Automatism for the people

Following the decision in the highly publicised case involving Peter Buck of REM, Kevin Roberts discusses the implications for the use of automatism as a defence

On 20 April 2001, Peter Buck, lead guitarist in the rock band REM, left Seattle on a British Airways flight for London.

He was about to undertake a promotional tour for his latest album and to perform in the Nelson Mandela Tribute Concert in Trafalgar Square.

The flight did not proceed uneventfully and, on the morning of 21 April 2001, Mr Buck found himself at Heathrow police station.

He was subsequently charged with being drunk on an aircraft, two counts of common assault, and one count of criminal damage.

It was the Crown's case that Mr Buck had consumed in the region of 15 glasses of red wine.

He had assaulted two members of the cabin crew and upturned a breakfast trolley, causing damage to crockery.

What distinguished Mr Buck's case from others of this nature was not only his celebrity status but that he raised the defence of 'automatism'.

Non-insane automatism is a defence rarely used.

It is, put simply, lack of mens rea, owing to some failure of the mind not caused by disease.

In R v Quick [1973] 1 QB 910, the Court of Appeal described non-insane automatism as a 'malfunctioning of the mind of transitory effect caused by the application to the body of some external factor, such as violence, drugs, including anaesthetics, alcohol and hypnotic influences'.

Mr Buck sought to establish that his lack of mens rea was a transitory effect caused by the external factor of red wine combined with sleeping tablets.

He established a proper foundation for such a defence to be left to the jury (R v Burgess [1991] 2 QB 92; 93 Cr App R 41, CA) by calling the person who gave him the Zolpidem, the road manager who saw him take the tablets, and two expert witnesses.

While it is difficult, and potentially risky, to put forward a defence of automatism, once such a defence has been established it is thereafter for the prosecution to disprove the evidence of automatism beyond a reasonable doubt (R v Burns (1958) Cr App R 364 Court of Appeal).

Therefore, it was not surprising that a far larger proportion of Mr Buck's case was concerned with the evidence of psychopharmaco-logists, psychiatrists and drug companies than with the facts themselves.

Once the jury heard the opinion of Malcolm Lader, professor of clinical psychopharmacology at the University of London, that the combination of wine and Zolpidem had induced a transitory state of automatism in Mr Buck, the prosecution had to show that the defendant's control had merely been impaired or reduced and was not total.

Total destruction of voluntary control on the defendant's part is essential to support a defence of automatism (Attorney-General's reference number 2 of 1992 (1997) Cr App R 429 Court of Appeal).

Considerable attention was given by both sides to matters such as Mr Buck's use of a yoghurt and spoon as his weapon of choice and to his evidence that when he woke to find himself in a police station he thought that he was in a hospital in Disneyland.

However, a defendant cannot simply absolve himself of all responsibility for his actions by blaming pills and booze.

In R v Quick, the court stated that 'such malfunctioning, unlike that caused by a defect of reason from disease of the mind will not always relieve an accused from criminal responsibility ...

A self-induced incapacity will not excuse (see R v Lipman [1970] 1 QB 152; (1969) 53 Cr App R 600), nor will one which could have been reasonably foreseen as a result of either doing or admitting 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.'

Mr Buck's defence was that he was given the Zolpidem tablets by a friend who recommended that he take two brandies with them, to help him to sleep on the flight.

The drug company that manufactured the sleeping pills adduced, through the Crown, a photograph of a US prescription bottle, which specifically advised against the taking of alcohol with this medication.

However, the defence was able to call the witness who gave Mr Buck the tablets.

He produced his prescription bottle, which did not contain such a warning.

Mr Buck's foresight, or otherwise, as to the consequences of his actions obviously went to the question of recklessness and crimes of specific and basic intent.

The jury would have been able to convict Mr Buck if it had found that in voluntarily consuming the alcohol and drugs, he was acting recklessly.

The case of the R v Bailey [1983] 3 All ER 503 suggests that the test for recklessness in this case was 'would the defendant, if sober, [have] realised that to combine sleeping pills and alcohol would have made him behave unpredictably or aggressively?'

RD McKay in his article Intoxication as a factor in Automatism (1982) Crim LR 146, states that if the accused's intoxicated state is self-induced, without any fault on his part, then he will not be convicted of any offence.

He cites the Canadian case of BR v Bray (1976) 24 CCC, in which the defendant was acquitted on the basis of automatism caused by the combined effects of alcohol, prescribed medication and severe emotional stress, where the judge found that the medical advice he had received was vague as to the amount of alcohol he could drink and the serious effect that the consumption of alcohol on the medication would have upon him.

On 5 April 2002 Mr Buck was acquitted of all charges.

We will never know whether the jury followed the line of reasoning described here, or was more swayed by the good character evidence provided by Mr Buck's fellow band member, Michael Stipe, and U2 frontman Bono.

Given the prevalence of such offences, it is likely that this type of defence may be brought more frequently in light of the publicity given to this case.

It is also likely that the police and prosecution will change their procedures in dealing with defendants at police stations in matters of this type.

Kevin Roberts is an associate at London-based Magrath & Co.

He and his colleague Neill Blundell acted for Peter Buck