Editorial Committee of the Cambridge Law Journal

Criminal Law. Automatism and DrunkennessAuthor(s): Glanville WilliamsSource: The Cambridge Law Journal, Vol. 32, No. 2 (Nov., 1973), pp. 183-185Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505668 .

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C.L.J. C.L.J. Case and Comment Case and Comment 183 183

canons of construction which led inevitably to the conclusion that this was an offence of a political character. It was possible for them to refer to the refusal in 1934 of the Italian courts to permit the surrender to France of a Yugoslav charged with the assassination of the Yugoslav sovereign in France (Annual Digest, 1933-34, Case no. 158). As Lord Simon pointed out, the existence today of politically motivated offences, " political terrorism " in certain forms, created a problem, which could be dealt with only by alter- ing the existing rules. In this Lord Simon has considerable authority on his side. No publicist appears to have deliberately excIuded

offences directed against states other than the requesting state from the category of political oSences. The place of the offence has never figured as an element in the concept of a political offence. It is because of this that when international conferences harre met

to consider " terrorism," such as the kidnapping of diplomats on

the territory of third states, highjacking of aircraft, etc., they have

tended to approach the problem by establishing an exception to the

principle of non-surrender of political offenders. Thus at the recent conference of the International Institute of Criminal Sciences in

Sicily in June 1973 various proposals for a draft convention deaIing with " terrorism " provided tl2at if an offence directed against the authorities of one state took place on the territory of a thIrd states

then it should cease to be a political offence. The decision of the House of Lords seems to be unsatisfactory

largely because the location of an oSence is in days of modern high-speed communication too accidental an element to play a

decisive role in determining whether a person charged with a

politicaI offence should or shouId not be extradited. PAUL O HIGGINS.

CRIMINAL LAW-AUTOMATISM AND DRUNKENNESS

The decision in Quick [1973] 3 W.L.R. 26 cIarifies the law of non-insane automatism to some extent, but attempts to impose an illogical limitation upon it. The actual decision was that auto- matism resulting from hypoglycaemia was a defence to a charge of assault, and was not to be regarded as a defence of insanity. Quick was a diabetic who had taken insulin, as prescribed on the morning of the assault, had drunk a quantity of spirits and eaten little food thereafter. His conviction was reversed on appeal because he had not been allowed to set up the defence of non-insane automatism by the trial judge.

What is the distinction between insanity (or 4'disease of the

canons of construction which led inevitably to the conclusion that this was an offence of a political character. It was possible for them to refer to the refusal in 1934 of the Italian courts to permit the surrender to France of a Yugoslav charged with the assassination of the Yugoslav sovereign in France (Annual Digest, 1933-34, Case no. 158). As Lord Simon pointed out, the existence today of politically motivated offences, " political terrorism " in certain forms, created a problem, which could be dealt with only by alter- ing the existing rules. In this Lord Simon has considerable authority on his side. No publicist appears to have deliberately excIuded

offences directed against states other than the requesting state from the category of political oSences. The place of the offence has never figured as an element in the concept of a political offence. It is because of this that when international conferences harre met

to consider " terrorism," such as the kidnapping of diplomats on

the territory of third states, highjacking of aircraft, etc., they have

tended to approach the problem by establishing an exception to the

principle of non-surrender of political offenders. Thus at the recent conference of the International Institute of Criminal Sciences in

Sicily in June 1973 various proposals for a draft convention deaIing with " terrorism " provided tl2at if an offence directed against the authorities of one state took place on the territory of a thIrd states

then it should cease to be a political offence. The decision of the House of Lords seems to be unsatisfactory

largely because the location of an oSence is in days of modern high-speed communication too accidental an element to play a

decisive role in determining whether a person charged with a

politicaI offence should or shouId not be extradited. PAUL O HIGGINS.

