Under both English and Zambian law, the defence of insanity applies if it is established that at the time of committing a crime, the accused was under the defect of reason from the disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 of England and Wales now provides several options for the judge once the insanity verdict is rendered. These options include a hospital order, a guardianship order, supervision and treatment order and/or an absolute discharge.
According to Lord Denning in the case of Bratty (1963) “automatism” on the other hand, was defined as “an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from a concussion or whilst sleepwalking.” If successfully pleaded this defence may lead to an acquittal—with the exception of strict liability offences.
Judges have been troubled with how to distinguish between the two defences. In some instances, an accused may plead insanity only to have judges replace it with automatism, and vice versa. Similarities exist between insanity and automatism. First, they both involve some element of an accused not knowing or if he knew not being able to control his actions. Secondly, they both involve a denial of either the mental element (mens rea)or the forbidden act (actus reus). Thirdly, both insanity and automatism involve some defect of the powers of reason. Fourthly, both of them may be caused by a disease of the mind or a “defect of reason”.
“Defect of reason” was in the case of Clarke (1972), an insanity case, defined as a deprivation of the power of reasoning. According to Quick (1973), another insanity case, a disease of the mind should derive from an internal source which may be Epilepsy (Bratty), or Sleepwalking (Burgess ). Specifically, the case of Bratty demonstrates that the accused may have laboured under a disease of the mind (therefore could plead insanity) leading to a defect of reason while at the same time having the same disease make his hands or feet, do acts which his minds has no control over. This would cause an overlap between insanity and automatism.
Courts in both Zambia and England have come up with some mechanisms of how to distinguish between insanity and automatism. The first difference lies with whether the defect of reason was as a result of an internal cause or an external one. If internal, then that cause should rightly be labelled as a disease of the mind and therefore qualify for the insanity defence. If on the other hand, the cause is external, such as violence, drug overdose, or alcohol, then the correct defence should be automatism (R. v. Cottle, 1958:R. v. Quick, 1973). Internal factors are derived from within the individual that robbed him of the power of reason, whereas the external factors are those forces outside him that lead to a defect of reason. The most troublesome cases in this regard are those involving diabetics. At what point does a case of diabetes become insanity or an automatism? The rule has been that if the defect reason was as a result of some medication such as insulin (external factor) taken by an accused then the right defence would be automatism, but if on the other hand an accused committed the crime when he had not taken any insulin or forgot to take food then his defect of reason is as a result of something internal and as such that should be case of insanity.
Zambian and English courts have used the permanency test as well. If the defect of reason is caused by something transitory then the right defence should be automatism but not insanity. The question becomes whether or not a transitory cause such as a concussion may actually lead to a more permanent disease. It is my submission here that the courts’ need to strictly differentiate between insanity and automatism are insufficient and mostly troublesome.
Another difference between insanity and automatism regards what each defence attempts to deny: mens rea for insanity and actus reus for automatism. An accused who pleads insanity acknowledges that he did not form the mens rea for the crime due to his mental defect. Even if he had done the necessary physical act of the offence, he did not have the mental fault. In pleading the defence of automatism an accused is denying theactus reus, that he did not do the forbidden act by reason of his inability to control his actions due to defect of reason or a disease of the mind. But even this overlaps as well, because automatism while regarded as denying the actus reus, seems in some cases to be a denial of mens rea too.
The consequences of pleading either of these two defences are radically different. If an accused pleads automatism, he would be discharged whereas if it is insanity he risks being labelled as insane and risks a lengthy term in a mental hospital. The only difference in pleading these defences is just whether an accused’s conduct was triggered by either an internal or an external factor. I submit that these two defences in Zambia as well as England, should be abolished and replaced with just one defence incorporating both of them, without the trouble of trying to distinguish between the external and internal factors.
By Elias Munshya