Automatism and voluntariness: towards a new framework for assigning criminal responsibility

It is a fundamental principle of Anglo-American criminal law that an offender must have performed the relevant criminal offence voluntarily. An instance of an offence occurring as a result of involuntary movements of the body, such as spasms or reflexes, generally gives rise to a claim of automatism, which is overwhelmingly characterised by courts and scholars alike as a ‘defence’. However, such language has implications on the way in which we understand voluntariness in criminal law. Rather than categorising the situation as an instance in which a constituent element of the offence has not been fulfilled, courts seek to identify whether the defendant should be excused. This is problematic for a number of reasons. First, it gives rise to conceptual uncertainty, due to the inadequate labelling of the instance at hand. Second, it has the potential of casting the net of criminalisation too wide, as courts are sceptic and overwhelmingly cautious in acquitting defendants who allege to have moved involuntarily. This study adopts the view that automatism is not a defence, but rather a denial that the offence ever happened, due to the requirement of voluntariness having not been fulfilled. In turn, the question then becomes: ‘How should the voluntariness requirement be defined in the context of criminal responsibility?’ The present thesis seeks to answer this central question by adopting a multi-disciplinary perspective, engaging in philosophical and neuroscientific analyses on the nature of voluntary movement. Drawing from these areas of research, it is argued that the criminal law should adopt a definition of voluntariness based on one’s retention of sufficient bodily control to move otherwise. Such a conceptualisation would align the requirement with a philosophical understanding of free action based on the availability of alternative possibilities. Moreover, it would place the voluntariness requirement on a sounder empirical footing, given the existence of neuroscientific evidence that traces back the regulation and inhibition of movement to specific, identifiable cognitive processes. The proposed definition of voluntariness would apply to all assessments of criminal responsibility, as an element of the offence, thus relinquishing the application of an automatism ‘defence’. Beyond practical implications, the thesis is also methodologically significant, due to the incorporation of cognitive neuroscience and hypnosis research into the legal analysis of voluntariness. In this context, the present study contributes to the growing field of ‘neurolaw’, which combines law and neuroscience to influence legal standards through neuroscientific evidence.