Year : 2018 | Volume
: 2 | Issue : 2 | Page : 139--143
Autopilot, criminal responsibility, and diversion: A case series
Ajaykumar Vishwasrao Pawar
Consultant Psychiatrist, Sheffield Health and Social Care NHS Foundation Trust, UK
Ajaykumar Vishwasrao Pawar
Forest Lodge, 5, Forest Close, Sheffield, S35 0JW
Intent or mens rea and the Act or actus reus are essential components of a crime and absence of one can lead to complete acquittal of the defendant. I report two cases where there are broad similarities in the nature of the mental disorder, but the intent was lacking in one of the cases. The interplay between symptoms of mental illness, presence of intent, and other relevant factors can lead to differing outcomes when the cases go to the court. An opinion from a psychiatrist is valuable in such cases and indeed written and/or oral evidence from a psychiatrist is required under the mental health act in the UK before certain decision can be taken in the court.
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Pawar AV. Autopilot, criminal responsibility, and diversion: A case series.Ann Indian Psychiatry 2018;2:139-143
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Pawar AV. Autopilot, criminal responsibility, and diversion: A case series. Ann Indian Psychiatry [serial online] 2018 [cited 2019 Jul 19 ];2:139-143
Available from: http://www.anip.co.in/text.asp?2018/2/2/139/246540
The trend in the car industry is toward automation. Tesla's model 3, for example, has all the hardware necessary for full self-driving capability at a safety level substantially greater than that of a human driver. Why is it that then if you kill somebody in a Tesla car, you, the human, is blamed for it? Despite all this automation, the car manufacturers insist that the car is simply the body and that the mind driving it belongs to the human occupant. For a crime to be committed, you need both action (the crime) and the intent to commit a crime. What if your body commits a crime and your mind was elsewhere because of the fact that you suffer from a mental disorder or a mental illness?
There are many examples of automatic behavior, such as complex partial seizures or sleepwalking. A person in an alcoholic blackout will outwardly show normal behavior, but his/her mind and body are not together during the blackout. A person who commits crime during an alcoholic blackout will be held responsible for it on the basis that he/she got drunk willingly knowing that s/he will get to a stage where his/her mind and body would separate. Is that person's mind still responsible for the crime committed by his/her body if the blackout or the automatic behavior resulted from intoxication for which the person was not responsible? Involuntary intoxication may cause a transient mental disorder which may impair the defendant's ability to form an intention to commit crime and in some cases, such intention may be entirely absent.
In the UK, the legal concept of automatism is not the same as the clinical concept of automatic behavior. Automatism is argued in cases where although the person is capable of action (the crime itself), s/he is not conscious of what s/he is doing or in other words, the mind does not go with what the body is doing. In essence, there is no intention to commit a crime and therefore “mens rea” is absent. The reader is referred to the UK law commission paper for a comprehensive account of this defense. A psychiatrist may be approached by either defense solicitors or the prosecution to provide oral and/or written evidence to comment on the viability of defense of automatism or insanity.
I wish to report two cases where circumstances were broadly similar, but the medicolegal outcome was very different.
The defendant (AB) was a university student in his early 20s. A court report was sought to explore the viability of the defense of automatism. He was facing charges of indecent exposure, an assault and a sexual assault, and was on bail in the community.
AB had an uneventful upbringing with no family history of mental illness. Just prior to being charged with the current offences, AB was living in a rented house with four other friends. He was a university student. He enjoyed his life in general and there was no evidence to suggest any premorbid mental disorder. His substance use history included alcohol drinking about 10–30 units spread over the weekend (Saturday and Sunday) and occasional use of cocaine in the context of nightclub visit. There was no history of withdrawals or any other features of alcohol dependence. He had stopped smoking cigarettes and using cannabis some 6 months prior to his arrest, in order to improve his performance in sports.
