Book reviews: October 2022

Sleepwalking, Blackouts, Hypoglycaemia, and Other Issues

Ramya Nagesh

PUBLISHER: LAW BRIEF PUBLISHING
ISBN: 978-1913715892
PRICE: £49.99

The defence of automatism is advanced in a surprising number of cases. Ross v HM Advocate 1991 JC 210, together with Brennan 1977 JC 38 and Ebsworth 1992 SLT 1161 remain the leading cases. Essentially the defence requires to demonstrate, on the balance of probabilities, that the accused has a total alienation of reason leading to a complete absence of self control due to an external factor which was not self induced and which the accused could not reasonably have foreseen. It has been most commonly advanced in driving cases, and those where the accused has acted apparently irrationally causing criminal harm and it is claimed their drink was spiked.

This short book considers both insane and non-insane automatism. While it addresses the subject from an English law perspective, given the nature of the issues considered it offers helpful insight.

English legislation is broadly similar to that in Scotland in relation to the issue of insanity, for which, in Scotland, we now consider mental disorder, which is comprehensively dealt with at part 6 of the Criminal Procedure (Scotland) Act 1995.

The author considers the approach practitioners ought to take when presented with a case of someone who seeks to advance a defence based on mental ill health at the time of the offence, the burden and standard of proof, the outcomes available to the court, and the means by which the court can impose those. At the end of the book there is a handy checklist of issues to consider and evidence to be led, as a prompt to those perhaps unfamiliar with the subject matter.

The book is of interest to Scottish practitioners for the brief chapters where the author considers what he describes as the special cases of non-insane automatism, especially sleepwalking, diabetes, epilepsy, undiagnosed sleep apnoea and pre-menstrual syndrome.

The author gives instances where the court has accepted or rejected the defence of non-insane automatism but, in doing so, also demonstrates the nuanced decision making as to whether the defence is insanity (as in an acquittal based on a mental disorder) or non-insane automatism. There is an interesting discussion on the issue of the weight to be placed on the recurrence of such behaviour. For example, which defence can be advanced by the persistent sleepwalker who knows that this condition is induced by the ingestion of alcohol, or the person who sleepwalks but for which there is no external trigger?

The author highlights the importance of public policy considerations in this area of the law. There is likewise an interesting discussion of the divergent approaches of the House of Lords and the Supreme Court of Canada to these defences.

While there is no direct reference to Scots law or case law, the value of the book to Scottish practitioners is an appreciation of the approach taken by other jurisdictions to an area of complex law and fact, together with an understanding of the issues the practitioner ought to consider.

David J Dickson, solicitor advocate