Unit 3 Criticism essays: 2 General defences (Insanity: (Criticism 2:…
Unit 3 Criticism essays: 2 General defences
Essay will be exploring the criticisms linked to the defences of consent and insanity.
Recognise the proposal reforms of the current law on insanity.
Both defences are general defences that are available to most offences.
The defence of consent is available fro most offences and will absolve the defendant of criminal liability if successful.
Insanity can be used for all offences and defendant will be given a special verdict of ' Not guilty by reason of insanity' also results in rehabilitation by discretion of the judge.
Criticism 1: Current structure
Been criticised as too narrow and outdated. To restrictive and paternalistic. Fails to recognise personal autonomy as in
R v Brown
Judges were shown to bring in personal views and can restrict the legal system by not allowing people to use individual freedom. The views that the defence is built upon are not shown to develop with society. Need a more modern outlook as in
R v Lock.
HOWEVER, the restrictive structure can protect the public as leniency in such case as
R v Brown
could lead to more severe cases of sado-machochism and this is not in the public interest so restrictions can be beneficial.
Criticism 2: Informed consent and capacity
Victim must have full capacity to understand the risk ( Burrell v Harmer) but this has been criticised because how are the courts meant to measure or define capacity.
Lack of clarity shown by the contradiction from
Gillick and Burrell v Hamer
. As under 16's can consent to medical treatment but no too tattoos. can cause confusion for judges and jury when deciding the definition.
HOWEVER, this can protect vulnerable young children from making irrational harmful decisions.
Lack of coincidence when deciding when consent is informed as even though it was not found in
, it was found in
R v Richardson.
Even though if v had known about removal of licence she probably would not have consented. So again causes contradiction and confusion.
However public policies can apply and create exceptions to higher level offences such as rough horse play (
R v Jones)
Generally available to non fatal offences where no injury occurs such as common assault defined by the basic rule (
R v Brown)
Regularly criticised such as the overlapping with issues of morality
Criticism 3: Restricts assisted suicide
Restricts assisted suicide from being a form of consent. Due to the basic rule you cannot consent to death. This could be seen as unjust for struggling individuals. Suicide is a legal act but for some they cannot physically achieve this. (
R v Pretty
There has been no change in this law as seen by Rob Marriss assisted dying bill 2015 never being passed. However his could be seen as protect vulnerable individuals who might feel pressured in to this decision, hence only courts can withdraw life support
( R v Bland).
Criticism 2: Ineffective verdict
the verdict is not regarded as helpful as the implications are significant, showing that people would rather plead guilty then use the defence (
). There is a stigma created. A finding of insanity could lead to indefinite detention in hospital which is longer then an imprisonment sentence. Showing it to be ineffective.
LC state ' A finding of insanity attracts huge stigma and may in cases where the defendant was not totally mentally disordered. Unfair as it can attract further prosecution from society.
HOWEVER, this sentence and verdict can gain defendants the help they may need to recover.
Criticism 3: Burden of proof
Unlike many it is up to the defendant to prove the defence, arguably this is wrong as if D is insane they do not have the capacity to prove the defence. Also conflicts with Woolmington v DPP principle that the burden of proof is always on the prosecution as D is innocent till proven guilty.
However, does provide the defence is not over used as D has to prove the many steps to the defence themselves
Criticism 1: Definition
R v Byrne: psychopathy is not covered because they no what they are doing. but this is unjust as medical practice has advanced significantly and shows this to be a disease of the mind definition is too inclusive and lacks clarity.
HOWEVER, you could argue the defence has been applied and used in courts for many years with out reform showing some benefits.
Definition is held to be medically irrelevant. this is because of the lack of development as it has not been revised since 1843. it is a legal definition rather than a medical one. means certain medical conditions are missed out
Butler committee suggested that the verdict should be replaced with ' A verdict of not guilty on evidence of mental disorder' to reduce the stigma
That the burden of disproving the defence falls on the prosecution to coincide with the basic principle
The definition should be more inclusive and provide a stage that states d was incapable of controlling/preventing himself. Open up the defence to those suffering impulsive diseases of the mid such as Byrne.
Available to all offences requiring mens rea. Based on the
M'naghten rules 1843
.This states that D is labouring under a disease of the mind (
R V Kemp
), not knowing the nature of his actions (
R v Oye
) and not knowing it was legally wrong (
R v Bell)
Regularly criticised as DR Winstanley stated ' the present law lays down such a definition of madness that nobody is ever really mad enough to be within.