One Saturday 6 pm, he started drinking vodka with his friends at his house with a plan to visit one other group of friends living in a different part of the city. AB, from experience, knew that his limit was about 15 units of alcohol in one sitting and had brought his own half bottle of vodka (13.5 units) prior to starting drinking. He remembers having about 5 units between 6 and 8 pm. The group then left at 8 pm to visit their other friends. AB has no recollection at all of what happened 8 pm onward. He woke up half naked in police cells at 7 am next morning to be told that he was being charged with a number of offences.
Information on AB's behavior between 8 pm and 7 am next morning was available from the account of his friends, victims, and a security guard with witness statements from police officers who attended the scene of crime. AB's behavior outwardly was reported by his friends as normal for somebody who had drunk alcohol. At about 12 midnight, he decided to go home and that was the last his friends saw him. The offences took place at 1 am about a mile away in a block of flats occupied by university students. It was reported that AB had discarded his clothes and was sitting naked with a sheet wrapped around him in the lounge on one of the floors. When approached by a female and a male student, he stood up with the result that the sheet fell down. He apparently then rubbed himself against the female student and assaulted the male student who tried to stop him. The security guard then led him downstairs and he was later arrested by police officers. Throughout this episode, AB was reported as talking incessantly and nonsensically with odd religious phrases and foreign sounding words, stumbling and once falling down, and there was what appeared to be excrement smeared around his face. Both the security guard and the police officers suspected either a mental illness or intoxication of some sort. He remained disinhibited and irritable in the police car and at the police station but did fall asleep later in police cells. AB's mental state and behavior was normal on waking up the next morning and such behavior has not recurred.
AB had no recollection whatsoever of what he did between 8 pm and 7 am. It was clear from objective information that his speech and behavior were extremely disordered for a period of 4–5 h, roughly between midnight and 5 am. It was not possible to conclusively say that he was experiencing delusions or hallucinations. Given the self-limiting nature of his disordered behavior, schizophrenia was excluded. He had consumed alcohol though the exact amount was not known, but it could be postulated that his disordered behavior was the result of an alcoholic blackout. The third hypothesis was poisoning, where unknowing to him, he was given a substance/drug to which he reacted with a short episode resembling acute psychotic breakdown. He had not knowingly taken any drug and though his friends did not report any drug use on his part, it must be borne in mind that there were several people at the party who were using drugs.
It is well known that for the most part, behavior during an alcoholic blackout is outwardly normal and that alcoholic blackouts are more likely to occur late in the course of alcohol dependence. There was no history suggestive of alcohol dependence. Hence, the only possibility could be that he was probably given a substance in a drink which led to him having an episode of disordered behavior.
This case concerns a 50-year-old male (IW) with no previous mental illness and no family history of mental illness. His education has been minimal and employment history was patchy. He had a history of a 12-year relationship which broke down some years ago. He has two children with almost no contact with them. His problem was his extensive polysubstance misuse which started at the age of 19 with the use of intravenous heroin, cocaine, and alcohol spending in excess of £200 a day on drugs.
There were two separate episodes of mental illness and it was the second episode which led to his contact with forensic psychiatric services. During the first episode, IW had presented with a history of hearing voices for around 2 months. He required detention under the Mental Health Act. During this admission, he was reported as being odd and bizarre in his behavior. He had also been aggressive which had required physical restrain. Given his extensive substance misuse history and late onset, a diagnosis of substance-induced psychosis was made. He responded quickly and completely to oral antipsychotics and was discharged within a matter of days. He however unfortunately became noncompliant with medication and returned back to substance misuse.
Some 2 months after his discharge from hospital, the police were called by his neighbors to investigate a report that he had set a fire to his flat. He was later arrested and charged with “arson with intent to endanger life.” He was remanded to prison. When assessed in prison, he reported third-person auditory hallucinations. IW responded very quickly to antipsychotic medication and was largely free of symptoms in a matter of days. In subsequent interviews, IW stated that in the minutes and hours before the fire setting, he had been hearing voices of children taunting him. He believed at the time that they meant to harm him. He felt locked in his flat with nowhere to go for safety. He thought that his life was in danger. Initially, he wrapped his television set in towels and was intending to throw it at the children. Later, he abandoned this plan as it would have involved him opening his front door. He therefore decided to start a fire in his flat in the hope that the flames and the smoke would drive the children away which would then allow him to escape to safety. The fire was noted by neighbors and put out in time before anybody was hurt. IW later spent several months in a secure psychiatric inpatient unit. His symptoms did not recur and the diagnosis remained that of substance-induced psychosis.
