Download Insanity & Automatism and more Study notes Law in PDF only on Docsity!
Synoptic Paper Revision
Guide 2013 :
Insanity &
Automatism
Basic Set Up of the Exam
Time: 1 ½ hours Question One:
Synopsis of one of the eight cases in the booklet ^ What did it decide? How far does this confirm existing law? How far has the law developed since? Link to at least one other case and the sources!
Question Two
One essay based on a quote from one of the sources, critically evaluating that area of the law
Save this question for last!
Put the quote into context Define and evaluate the development of the area. Law reform Produce a balanced argument. Link to sources!
Question Three:
Three problem questions which require application of the law to the scenario, explanation and conclusion.
Locate the definitions in the sources 3 critical points in each problem and a relevant case Conclude
Speed Test (1) Identify the sources and line numbers of the following
- Where will you find the definition of automatism?
- Which source[s] talk about the problems of the reforms to insanity?
- Where will you find reference to distinguishing?
- Identify two problems with the current law on automatism , using the
sources.
- Where will you find reference to the role of the judge in insane and non-
insane automatism?
- Name one case from the sources which follows an earlier precedent
- Name one case which created new precedent.
- Which source discusses the problem of the numbers pleading insanity?
- Where will you find the facts of Burgess?
- Where will you find the problem of the different burdens of proof for insanity
and automatism?
Speed Test (2) Identify the sources and line numbers of the following
- Where will you find the key case on insanity being discussed?
- Identify two sources which discuss the meaning of ‘disease of the mind’?
- Which sources discusses reform to the current law on insanity?
- Where will you fine the facts of T?
- Where will you find the reason providing insanity as a defence to those
with a mental disorder?
- Where will you find reference to the role of the jury in insanity and
automatism?
- Name one case from the sources which reverses the decision of the lower
court.
- Which two sources mention the case of Kemp?
- Which source[s] discuss the problem of ‘external factors’?
- Identify two problems with the current law on non-insane automatism.
Case Facts Ratio Area? Case Facts Ratio Case
8. T 24. DPP v Harper
Clarke 25. Thomas
Charlson 26 .Bilton
Johnson 27. Parks
Windle 28. Rabey
Codere 29. Broome v Perkins
Moyle 30. Narborough
Woolmington v DPP
Sutcliffe
Whoolley 32. AGs Ref no 3 of 1998
Summaries of Sources
Source 1: Extract adapted form the judgement of Lawton LJ in R v Quick [1973] QB 910
This source comes from the Court of Appeal and focuses on what is included in the phrase ‘disease of the mind’. Lord Lawton argues that the court should look at the cause of the condition and that if it is an external cause, then D may have the defence of automatism open to him. He also refers to a list of causes he thinks may help to promote a defence of automatism, and seems to confirm that automatism is not easy to argue, pointing out that if it is self induced it will be no defence. Lawton also focuses on the medical origins of Quick’s condition, and implies that its treatment is out of line with the disposal for those found NGRI.
Source 2: Extract adapted from Criminal Law Michael Jefferson 10th^ Edition 2011
This source comes from a textbook discussing the problems associated with the pleading of insanity. He begins by pointing out how few people plead insanity compared to those with a mental disorder, and suggests that this might show that the current law is ineffective. He also discusses the origins of the plea, and points out that one of the issues is that the defence is used to protect society, and focus on the legal definitions not medical ones. Finally, he discusses the problems of M’Naughten as precedent, and argues that even if it was not precedent when it was presented, the way it has been treated by the courts since means that it is as good as a statute in reality. In addition he also points out the reason for having a defence of insanity in the first place – to prevent from punishing those who are not able to accept true responsibility for their actions.