CRIMINAL LAW-AUTOMATISM AND DRUNKENNESS

The decision in Quick [1973] 3 W.L.R. 26 cIarifies the law of non-insane automatism to some extent, but attempts to impose an illogical limitation upon it. The actual decision was that auto- matism resulting from hypoglycaemia was a defence to a charge of assault, and was not to be regarded as a defence of insanity. Quick was a diabetic who had taken insulin, as prescribed on the morning of the assault, had drunk a quantity of spirits and eaten little food thereafter. His conviction was reversed on appeal because he had not been allowed to set up the defence of non-insane automatism by the trial judge.

What is the distinction between insanity (or 4'disease of the

This content downloaded from 185.44.77.82 on Wed, 18 Jun 2014 15:32:56 PMAll use subject to JSTOR Terms and Conditions

184 The Cambridge Law Journal [1973]

mind ") and this state of " automatism "? It is not a medical but

a legal distinction. The Court of Appeal stated that " a malfunc-

tioning of the mind of transitory effect caused by the application

to the body of some external factor such as riolence, drugs, includ-

ing anaesthetics, alcohol and hypnotic influences cannot fairly be

said to be due to disease." This can be said to explain many of

the cases, but it is too narrow: epilepsy does not fall within the

principle, yet the court accepted that if a person kills or commits

some other criminal act purely by accident during a petit mal attack,

he is entitled to an ordinary acquittal. On the other hand in Bratty

[1963] A.C. 386 it was held that a killing during the psychomotor

stage of an epileptic attack should result in a special verdict. Both

are forms of epilepsy; in both the killer did not know what he was

doing; but in the first the circumstances of the killing may show

that it was purely an unhappy chance in extraordinary circum-

stances, while in the second it was bizarre conduct of a dangerous

character that may be repeated. This way of looking at the matter

supports Lord Denning's view in Bratty that the question is whether

the violence is likely to be repeated. In reality the whole doctrine

of non-insane automatism is a dodge for getting out of mandatory

commitment, which is thought to be an inappropriate outcome.

The court imposed a limitation upon the defence, obiter, in the

following words. " A self-induced incapacity will not excuse, see

Reg. v. Lipman, nor will one which could have been reasonably

foreseen as a result of either doing or omitting to do something, as,

for example, taking alcohol against medical advice after using

certain prescribed drugs, or failing to have regular meals while

taking insulin." Although this rule accords with public policy, it

cannot be reconciled with established legal principle, because in a

crime requiring mens rea any evidence negativing the mens rea mllst

be a defence to the charge. This is the whole basis of the defence

of automatism. It can make no difference whet}ler the condition

was brought about by the defendants fault or not. Lipman was a

special case because it was a charge of manslaughter, which does

not require mens rea in the usuaI sense. In reIation to intoxicatIoIl the courts continue to pursue their

illogical but, no doubt, politic way, deaf to all law review criticism.

They do not much mind intoxication getting a man off a charge of

murder or wounding with intent, but he must be convicted of some-

thing, so they say that intoxication is no defence to a charge of

assault (Bolton v. Crawley [1972] Crim.L.R. 222). To justify this

they seize upon one of the passages in Beard and assert that

drunkenness is a defence only in crimes involving a "specific "

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C.L.J. C.L.J. Case and Coniment Case and Coniment 185 185

intent. If we ask what ' specific " meansX the answer is that the

courts adopt a Humpty Dumpty attitude. Murder (Dodson [1973]

Crim.L.R. 519) and theft require a specific intent, notwithstanding

that no intent is alleged specifically in the indictment, and so do

handling stolen goods and endeavouring to obtain money on a forged

cheque (Durante [1972] 1 W.L.R. 1612), but assault and taking a

conveyance (MacPherson [1973] Crim.L.R. 457) do not, notwith-

standing that they both involve a mental element.

The solution of these difficulties, it is suggested, is, first, the

abolition of mandatory commitment, so that the legal distinction

between insanity and automatism can be eliminated, and dis-

cretionary commitment applied to both; and, secondly, the creation

of an offence of voluntary self-incapacitation. GLANVILLE WILLIAMS.

