Keele University

Graduate Student, Research Institute for Law Politics and Justice

PhD Student

School of Law

Thesis Title: The Framing Of Expert Evidence About The Defence of Sleepwalking and Other Parasomnias

About

I'm a post-graduate law student doing an interdisciplinary PhD in medicine and law. I graduated in medicine from Dundee, gained the MRCP(UK) Diploma in 2000 and took the Graduate Diploma in Law at Keele. I am doing research into non-psychiatric conditions and mental condition defences - automatism, unconsciousness and insanity - and have a wider interest in criminal law theory. My special interest and expertise lies in the area of automatism (broadly defined), especially due to parasomnias or other sleep disorders and hypoglycaemia (usually secondary to the treatment of diabetes).

I have been administering a semi-structured qualitative interview to forensic sleep experts and other actors in conjunction with a qualitative questionnaire based on forensic sleep vignettes. Sleepwalking trials are increasingly reported in the media, and they are often sensational in nature. They frequently attract adverse comment about the supposed tenuous basis of the defence. There has been public debate about the proof “required” for an acquittal (sane automatism is actually a “denial-of-proof” defence). In the case of Jeal (unreported), the accused was charged with rape and acquitted, and there was an article in the Daily Mail about the injustice to his victim, the defence of automatism and the efforts of Harry Cohen, then MP for Leyton and Wanstead, to prohibit the defence of sleepwalking for rape (Koster, 2008). I learned from his solicitor that in fact he was acquitted on grounds of mistake as to consent. The case prompted comments such as:

  "A rape is a rape and should be treated as such." (Harry Cohen, MP)
  "I would like to see some sort of reverse burden of proof where the defendant has to come up with evidence to prove they have a history of sleepwalking, doctors' reports, and witnesses. Otherwise anyone can simply say 'I was asleep'." (DC Richard Rock, Hampshire Police). (both above from Jamieson, 2008)
  "People do sleepwalk and they do strange things in their sleep, but it usually is no more complex than grinding the teeth or smacking the lips—at most they may get up and make a cup of tea. I would think it was extremely difficult to perform such a complex manoeuvre as having sexual intercourse while asleep—especially if the other person is unwilling" (Cosmo Hallstrom, Fellow of the Royal College of Psychiatrists (FRCP), from Harry Cohen’s Early Day Motion 15th Oct 2008: Dr Hallstrom is neither a sleep medicine specialist nor a forensic psychiatrist).

Reports like these lead to public disquiet and frank disbelief over sleepwalking acquittals. My project is looking at the way expert witnesses present their evidence about parasomnias in criminal trials to see if this is justified. Whilst forensic psychiatrists have the M’Naghten Rules to guide, or possibly restrict, their evidence, there are no equivalent guidelines for medical evidence supporting a defence of sane automatism. Automatism is defined as involuntary action, but voluntary action, will, and act are defined in terms of each other in the law. The case law is confusing and inconsistent and it is a welcome development that the Law Commission will be preparing a report on insanity and automatism. They are consulting with the Sleep Medicine section of the Royal Society of Medicine among other stakeholders. It’s apparent from the literature that although in most cases there is common ground between expert witnesses, there is on occasion profound disagreement about whether a particular episode represents a parasomnia or not.

My research aims to find out by means of interviews how forensic sleep experts fit their medical knowledge and opinions to the demands of the criminal justice system. I will also be looking at whether the training and specialty of forensic sleep experts affect their opinions, is the expert evidence given affected by pre-conceptions and/or ideologies, do the expert witnesses have any concerns over how their evidence is treated by the criminal justice system, and is the expert evidence given robust and reliable?.

I will be analysing the data from my interviews to see if the views expressed have any implications for the law on automatism or the way expert evidence is received. I have been invited to participate the forthcoming consultation by the Law Commission (see above), and I will be sharing my findings so far with them. The basis for legal automatism has been analysed and criticised by several commentators, including RD Mackay, RF Schopp and B McSherry. I will be examining their criticisms in the light of my data, and making conclusions about possible reforms of the law.

I'm also at various stages with other projects including research on sexsomnia, compiling a database on press reports of sexsomnia, and papers for the Journal of Medicine and Philosophy and the Criminal Law Review (co-authored with Prof Wasik).

I taught contract law to undergraduate students in the academic year 2010-11.
I am a student member of the SLSA and a member of the British Sleep Society.