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another. Thus although both the law and medicine use the same word they mean different
things.

Automatism

An epileptic automatism is defined medically as:

‘A state of clouding of consciousness which occurs during or immediately after a seizure,
during which the individual retains control of posture and muscle tone, but performs simple or
complex movements without being aware of what is happening. The impairment of awareness
varies. A variety of initial phenomena before the interruption of consciousness and the onset of
automatic behaviour may occur’1.

By this definition, automatisms are really very common, and can be divided into two groups:
ictal automatisms, which occur during a seizure, and post-ictal automatisms, which occur after
a seizure.

The accepted legal definition of automatism, as given by Viscount Kilmuir LC2 in the House
of Lords Appeal in the case of Bratty v Attorney General for Northern Ireland, is as follows:

‘The state of a person who, though capable of action, is not conscious of what he is doing ... it
means unconscious, involuntary action and it is a defence because the mind does not go with
what is being done.’ Viscount Kilmuir continued: ‘This is very like the words of the learned
President of the Court of Appeal of New Zealand (Gresson, P.) in Regina v Cottle, where he
said: “With respect, I would myself prefer to explain automatism simply as action without any
knowledge of acting, or action with no consciousness of doing what was being done.”’

This definition is very close to the medical definition, and it would thus seem that doctors and
lawyers are in agreement about what constitutes an automatism. This is not so, however,
because the law, unlike medicine, defines two types of automatisms: sane (automatism
simpliciter), e.g. after a head injury, and insane (automatism due to disease of the mind), e.g.
resulting from arteriosclerosis in the brain. Either kind of automatism can be put forward as a
defence and if accepted by the court will enable the defendant to plead not guilty. However, the
consequences of a successful defence are quite different in the two cases. In the case of sane
automatism, the defendant will walk free from the court. But in the case of an insane
automatism the defendant will be sentenced under the Fitness to Plead and Insanity Act 1991.
This Act allows the judge to decide on disposal, which can range from allowing the defendant
to go free to the detention of the defendant in a secure mental hospital for an indefinite period
at the discretion of the Home Secretary.

Sane and insane automatism

The distinction between sane and insane automatism is arbitrary and makes little medical sense.
A brief look at the case of Sullivan, which attempted to clarify the law, may be helpful.

Appeal  Epileptic automatism as disease of the mind: Regina v Sullivan
Sullivan, a man of previous good character, had complex partial seizures with occasional
secondary generalisation from the age of eight. He had had two severe head injuries which
resulted in widespread brain damage and some degree of personality change. His major attacks
ceased in 1979, and only the complex partial seizures remained. These seizures spread rapidly
and bilaterally into both amygdala and hippocampal structures, so that Sullivan had no memory
of the seizure or events immediately thereafter3.