Source 3: Extract adapted from the judgment of Lord Lane CJ in Burgess [1991] 2 QB 92
This judgement from the Court of Appeal focuses on whether sleepwalking is classed as insane or non-insane automatism. Lord Lane summarises the role of the judge in deciding whether D can argue either defence to a jury. He considers whether the failure to control implied by sleepwalking is enough for a disease of the mind. In considering this he does say that the recurring danger theory is helpful, albeit not absolute as here there was no evidence that D definitely would perform the same act again. In deciding that sleepwalking was caused by an internal factor and thus a disease of the mind, he is distinguishing from Bratty. He confirms that the phrase ‘disease of the mind’ is a legal construct, and so up to the judges to interpret, although they need medical evidence to support their findings.
What Could Show Up & How to Answer
All of this is in addition to the information we covered at the start of this term on the powerpoint!
Question One:
This is assessed for AO2 and worth 12 marks (+4 AO3 marks). This means that you should spend about 15 minutes on
it. This will be based on one of the cases mentioned in the sources, and ask you to consider how it develops the law. There is a lot of detail on them in the sources
This means you will need to know what each case in the sources decides, and another case to show how it extends the law on the specified area and/ or where it comes from.
These cases are:
R v Quick 1973 QB 910 R v Sullivan 1984 AC 156 R v Hennessy 1989 1 WLR 287 M’Naughten 1843 All ER 229 R v Burgess 1991 2 QB 92
Bratty v Attorney-General for Northern Ireland 1963 AC 286 HL R v Kemp 1957 1 QB 399 R v T 1990 Crim LR 256
It is focusing on precedent really (and thus bringing in part of AS Law). It will ask you to consider “the ways which...” or the “extent to which...” or “evaluate the fairness of...”
Essentially, you need to say: What the critical point of law from the case is (using the source) and why How far it confirms the prior law How far it changes the law (with reference to at least one other case). Answer the question using the command word e.g. ‘significance, importance’ etc.
Example Question
“Explain the significance to the law on attempts of the case of R v Sullivan [Source 2, line 15]”
Examiner’s Tip: Aim to explain three critical points about the case in question, and relating it to a significant case. There aren’t any marks for describing the facts of the case alone!
It is important to note that no credit will be given for merely describing the narrative of the case; some sort of evaluative point must be made in order to achieve marks
Some sample Questions….
- Briefly explain the importance of R v Quick to the development of the law of automatism
- Examine whether the precedent in R v Kemp lead to justice or injustice.
- Discuss the extent to which the precedent in R v Burgess represents a development in the law on insanity
- Discuss the ways in which M’Naughten developed the law on insanity.
Question Two:
This is the BIG question, and is quite broad in its scope. It is worth 34 marks, which are split between AO1 and AO2. You should aim to spend about 40 minutes on it. You will be given a quote from one of the sources, and asked to do an extended critical comment on the area of the law. This focuses on the limits of the law, and current developments. It should be balanced and reasoned. Really you are looking at whether the development of the law has been reasoned and consistent, or subject to change.
This means that you need to also know the law beyond the sources
You must use the sources and should spend the first 5-10 minutes of answering to annotate the sources, and pick out relevant points. You need to understand exactly what each source is arguing – do they agree? Do they disagree? What precisely is their argument and how far does this fit with the current approach of the law. You don’t need to write them out, just refer to the source number and the line number e.g. source X, line XX. (Vague mentions of the source will attract no marks!)
You should treat this as a 50 mark essay question.
It will be a question on insanity and/or automatism, and will use a quotation from one of the sources as a start. You should start your response by putting this quote into context: what is the source arguing? Why are they arguing it?
You will need to look at what the law under the M’Naughten and/or Bratty is, and the difficulties that the judges have had in clarifying and interpreting this law.
You will need to use a range of quotes from the source, and add your own knowledge to the 8 cases in the source (in other words look to use about 15+ cases)
Example Question
In Source 2, line 17 the author states that “the definition of insanity… is a legal, not a medical one.”
