Evaluation of Defences
Insanity and Automatism
There are a number of points to consider about the defences:
The shift of the Burden of Proof
There is a different standard of proof depending on whether the defence or the prosecution raise the
defence of insanity.
The prosecution must prove beyond reasonable doubt, the defence on the balance of probabilities.
This is likely to confuse a jury. It conflicts with the decision of Woolmington v DPP (1935) which
states that the burden is on the prosecution to prove the offence not the defence.
The defendant has to prove that he is insane. This places the burden of proof on him. It is possible
that this is in breach of Article 6 of the European Convention on Human Rights which states that the
defendant is innocent until proven guilty.
The definition of Insanity
The definition has been said to be ‘medically irrelevant’. The legal definition has not changed
significantly since 1843. In 1953 evidence given to the Royal Commission stated that the definition
was obsolete and misleading.
People suffering from certain mental disorders do not come within the defence e.g. those suffering
from irresistible impulses and psychopaths such as Byrne. They do not come within the M’Naghten
rules as they know what they are doing and that it is wrong. However they cannot prevent
themselves from acting and have a recognised medical disorder.
On the other hand, those suffering from physical illnesses such as diabetes (Hennessy), heart disease
(Kemp) and sleep walkers (Burgess)are legally insane. Additionally in diabetes cases sometimes
diabetics are classed as insane and other times not. Taking too much insulin is classed as automatism
(Quick) but not taking insulin is insanity (Sullivan). This means that the law makes no difference
between people who are a danger to society and those who suffer from illnesses such as diabetes and
epilepsy which can be controlled by medication.
Social Stigma
The word insanity carries a social stigma. It is bad enough to use it in relation to people suffering
mental disorders but is completely inappropriate to apply it those suffering from diseases such as
epilepsy or diabetes.
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The ineffectiveness of the verdict
If a person is found not guilty by reason of insanity then the recommendation could be an indefinite
place in a secure hospital. In contrast, a conviction for murder or manslaughter would result in a life
sentence that would be unlikely to mean life. Most defendants would probably prefer the conviction
and sentence. It would appear that many defendants with mental problems do not raise the defence.
Article 5 of the European Convention on Human Rights says that a person of unsound mind may only
be detained where proper account is taken of objective medical evidence. There is likely to be a
human rights challenge on indeterminate sentences.
The scope of the defence
The Butler Committee recommended that proof of severe mental disorder should be sufficient to
negate responsibility. This would create a presumption of no criminal responsibility where there is
proof of a severe mental disorder. This assumes a lack of criminal responsibility simply because of a
mental dysfunction.
Insanity overlaps with automatism. It is necessary to decide whether the defendant’s automatic state
is due to a mental illness or due to external factors. Anyone suffering from any kind of illness which
puts them in an automatic state amounts to insanity. This has serious consequences as anyone who is
able to use automatism has a complete defence and will be acquitted. If a person is found not guilty
by reason of insanity the judge has to impose some kind of order on the defendant.
Decision in Windle
Following the decision in Windle a defendant who is suffering from a serious recognised mental
illness and who does not know that his act is morally wrong cannot have a defence of insanity when
he knows that his act is legally wrong. An Australian case refused to follow this decision. In Johnson
(2007) the Court of Appeal thought that the Australian case had some merit but recognised that they
were obliged to follow Windle.
Reform
The Law Commission’s 10th programme of Law Reform includes a review of the insanity defence.
Given the vulnerability of the mentally ill and the increasing frequency with which they are coming
into contact with the criminal justice system, modern criminal law should be informed by modern
science, and in particular by modern psychiatric thinking.
The problems with the existing law are many and serious. The current test for determining fitness to
plead dates from 1836 and the current rules for determining legal insanity date from 1842. In those
days, the science of psychiatry was in its infancy.
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The application of these antiquated rules is becoming increasingly difficult and artificial. For example,
the key concept of "disease of the mind" has no agreed psychiatric meaning. As interpreted by the
courts, it has even come to include conditions that are not mental disorders, such as epilepsy and
diabetes. The stringent test of capacity for the purposes of fitness to plead also needs to be
reconsidered and should be contrasted with the much wider test contained in the Mental Capacity Act
2005.
Other important questions to be answered include: what is the exact scope of a trial of the facts
following a finding of unfitness to plead? What issues can be raised by the defendant, in particular
"defences" of accident, mistake and self-defence? What are the relationships between insanity,
automatism and diminished responsibility?