We see several common features in both cases. There is no past psychiatric history, there is presence of an episode of mental disorder precipitated in both cases by substance misuse, and criminal offences have taken place during the period of abnormal mental state. Long-term treatment was not required in both cases and symptoms have not recurred. Both cases required written evidence to the court from a psychiatrist and this evidence in turn influenced the subsequent criminal justice outcome.
There are also significant differences in both cases. AB suffered from an episode of mental disorder as a result of “involuntary intoxication.” IW, on the other hand, had a long history of “willful or voluntary” substance misuse as well as previous episode of drug-induced psychosis. The outcome in both cases therefore was different. In the case of AB, the charges were dropped by the prosecution on the basis of the psychiatric evidence. In the case of IW, an order was made by the court for his treatment in a secure psychiatric facility. This difference in outcome requires further discussion.
From a legal perspective, AB could be said to have been behaving automatically, in that although capable of action, he was not conscious of what he was doing. In other words, his body and mind were not together. He had no recollection of any events. The victims were unknown to him. The location of offences was unknown to him. There was no possible motive, for example, revenge or acquisitive offending (e.g., theft). The behaviors displayed by him were very much out of character for him. The episode resolved spontaneously and did not recur. He had no previous history of criminal behavior. It was further clear from witness statements that he was clearly not in a condition to form any intent. In short, he displayed complex and disordered behavior, but his mind was not with his body.
Automatism and insanity are legal concepts and bear little relationship to modern psychiatric practice and modern classificatory systems. Legally, automatism is divided into sane and insane automatisms. Sane automatisms are thought to be one-off events caused by a factor external to the person, for example, head injury concussion or hypoglycemia caused by insulin. Insane automatisms are events caused by factors internal to the person and can recur, for example, postepileptic states and sleepwalking. Voluntary intoxication is not generally a defense in court, but involuntary intoxication can be a defense where it could be shown that there was no intent. Thus, the position taken was that AB had engaged in criminal behaviors subsequent to involuntary intoxication and that he did not form the necessary intent to commit the crimes. The court report led to the prosecution closing the case against him. A criminal record can substantially reduce one's chances of future employment and moreover conviction for a sexual offence will lead to a number of other restrictions in life. This was therefore a fortunate outcome for AB.
IW, on the other hand, had retained his memories of the event. He knew who the intended victims were, where he was, and had a motive in setting a fire, namely to frighten away his “imagined persecutors.” The experience of hallucinations and feeling persecuted was not unusual for him. This was his second episode of mental disorder. He had previous criminal history. From subsequent interviews, it was clear that he knew what he was doing, albeit he was driven to do what he did by his abnormal mental state. It cannot be argued that “his mind was not with his body.”
Nonetheless, IW's offence was clearly driven by his psychotic experiences and this required recognition by the criminal justice system. It did not and does not matter that willful use of high amounts of cocaine had caused the psychosis. What mattered was that he was suffering from a mental disorder. Not all who use substances develop a psychotic illness. Arson (fire setting) is an imprisonable offence and when a mentally disordered person commits an imprisonable offence, provisions exist in the Mental Health Act in the UK to divert offenders from prison to an inpatient psychiatric facility. The rationale is that punishment in the form of imprisonment serves little purpose in such cases, but treatment of the risk factor for the offence, namely mental disorder, is more likely to ensure public safety.
