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The Insanity Defence, Reform - Coggle Diagram
The Insanity Defence
- Where D claims not to have fulfilled all the elements of the offence because of some malfunctioning of their body(internal factor)
- Insanity as a denial of offending should be distinguished from two areas:
- 1) Unfitness to plead: Arises where D is mentally and/or physically unfit to stand trial because she is unable to participate effectively in it
- 2) Insanity as a defence: This arises where D has completed the actus reus and mens rea of an offence, and claims she was insane at the time, thereby avoiding liability
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Insanity and defences
- Where insanity is raised as a denial of offending (ie to explain D’s lack of mens rea), D will not require a defence – D hasn’t committed an offence.
- Whether D should be given an unqualified acquittal as she has not committed a full offence, or if she satisfies the insanity rules, whether she should be given the qualified acquittal of ‘not guilty by reason of insanity’.
- The only exception to this, potentially, could arise were the courts to recognise a rule of prior fault for insanity in line with intoxication and automatism. Thus, if D’s prior-fault resulted in a state of insanity and criminal conduct, D would be liable for the full offence rather than not guilty by reason of insanity.
- D could claim a defence to undermine her prior-fault at T1 and thus undermine liability (eg duress, where D is threatened to not take her medication), and/or potentially a defence in relation to her T2 conduct
Reform
Intoxication
- The prior-fault intoxication rules in general, and the Majewski principle in particular, have been consistently criticised for their lack of a theoretical basis and their confused application in practice (Williams, 2013).
- The most recent Law Commission project on intoxication was completed in 2009.191 In its report, the Commission recommended the abandonment of the Majewski distinction between offences of basic and specific intent.
- For the Commission, the main problem with the law was that this principle was not consistently or specifically applied.
- Thus, rather than a rule distinguishing between offences that might include various mens rea requirements as in Majewski, the Commission recommended that each element of each offence should be analysed separately: where the missing element of mens rea is recklessness or less, then D’s intoxication can substitute for it (the Commission labelled these‘ non-integral’ elements), but if the element requires a higher mens rea than recklessness (eg intention, knowledge, etc) then the absence of this cannot be replaced by D’s intoxication (the Commission labelled these ‘integral’ elements).
- There are a number of merits to this policy as a rationalisation of the current law. However, the Commission’s recommendations have also attracted criticism, and have been rejected by government (Child, 2009).
- As more commentators have accepted that the prior-fault intoxication rules are essentially inculpatory, and that the debate should be about what is required to construct liability, the prospect of an intoxication offence to replace the current prior-fault intoxication rules has regained popularity (Simester, 2009).
- Rather than the fiction of the current law, pretending that D possessed mens rea where she did not, the advantage of an intoxication offence is that it could accurately label and punish Dfor what she has done: become intoxicated and caused a criminal harm.
- The detail of such an offence remains contested, but it is contended that this approach offersthe best way forward (Williams, 2013)
Sane Automatism
- The automatism rules have attracted less academic attention than intoxication, but many of the same debates and criticisms can be applied.
- The approach of the Law Commission, in its Discussion Paper in 2013 (Law Commission, 2013), has been an attempt to rationalise the current law in the context of other denials of offending, most notably intoxication and insanity. For example, the commission explores the wider concept of prior-fault and looks to identify consistent approaches across the three sets of rules.
- Focusing on automatism specifically, the Commission also looks to resolve some of the main areas of uncertainty within the current law, discussed earlier, relating to the type of foresight required by D in the context of prior-fault, as well as the degree of involuntariness required to give rise to automatism at all.
- As with intoxication, however, if we see the automatism rules as designed to construct liability, an alternative approach could be the creation of a prior-fault automatism offence (Child and Reed, 2014).
- This option is not discussed by the Commission. It will be interesting to see what approach is eventually recommended by the Commission
Insanity
- The most criticised rule relates to insanity
- That the law remains governed by the outlined opinions of Law Lords over 175 years ago is nothing short of remarkable; that this should be the case despite dramatic strides in medical and public understanding of mental illness is nothing short of disgraceful.
- One of those we have not yet discussed, but a major pressure for reform, derives from the potential incompatibility of the current law with the ECHR (Mackay and Gearty, 2001):
- Articles 2 and 3: Articles 2 and 3 provide for the right to life and the prohibition of inhuman or degrading treatment. In this regard, the insanity rules have a crucial role to protect mentally disordered individuals from inappropriate prosecution, and also to protect society from potentially dangerous individuals. Where the current law fails in these roles, it is open to challenge in relation to both groups (Law Commission, 2013).
- Article 5: Article 5 provides the right to liberty and security unless certain circumstances apply, such as where D has committed an offence or requires detention in relation to an ‘unsound mind’. Where D lacks mens rea she has not committed an offence, and where the cause of this lack of mens rea is a condition such as diabetes, sleepwalking, etc, it is highly questionable whether this satisfies the Article 5 exception of an unsound mind (Winterwerp v Netherlands (1979)). Thus, where D, in these circumstances, is caught within the insanity rules and potentially detained against her will, this may be a breach of her Article 5 rights. This grounds centres on the current disconnect between legal definitions of insanity and medical definitions of mental illness.
- Article 6: Article 6 provides the right to a fair trial, including the presumption of innocence. The presumption of innocence entails placing the burden upon the prosecution to prove the elements of liability. However, where D’s denial of offending is based upon a disease of the mind (ie caught within the insanity rules) the current law reverses the legal burden of proof; requiring D to prove that elements of the offence were missing (Bratty [1963])
Some of the commission's main proposals include:
- Proposal 1: Abolition of the common law rules on insanity
- Proposal 2: Creation of a new statutory test , labelled as 'not criminally responsible by reason of recognised medical condition.'
- Proposal 3: Creation of a three-limbed test, where D's recognised medical condition must have caused D to lack capacity:
- a) rationally to form a judgement about her conduct or their circumstances;
- b) to understand the wrongfulness of what she is charged with, not isolated to legal wrongfulness; or
- c) to control her conduct in the relevant circumstances
- Proposal 6: Placing evidential burden on D when raising the reformed rules but placing the legal burden on the prosecution
- 'The general defence is too narrow in its test for insanity and too broad in its concept of disease. ... Many defendants whom most people would regard as insane cannot use the defence, whilst some whom most would regard as perfectly sane [must] us it if they want to deny responsibility for a crime.' (Norrie, CRH, p.237)
- A medical versus a legal approach: law relies on doctors but also suspiciously that 'insanity' might be an easy excuse