Criminal Law. Mark Thomas
of Lords – Conviction upheld
Point of law: Defences of insanity and automatism
In Bratty v AG for Northern Ireland [1963] AC 386, the defendant strangled a woman whilst giving her a lift in his car and claimed that at the time of the incident he was not conscious of his actions.
The House of Lords was confronted with the question as to whether a defendant could raise the defence of automatism (where the body acts without control from the mind) to a case of murder. The decision focuses on the distinction between insanity and automatism, a matter we shall return to in Chapter 7; however, for present purposes, it is useful to cite the comment made by Lord Denning in relation to voluntary conduct. In particular, his Lordship stated:
The requirement that [the act of the accused] should be a voluntary act is essential … in every criminal case. No act is punishable if it is done involuntarily.
The most cited example of involuntary conduct is that given by Lord Goddard CJ and Pearson J in Hill v Baxter [1958] 1 QB 277. Their Lordships gave the example (and it was only an example despite the belief of many that Hill v Baxter actually concerned a case involving a swarm of bees) of a man charged with dangerous driving. His driving would be involuntary if he was suddenly stung by a swarm of bees. Under these circumstances, their Lordships held that the actus reus of the offence would not be voluntary given that the defendant would be acting in a state of ‘automatism’ (see Chapter 7) and thus would not be liable for dangerous driving.
Generally, therefore, involuntary conduct will not result in a criminal offence being committed. Note, however, that there are circumstances, known as cases of ‘situational liability’, where voluntary/involuntary conduct on the part of the defendant is irrelevant. This is dealt with at 2.5.
2.4.1.3Distinguishing between the two
From the above examples, you may feel that the distinction between voluntary and involuntary conduct is quite straightforward. However, consider this third example and see if the distinction is as easy to make.
example
Jill dares Jack to jump from the window onto the car below. Jack is too scared to do so and refuses. Jill then threatens Jack with violence should he not jump. As a result of the threat, Jack jumps and damages the car below.
On one view, Jack is liable as his conduct was willed and voluntary as he jumped from the window; he was not pushed or thrown. On a second view, Jack is not liable as he was forced from the window in fear of his safety. The answer is that Jack’s conduct remains voluntary. Although forced to jump from the window as a result of the threat, Jack’s actions are still conscious, willed and rational. He may be able to rely on a defence to a crime, such as duress, but his actions are still deemed, until duress is proven, to be voluntary despite the threat or coercion. See Chapter 7 for a discussion of the law of duress.
A second example may assist your understanding further.
example
Jill threatens to push Andy off a wall should Jack not go and steal an item of jewellery for her. Jack does so.
In this case, Jack’s conduct remains voluntary despite the threat to Andy. You may consider this to be wrong given that Jack has, essentially, no choice: he either complies with Jill’s threat or Andy is hurt. However, despite the threat, his conduct remains free, willed and voluntary. Again, he may be able to rely on a defence to any crime committed, but his conduct would remain voluntary. In summary (see Table 2.4), it is essential that you do not confuse physical compulsion with involuntary conduct.
Table 2.4Voluntary or involuntary conduct
| Example | Voluntary | Involuntary |
| Being thrown from a window | X | |
| Jumping from a window as a result of a threat to oneself or another | X | |
| Damaging property after suffering an allergic reaction to a bee sting whilst behind the wheel of a car | X | |
| Being pushed into a person’s garden, damaging their fence | X | |
| Being dared to ‘garden-hop’ (running through other peoples’ gardens) and accidentally damaging a fence in doing so | X |
2.4.2Positive acts
A positive act is an action taken by the defendant in relation to specific conduct. For example, the acts of stabbing another and stealing a bottle of whisky from a supermarket are positive acts. Both of these examples show a circumstance where the positive act is ‘direct’, in that the defendant has physically and personally undertaken such conduct.
Positive acts, however, can also be indirect. See, for example, the case of DPP v K (a minor) [1990] 1 All ER 331, where a schoolboy placed acid that he had taken from the science lab into a hand-drier in the boys’ toilets. The victim, another pupil, used the hand-drier and was scarred by the acid. The Divisional Court held that the application of force need not be direct, but may also be indirect.
A second example is that of R v Martin (1881) 8 QBD 54. In this case, the defendant, upon placing an iron bar across the exit of a theatre and turning out the lights to that stairwell exit, shouted ‘fire’, which resulted in the injury of several people. The defendant was charged with inflicting GBH contrary to s 2 of the Offences Against the Person Act 1861, which the defendant argued could not be committed by an indirect act. The Court for Crown Cases Reserved ruled that an indirect application of force was sufficient to establish liability for GBH. There was no requirement for ‘face-to-face’ contact.
2.4.2.1Distinguishing positive acts from voluntary conduct
At 2.4, it was made clear that one must distinguish positive acts from voluntary conduct. Although the two concepts go hand-in-hand, they must be considered separately to account for their position in the criminal law.
To help with this idea, consider the case of R v Savage; DPP v Parmenter [1991] 3 WLR 914 (particularly, the facts of R v Savage).
case example
Charge: Inflicting GBH (OAPA 1861, s 20)
Case progression: Crown Court –Guilty
Court of Appeal – Appeal allowed but replaced with charge of ABH
House of Lords – Conviction upheld
Point of law: Requirement of mens rea to cause ABH
In R v Savage; DPP v Parmenter [1991] 3 WLR 914, the defendant threw a glass of beer over her husband’s ex-girlfriend. The glass slipped from the defendant’s hand and resulted in cuts to the wrist of the victim when the glass smashed. The defendant professed that she never intended to throw the glass; she merely intended to humiliate the victim by throwing the beer. The defendant was convicted of inflicting GBH in the Crown Court.
On appeal, the House of Lords was faced with the question