The relevant legal provisions in India are to be found in Sections 84, 85, and 86 of the Indian Penal Code 1860. Section 84 states that “Nothing is an offence, which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” This is akin to the insanity defense in the UK, also known as McNaughten Rules. In the UK, for such defense to be successful, “it must to clearly proved that, at the time of committing of the act, the party accused was laboring under such a defect of reason, from disease of 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 what he was doing was wrong.”
The legal wording, for example, unsound mind, as it appears in Section 84 of the Indian Penal Code, may appear vague to us practicing psychiatrists who are used to the diagnostic terminologies that appear in various classificatory systems. The meaning of the phrase “unsound mind” was made clear by the Supreme Court in India in the case of Surendera Mishra versus State of Jharkhand. The Court confirms that the term “unsoundness of mind” is not defined in the Indian Penal Code. The Court further concludes that the term has been treated as equivalent to “insanity” and that the term “insanity” itself carries different meaning in different contexts and describes varying degrees of mental disorder. Simply having an “unsound mind” will not be a defense. The court in the case of Ratan Lal versus State of Madhya Pradesh concluded that “the time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the appellant.”
However, the provisions under Section 85 and 86 of the Indian Penal Code are more relevant for our purposes here. Section 85 states that “Act of a person incapable of judgment by reason of intoxication caused against his will.—Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.” AB would have fallen under these provisions in that he was clearly incapable of knowing the nature of the act and thus, the view taken would have been that no offence had occurred. Indeed Section 85 differs from Section 84 in only so much that a person needs to be “involuntarily intoxicated” to fall under the provisions of Section 85.
As stated before, voluntary intoxication will not be a defense and this is made clear in Section 86 of the Indian Penal Code. It states “Offence requiring a particular intent or knowledge committed by one who is intoxicated-In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.” Section 86 was applied in the case of The Public Prosecutor versus Budipiti Devasikamani where it was held that, in a case of fire setting (much like the case of IW discussed here) “…. the evidence makes it clear that, in spite of the ganja smoking, the accused had the requisite criminal intent, because as soon as he put the torch to the thatch he ran away. He knew that the act he was doing was a wrongful one and from this knowledge we can assume that he must have had the criminal “intent” requisite for the offence.”
IW's case on the other hand would have been dealt with under the Mental Health Care Act 2017, just in the way that, in the UK, it was dealt with under the Mental Health Act 1983, as amended in 2007, and he was diverted to hospital. The provisions to divert a mentally ill offender into hospital are contained in the Part III of the Mental Health Act 1983 (UK) and in section 102–105 of The Mental Healthcare Act 2017 (India). The role of psychiatrist may include assessment, giving opinion on fitness to plead/stand trial, and giving conclusions on diagnosis and providing recommendations for sentencing. Use of such legal provisions ensures treatment of mentally ill persons in an appropriate setting and makes it more likely that the risk factors behind offending are treated. This in turn ensures good outcome both for the patient and the general public.
For us practicing doctors, the relevant issue here is how the appellant (who may be our patient) may go about proving that he was of unsound mind at the time the said crime was committed. Comprehensive documentation becomes important here. In the case of Sudhakaran versus State of Kerala, the Court was very critical of the documentation stating that “It is true …. that the appellant had come for consultation. However, no records were produced as to what treatment had been given to him. Even the out-patient ticket was not produced. Ultimately, this doctor admitted that he cannot say that the appellant had come there for psychiatric treatment. He did not even remember the medicine which had been given to the appellant. Similarly, the evidence of Superintendent of Jail DW2 also only indicates that the appellant had been sent to Medical Health Centre. Even the evidence of the Health Centre was incomplete and wholly unreliable.” It is therefore not too farfetched to conclude that we may do disservice to our patients by not keeping and maintaining proper documentation as a result of which the relevant legal defense may be denied to them.
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The authors certify that they have obtained all appropriate patient consent forms. In the form the patient(s) has/have given his/her/their consent for his/her/their images and other clinical information to be reported in the journal. The patients understand that their names and initials will not be published and due efforts will be made to conceal their identity, but anonymity cannot be guaranteed.
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