Discuss how accurately the statement above reflects the interpretation of the law on insanity by the courts [34]
Examiner’s Tips: Focus on balance and reason in your answer, and make sure to identify the point of the question in your introduction
Vague references to the source will gain no credit – simply extracting the information without applying it to their own discussion will gain limited credit
It requires high level analysis of the discussion indicated in the question. The quote from a source is there to help candidates identify the theme of the discussion
Candidates should aim to maximise the AO2 mark – e.g. the law on insanity and automatism is based on the M’Naghten Rules 1843 and subsequent common law decisions. However, judges have had difficulty clarifying the definitions and have, at times, confused policy with the true interpretation of the defences and that understood by the medical profession.
Question 3
This will consist of three short problem questions to which you need to identify the relevant aspects of law, and then apply it to the situation. They are very straightforward! It should take you about 30 minutes to answer. They are worth 30 marks and this is divided up into 10 marks for AO1 and 20 for AO
Essentially, they are an extended version of the section C questions on G
Remember that most of the relevant definitions will be the sources
Example Question
Examiner’s Tips: You should be able to identify at least three points of application plus a case for each high for marks.
e.g. D may be able to argue automatism as by taking the medication his condition is caused by an external factor which is sufficicent as confirmed by Quick (Source 1, Line 21)
For the three scenarios in question 3 candidates should: structure their answer logically, apply the law sensibly to the facts identify for each individual aspect of the problem the key facts on which resolution of the problem is based define the appropriate law accurately; and then apply the law sensibly to the facts. reach sensible conclusions based on their application of the law use specific relevant Act sections or cases to support their definitions of the law (eg the M’Naghten Rules 1843 and the common law interpretations of this section; Remember that they are dealing with small individual problem scenarios rather than a large problem, as is the case in the option papers, and therefore the structure is almost created by the question Within their answer, in order to reach Level 5, discuss the relevant critical point(s), include at least one relevant case and provide sensible conclusions based on their application of the law stating what they think the most likely outcome would be for each scenario.
Section Three Questions
Discuss whether a defence of insanity or automatism is possible in each of the following situations:
(a) James thinks that all people with blue auras pose a threat to national security. He sees Sam walking past, who has a blue aura and stabs him in the back.
(b) Louis is very nervous about driving. To help him out, David hypnotises him. Whilst driving the car later, Louis becomes more and more reckless and causes a five car pile up through his driving. When questioned about it later, he can’t remember anything.
(c) Steven has been out drinking with Jon. Later that night, Jon awakes to find Steven attacking him with a metal bar. Steven has a history of sleepwalking and cannot remember attacking Jon.
Discuss whether a defence of insanity or automatism is possible in each of the following situations:
(a) Valentino is dumped by his girlfriend Amy, and is very depressed about it. His mum, not wanting to see him so down, tells him to take her anti-depressants. However, Valentino, who has never taken them before, reacts badly and becomes delusional, thinking his mum is a serpent sent to kill him, and stabs her.
(b) Dalvinder is cutting bread in his kitchen one morning. However, unknown to him, he has actually cut his girlfriend Larissa’s neck.
(c) Serephania suffers from diabetes and has forgotten to take her medication. She goes into town shopping, and begins to feel dazed. Whilst in one of the shops she takes a bottle of champagne and walks out without paying. She doesn’t normally drink.
Discuss whether a defence of insanity or automatism would be possible in each of the following situations:
(a) Susie has clashed heads in a hockey match and has been left feeling dizzy and dazed. After some treatment on the side of the pitch, she comes back on the pitch to continue playing and swings her stick wildly, hitting Stephanie and breaking her leg.
(b) Jerry suffers from diabetes, which he controls with medication. One day he takes his medication, but does not eat afterwards. Later whilst driving, he blacks out and crashes his car into Mike, killing him.
(c) Brian believes that god is talking to him through his teapot. Brian believes that god has told him to remove all chocolate biscuits from the local store, as they are interrupting god’s powers. Brian goes into his corner shop and walks out with all of the biscuits without paying.
What effect would the plea have?