AFFRAY - THE GAME ANY NUMBER CAN PLAY

AFFRAY, like conspiracy, seems to be a major 'sgrowth area ' in

criminal law. In Button [1966] A.C. 591, the House of Lords

removed the supposed l}mitation that the offence be committed in

a public place. In Scarrow (1968) 52 Cr.App.R. 591, the Court of

Appeal removed the supposed limitation that there be untawful

violence on both sides, and held it sufficient for there to be un-

lawful violence on one side only-as where A and B, fighting on

the same side, attack C, who fights back lawfully in self-defence, or

refuses to fight at all. And now in Taylor [1973] 3 W.L.R. 140, the

House of Lords has removed the requirement that there be at least

two persons fighting unlawfully (whether facing each other in

" singles " or in " doubles " side by side), and has ruled that the

offence can be committed when one person fights unlawfully on his

own as where he attacks another who defends himself lawfully or

fails to fight at all. Seen in isolation, Taylor looks a respectable decision. It is true

that ]3Iackstone and later writers limit affray to " the fighting of

two or more persons," but ancient writers, such as Lambard,

generally do not. (The exception here is Dr. Cowell, who mentioned

it in the Snterpreter in 1607; but since this work was suppressed by

proclamation and burnt by the public hangman three years later,

perhaps the courts were right to ignore it! ) Since the House of

Lords had already rejected Blackstone's new-fangled views on

affray in Button, it was consistent to do so again- in Taylor. Taylor

aIso makes practicaI sense. To require two persons fighting un-

lawfully would enable a man to answer a charge of affray by saying

intent. If we ask what ' specific " meansX the answer is that the

courts adopt a Humpty Dumpty attitude. Murder (Dodson [1973]

Crim.L.R. 519) and theft require a specific intent, notwithstanding

that no intent is alleged specifically in the indictment, and so do

handling stolen goods and endeavouring to obtain money on a forged

cheque (Durante [1972] 1 W.L.R. 1612), but assault and taking a

conveyance (MacPherson [1973] Crim.L.R. 457) do not, notwith-

standing that they both involve a mental element.

The solution of these difficulties, it is suggested, is, first, the

abolition of mandatory commitment, so that the legal distinction

between insanity and automatism can be eliminated, and dis-

cretionary commitment applied to both; and, secondly, the creation

of an offence of voluntary self-incapacitation. GLANVILLE WILLIAMS.

AFFRAY - THE GAME ANY NUMBER CAN PLAY

AFFRAY, like conspiracy, seems to be a major 'sgrowth area ' in

criminal law. In Button [1966] A.C. 591, the House of Lords

removed the supposed l}mitation that the offence be committed in

a public place. In Scarrow (1968) 52 Cr.App.R. 591, the Court of

Appeal removed the supposed limitation that there be untawful

violence on both sides, and held it sufficient for there to be un-

lawful violence on one side only-as where A and B, fighting on

the same side, attack C, who fights back lawfully in self-defence, or

refuses to fight at all. And now in Taylor [1973] 3 W.L.R. 140, the

House of Lords has removed the requirement that there be at least

two persons fighting unlawfully (whether facing each other in

" singles " or in " doubles " side by side), and has ruled that the

offence can be committed when one person fights unlawfully on his

own as where he attacks another who defends himself lawfully or

fails to fight at all. Seen in isolation, Taylor looks a respectable decision. It is true

that ]3Iackstone and later writers limit affray to " the fighting of

two or more persons," but ancient writers, such as Lambard,

generally do not. (The exception here is Dr. Cowell, who mentioned

it in the Snterpreter in 1607; but since this work was suppressed by

proclamation and burnt by the public hangman three years later,

perhaps the courts were right to ignore it! ) Since the House of

Lords had already rejected Blackstone's new-fangled views on

affray in Button, it was consistent to do so again- in Taylor. Taylor

aIso makes practicaI sense. To require two persons fighting un-

lawfully would enable a man to answer a charge of affray by saying

This content downloaded from 185.44.77.82 on Wed, 18 Jun 2014 15:32:56 PMAll use subject to JSTOR Terms and Conditions