Automatism is never a defence

The central aim of this article is to set out and justify the contention that automatism is never a defence, not even exceptionally. Where D is not at fault for her lack of voluntariness, the term ‘automatism’ is simply a shorthand explanation that D does not satisfy an essential element of every offence: voluntary conduct. Where D is at fault for her lack of voluntariness, the automatism rules (within the current law) become an inculpatory tool through which to substitute the missing offence elements and construct liability. Having recognised that automatism plays an inculpatory role within the law, we analyse this role and conclude that it is defective: prior fault automatism lacks the equivalent blameworthiness necessary to fairly substitute for even missing basic intent offence elements. It is from here that we discuss the possibility of a new automatism offence, to recognise the criminal blameworthiness of D’s conduct in certain cases, but to do so in a coherent manner that appropriately criminalises and labels the defendant. Looking at the outline of the potential new offence we are in a much better position to evaluate the future role of automatism in the criminal law. If we do not believe that such an offence is deserving of criminalisation, then the current law must be changed to prevent prior fault automatism constructing liability under any circumstances. If we do believe that such an offence has a place within the criminal law, then the current law should be changed to reflect this more clearly, and we must focus on exactly how it should be defined.