D would have two routes:
- Argue he had no mens rea because of it (a little like the current law on automatism)
- Argue NG because at the time he was suffering from a ‘severe mental illness or subnormaility”
Coroners and Justice Act 2009 amending Homicide Act 1957
What did it do? Update the partial defence of diminished responsibility manslaughter to reflect more modern and medical terminology. BUT it only applies to murder.
What is the new partial defence of DR?
Writing a Model Answer: Explain the significance of R v Burgess [source 3] to the development of the law on insanity.
AO2 STRUCTURE:
1. INTRODUCTION:
Identify the area of law, and the importance of the case (what was decided and why)
The Court of Appeal upheld D’s conviction for s.18 GBH holding that the sleepwalking was a disease of the mind for the purposes of the M’Naughten rules (Source 3, line33-36), and therefore amounted to insanity in the law. D had wanted to argue that due to his sleep walking he was acting either automatistically or with no mens rea and so was not liable.
2. SECTION ONE
How does the decision link to the preceeding law? How far does/ did it confirm the existing law?
This conclusion may be unfair to D, as previous obiter from the House of Lords in Bratty (Source 5, line 9) appeared to make it clear that the judges viewed sleepwalking as a “self – evident” example of automatism. However, The Court of Appeal followed the precedent of Quick in determining that for automatism the problem must be caused by an external problem and here the cause was internal (the sleep disorder). They also cast some doubt on Lord Denning’s “prone to recur in violence” test, as they make it clear that is one consideration, but not the only consideration in determining whether a condition will be classed as insanity or automatism in the law (Source 3, lines 31-35).
3. SECTION TWO
How does this decision reflect changes in the law? Do later cases confirm it?
This approach to the law has been followed by the lower courts in the case of Lowe , who plead NGRI to the murder of his father on the basis of sleepwalking. However, the courts, both lower down the hierarchy, and in other countries have taken a different approach. In Parks, the Canadian Courts held that sleepwalking was in fact automatistic, as in this case the proximate courses were work anxieties, stress and depression which were outside issues. In addition, where there is evidence that D’s condition may have been caused by an external condition, then automatism can be left to the jury, as has happened in a number of first instance sexsomnia cases such as Ecott. This means that there appear to be two separate approaches by the courts to the same issue, depending on the cause which might be unfair to D.
4. CONCLUSION
Did it really change the law? Yes/ No and why.
Use the key words of the question.
Burgess, therefore, is significant as it confirms that if D is suffering from sleepwalking at the time of the incident, his only recourse is to plead NGRI under M’Naughten. It also confirms that in determining whether a disorder is automatistic or a disease of the mind the internal/external division is key, although this may lead to unfairness for some defendants.
Writing a model answer (3) “ No act is punishable if it is done involuntarily .” [Source 5, Line 4]
Discuss how far this statement accurately reflects the approach of the courts to the law on automatism..
Section What do I do? AO1 AO2 Source? Introduction (^) Quote into context & key ideas
Why do we provide a defence to those who act automatistically?
Lord Denning in Bratty , who wanted to plead automatism and TJ ruled could only plead insanity. Contesting the meaning of disease of the mind.
Main Key Case and reasoning for development
What is the current law and why?
Bratty (overruling Charlson ) “Act done by the body without control of the mind…”
Follows general presumption in the criminal law (voluntary act) Justified as a one off, and not a pattern of behaviour. Complete acquittal unfair compared with NGRI
External Cause
How do we differentiate between the NGRI and this? Is it fair?
Sneezing ( Whoolley ) Rape (causing PTSD) T Hypoglycemia ( Quick ) Blow to head, hypnotism, swarm of bees etc. Hill v Baxter Sleepwalking ( Bilton; Ecott; Parks ) More than ordinary stresses and disappointments of everyday life ( Rabey )
Based on policy considerations rather than medical facts. Links to lack of recklessness (D is not culpable as there was no risk they were aware of) and the ‘risk’ D poses to the public. However, is taking the substance a risk in the first place? Notion that external may turn internal. Medical evidence even where there is no medical term (doctors don’t use ‘automatism’) Arbitary nature and unfair to D – same underlying cause in the diabetes cases, just the proximate cause which has convicted them. Limited scope ( Narborough ) Complete loss of control
Broome v Perkins Attorney General’s Ref No2 of 1992
Very hard to prove complete lack – Law Commission argues fro a complete lack of ‘effective’ control as being more practical. Seems to be a case by case approach – T , which was allowed to go to the jury, seemed to have at least some control Out of line with NGRI, which requires impairment of control rather than lack. As a complete, rather than partial, defence it needs a higher standard to justify it. Burden of Proof. (^) D raise, 2 medical experts, P disprove beyond all reasonable doubt.
