not foresee.
Ross v HMA presented a defence of automatism where defender charged with many offenses while spiked with a drug called Temazepam. Defender argued lack of mens rea but no precedence. He was convicted but later on appeal acquitted from charges because the case was established automatism with 3 conditions. Others do that without his knowledge. Therefore, therefore, on the ground of non-self-induced, he was not responsible for his intoxication, which led to violent actions.
This case brought a significant change in Scots law for automatism. However, explicitly that since this case, if somebody has been under the effect of medications that they did not take voluntarily or unknowingly that they were taking or were under the effect of and commit a criminal act. It could be a defence for them in court if they can prove or give evidence that their intoxication was not self-induced.
External Factor.
The decision of Ross does not clarify an external factor, but it seems that the accused ingested, consumed, or inhaled or perhaps something which happened to him, such as a blow to the head. It has suggested that taking an anesthetic to the aim of the dental or medical reason may be considered as an external factor.
Internal factor.
The law experts suggested that an internal factor might cause an accused to act criminally in events of which he cannot control himself. Such as patients of diabetes may produce hypoglycaemic state or patients suffering from epilepsy or seizures. Lord justice- general Clyde at 84 in HM Advocate v Cunningham said,
“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”
i) In Bratty v Attorney General for Northern Ireland, The accused was convicted of the murder of a young girl. He told the police that he had been overcome with a “terrible feeling” and a “sort of blackness” at the time of the incident. At the trial, the accused plead the defence of automatism because of epilepsy, but the trial court rejected his defence and did not refer to the jury. The accused appealed and argued that the trial court was wrong to reject the defence of automatism. He argued that the burden of proof was on the prosecution to prove that the accused’s action was conscious and voluntary beyond a reasonable doubt.
ii) the evidence showed that the action was not voluntary or consciously done.
iii) this form of evidence should have been left to the jury for consideration.
The prosecution argued that where an accused claim defence of automatism based on internal factor than burden shifted to the accused to same as in case of insanity. It was held that the preliminary judge was just under the obligation to leave the issue of automatism for the jury where the resistance had left an appropriate evidential establishment for doing as such. The preliminary court for this situation was correct not to leave the safeguard to the jury as the main source claimed for the demonstration being referred to be an internal factor.
In the case of Macleod v Mathieson, the accused was charged for careless driving and killed another driver. The defence argued that at the time of the alleged accident the accused who was a diabetic patient was suffering a hypoglycaemic episode. The court applied the four tests, which sets down in Ross v HMA and admitted that a hypoglycaemic attack could affect an external factor. However, he argued that patient already diagnosed, as diabetic and therefore he knew that he might suffer from the hypoglycaemic attack. It could not be considered this episode was foreseeable and accused failed to get relief because of the absence of the fourth condition of Ross.
It has suggested in latter cases that the Scottish precedent established in Ross v HMA has followed in England as well . In the latter case of Sorely v HMA where the appeal of the accused has refused by the appellate court because not all the required conditions have met. However, there was enough evidence of the first two elements required in Ross v HMA, but not of the third one which is total alienation of reason amounting to a total loss of control.
Voluntary Intoxication.
There is no room for voluntary intoxication as a defence in Scots law. Again, Hume explained this at I, 45 as,
“certain it is, that the law of Scotland views this willful distemper with a quite different eye from the other, which is the visitation of
Providence; and if it does not consider the man’s intemperance as an aggravation, at least sees very good reasons why it should not be allowed as an excuse, to save him from the pains of his transgression”.
The above case of McLeod v HMA where the court rejected the defence argument because although accused was a diabetic patient but at the time of the accident, he knew that due to the circumstances he might suffer a hypoglycemic attack, which means that his act was voluntary which caused the death of another driver.
Somnambulism.
A precedent set out in the early case of HM Advocate v Simon Fraser On the night of April 9, 1878, the accused picked up his young child from the bed and aggressively shattered him much time against the door, floors and walls. The child’s body broken down and he suffered brain injuries as well. However, the child died because of his brutality. He pleaded not guilty and argued that he was asleep at the time of the crime. His neighbor witnessed that Simon Fraser was under great distress, which caused this incident. However, Fraser took the view that he was sleeping while he dreamt that he had seen a wild beast attacking his child and he had tried to protect his child by retaliating. During the trial, Fraser’s dad confirmed that his son had many sleepwalking violent episodes as a young boy and attacked him while sleepwalking.
Fraser also attacked his sister while asleep.
Fraser’s doctor confirmed that his patient had problems with asleep fits of short-term insanity. The court acquitted him from the charges and accepted that he would sleep alone in the future.
In a recent case of Finegan v Heywood , were accused while celebrating the birthday party of his son consumed excessive beer. He then went back to home and fallen asleep, later under the influence of “Parasomnia” he took the car keys of his friend and drive that car for a long distance. He was convicted for a motor offense. His appeal was refused by the court that the accused cannot use the defence of non-insane automatism. The court took the view that the accused was fully aware that drinking alcohol might cause him sleepwalking. However, he is responsible for himself who create those circumstances.
Conclusion.
The special defences of mental disorder and automatism currently recognised by Scots law. The defender must give prior notice of his intention to plead the special defence of automatism or mental disorder (Insanity). The burden of proof remains on the prosecution to prove the case beyond a reasonable doubt except in the case of special defences where the burden shifted on accused to prove himself innocent on the balance of probabilities. The court will look into factors under the provisions of common law and the Criminal Justice and Licensing (Scotland) Act 2010, if the appropriate plea is effective and going-over of the facts whether or not the suspect committed the crime and if so whether there are any grounds available for the court to acquit him from the charges. If mental disorder (Insanity) used as a special defence then it leads to an acquittal, but it requires proof of total alienation of reason. It is only right of an accused to plead the special defence of mental disorder. The burden of proof on accused is lesser than the prosecution, which is, remain beyond a reasonable doubt for prosecution and on balance of probabilities for an accused. Voluntary intoxication is not an acceptable special defence in Scots law.
An accused can claim plea of special defence of automatism where he suffered a total alienation of reason caused by an external factor, which was neither self-induced nor foreseeable. The most important example of where a drink “Spiked” without the knowledge of the accused.
There must be direct evidence on all four requirements and accused must establish total alienation of reason. An accused may claim defence where the accused has an unforeseen reaction to legal medicine, unless not taken according to the prescription of GP.