In line with traditional approach to burden of proof. Hard to meet the criteria to allow it to go in front of the jury. Difficult for juries to tell it and NGRI apart – are some D being found NG, when should really be NGRI ( Bilton ) Self Induced (^) Lipman Bailey Hardie
Overlap with intoxication and D intentionally taking risk. Seems more generous than elsewhere in law ( Bailey/Hennessey )
Takes into account the ‘impulsive’ action – Hardie. Reforms & Alternatives
Law Commission Scoping Paper
Insanity
Butler Committee alternative approach.
Argues it doesn’t protect us from danger (the diabetic who takes too much is prone to do it again) Butler – group as mental disorder, with two outcomes.
Conclusion (^) Refer back to the quote and comment on its accuracy
Examiner’s Report from January 201 3
General Comments This was the first sitting of the 2013 Special Study paper on insane and non-insane automatism. This series candidates have made fewer common errors than in previous series. Centres and their candidates, in the main, have become very aware of the skills and requirements for each question and have clearly realised that while the topic changes each year, the skills do not. Again, while the G154 Mark Scheme is not prescriptive, certain core elements to each question must be present in a candidate’s response to move up the mark levels. For example, utilising the Pre- release material during the exam prevents candidates from having to recite large chunks of information, and instead allows them to concentrate on evaluation and application.
Previous reports had warned centres on the use of prepared responses to question 2 in particular. This series saw a movement away from prepared answers to a more holistic and thought-provoking discussion of the topic which was very pleasing to see. Such responses were duly rewarded. Similarly, previous reports lamented the answers of candidates who spend a disproportionate amount of time on Questions 1 and 2, and as such, would struggle on Question 3 for example. It was pleasing to see that this practice had all but stopped.
Comments on Individual Questions
Question 1 This question looked at the relevance of Bratty v Attorney-General for Northern Ireland and, in particular, whether it developed the law in relation to non-insane automatism. Responses were generally strong given the range of information available in Source 3, 5 and 6. Responses in the vast majority of cases discussed the Critical Point: that of Lord Denning’s definition of non-insane automatism. Few responses discussed the true ratio in the case, but in so doing were not penalised.
The ratio in Bratty was not that of Lord Denning’s definition; however, his definition has become the most endearing and well-known feature of the case and therefore was the Critical Point. A few responses did discuss the true ratio in the case, and were rewarded for doing so. It was especially pleasing to see that candidates again this series went beyond the recognised Analytical Points and brought in (usually) a well-thought further relevant analytical point from their AS year which analysed Bratty.
In general, well prepared candidates used Sources 5 and 6 clearly as the basis of their response and were able to analyse the development of the law on non-insane automatism beyond the marks available purely from the Source.
Most candidates therefore, followed a clear pattern of response: 1 the discussion of Lord Denning’s definition; 2 his flip analysis of what he considered was not insanity through the continuing danger theory; 3 then – using the Sources – the issue of the last stand of the desperate and the problems of the burden of proof to great effect.
Also, given the 2012 Law Commission’s scoping paper, there was much opportunity to discuss the Commission’s thoughts on Bratty and its aftermath as a ‘further analysis’ point. Some responses missed the opportunity to gain marks by indulging in long discussions of Linked Cases where, in effect, the marks had already been achieved much earlier in their responses; and in the missed understanding of the question which asked for the development on the law of automatism, here meaning non-insane. Some candidates took the opportunity to discuss insane automatism and its impact on epilepsy, which while somewhat relevant, was not the main thrust of the question.
Question 2 Here the focus was on the unsatisfactory nature of the definition of insane automatism with a particular analytical focus on whether criticisms of the definition have been tackled through subsequent enactments and the common law. The best discussions, again, commented on the accuracy of the quote in the context of the overarching theme (role of judges, use of precedent and the development of law) with specific analysis as to whether ‘ the stigma of being labelled insane remains’. Responses which did not focus on the quote and, possibly, were pre-prepared, struggled to achieve the higher levels.
Stronger responses spotted the importance of contextualising the law through its origins of the M’Naghten Rules and how the subsequent common law ‘developments’ have assisted or hindered its consequent development. Such responses were also able to thoroughly discuss the M’Naghten sub-definitional areas. However, a significant minority of candidates based their entire response on the statutory enactments of 1991 and 2004 and ignored M’Naghten , which was unusual given the basis of the current law is that from M’Naghten. Such responses were unable to achieve above Level 2 or 3 without a discussion of the common law. Again, a golden opportunity was either used or completely missed in the Law Commission’s 2012 Scoping Paper on insane and non-insane automatism. Responses could nevertheless gain a Level 5 response without such a discussion, but would have been enhanced by this.
In the majority of responses the analysis and evaluation (AO2) achieved Level 4. There was a lot of discussion about the inadequacies of the defence coupled with some good links to the question. Again there was clear evidence that the sources seem to have been utilised more than in previous series. However, discussion (AO1) was frequently disappointing. On many occasions, responses defined M'Naghten but then failed to further define the elements from, for example, Clarke, Kemp and Windle. This was a limiting factor in AO1 marks as they didn't provide good definitions.
Question 3 Question 3 followed the customary three scenarios on the given topic area. Each part is worth 10 marks and based on three separate defendants. It is up to the candidates to conclude whether a conviction is or is not available in each scenario.
- For (a) a successful establishment of either defence would be unlikely. As Samia maintained a degree of control while driving this could prevent non-insane automatism being proved, and since there was no obvious internal factor, a discussion and/or a defence of insane automatism was irrelevant;
- For (b) a potential conviction for a non-fatal offence looked unlikely given that Molly’s reflex action to a wasp could give rise to a defence of non-insane automatism. However, if Molly had been reckless in her actions then she may be guilty of such an offence. Again, it looked unlikely that there was any evidence of insane automatism on the basis of the lack of an internal factor;
- For (c) since the hyperglycaemic background to Sylvia is similar to that of the case of Hennessy a thorough discussion of insane automatism was required.
Strong responses, in relation to the most appropriate defence, with a linked case(s) cited in support, and application to the scenario together with a correct conclusion would allow a candidate to achieve a high level response. The majority of marks on Question 3 are gained by application (A02) as opposed to knowledge and understanding of the law (A01). Questions attracted good responses, in general, with many able responses demonstrating both thorough knowledge and high level application skills.
Part (a) responses were mixed, perhaps as candidates began the thought process as to which defence was the most appropriate (or only) available defence. Therefore, in some cases responses simply discussed insane automatism ignoring the more obvious, although unavailable, defence under non-insane automatism. Some discussed both defences for this and each scenario, without thinking about the most likely defence, if any at all. At times there was also too much focus on case facts without any application. However, not many responses discussed the issue as to whether Samia’s acts were, in fact self-induced.
Part (b) was generally better answered than (a), again as nearly all responses realised it was a possible non insane automatism defence. Most discussed the external factor but often missed applying the definition in terms of reflex action. Again, not many responses discussed the issue as to whether Molly’s acts were, in fact, self-induced.
For Part (c) the responses were the strongest since nearly all discussed the correct defence of insane automatism. Responses went through the four elements of the M’Naghten Rules but missed opportunities for achieving marks by not applying the scenario or simply saying, for example: "There has to be a defect of reason and Sylvia has one". .