The project will draw on relevant empirical evidence and comparative jurisdictions in an attempt to
identify better and more up to date legal tests and rules for determining fitness to plead and legal
insanity
http://www.lawcom.gov.uk/insanity.htm
Intoxication
Some areas of the law on intoxication appear to be contrary to the
normal rules on mens rea and actus reus. In particular this is seen
in the decision in DPP v Majewski (1977). The decision in this case,
that the defendant is guilty of a basic intent offence because getting
drunk is a ‘reckless course of conduct’, ignores the principle that
mens rea and actus reus must coincide. The decision to drink may
be several hours before the defendant commits the actus reus of
any offence. E.g. in O’Grady the defendant had fallen asleep and
only committed the act of hitting his friend some hours afterwards.
In addition, the recklessness in becoming intoxicated means that the defendant takes a general risk of
doing something ‘stupid’ whilst drunk. At the time of getting intoxicated the defendant has no idea
that he will actually commit an offence. Normally it has to be proved that D knew there was a risk of
the specific offence being committed. The Law Commission considered this point in their consultation
paper of 1993 and said that the rule in Majewski rule was arbitrary and unfair. However, by the time
their final report was published in 1995 they stated that the present law operated ‘fairly on the whole
and without undue difficulty’.
The alternative approach taken in Richardson and Irwin does make the law fairer. Under this the
magistrates or jury have to consider whether the defendant would have realised the relevant risk if he
has not been drinking/ The mere fact of being intoxicated does not automatically make a defendant
guilty. The problem with this approach is that it is difficult to know what a particular defendant would
have done if sober. In Richardson and Irwin the Court of Appeal pointed out ‘the defendants were
not reasonable men, but University students’. Would they have realised the risk of dropping
someone over a balcony if they had been sober?
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Specific intent/basic intent
Where a defendant is charged with murder or a s18 assault he can use intoxication as a defence.
However, he can still be found guilty of a linked basic intent offence. In other words, if intoxication is
used as a defence to murder the defendant can be found guilty of manslaughter, if used for s18 OAPA
they can be found guilty of s20 OAPA. However for other crimes there is no ‘lesser’ offence – so if
intoxication is pleaded successfully for theft the defendant will be not guilty of any offence..
Involuntary intoxication
When the defendant is involuntarily intoxicated they can still be found guilty if they were capable of
forming the necessary mens rea – Kingston (1994). This ignores the fact that the defendant was not
to blame for the intoxication.
Public Policy
The law on intoxication is heavily grounded on public policy considerations. There are two main
reasons for this:
1. intoxication is a major factor in the commission of many crimes
2. there is a need to balance the rights of the defendant and the victim; if intoxication were
always to be a defence then victims’ rights would not be protected.
Self-Defence
Pre-emptive strike
One point is whether a person has to wait until they are attacked before
they can use force. The law appears to be clear that they can act to
prevent force. It is not necessary for an attack to have started. In
Attorney-General’s Reference (No2 of 1983) it was held that someone
who fears an attack can make preparations to defend himself. This is so
even if the preparations involve breaches of the law.
Excessive force
A major problem is where a defendant uses excessive force in self-defence. If this is so they cannot
use self-defence as a defence. Excessive self-defence can be taken into account by the judge when
passing sentence (except in murder where the mandatory sentence is life). The Government
consultation paper Murder, manslaughter and infanticide; proposals for reform of the law does
propose a partial defence of ‘killing in response to a fear of serious violence’. This would be available
to someone who overreacts to what they perceive as an imminent threat and would reduce the
charge to manslaughter.
Relevance of D’s characteristics
There has been some debate as to whether D’s characteristics can be taken into account in deciding if
D thought that he needed to defend himself. In Martin (2002) the Court of Appeal held that
psychiatric evidence that D had a condition that meant he perceived much greater danger than the
average person was not relevant to the question of whether D had used reasonable force. One
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reasons was that self-defence is usually raised in minor assault cases and it would be ‘wholly
disproportionate to encourage medical disputes in cases of that sort’. This was upheld in Cairns
(2005).
These decisions may not be effective following the passing of the Criminal Justice and Immigration
Act 2008. In s76 makes it clear that the question of whether the degree of force used by D was
reasonable in the circumstances is to be decided by reference to the circumstances as D believed it to
be. If the jury (or magistrates) decide that D did genuinely have a belief in the existence of a
particular circumstances then D is entitled to rely on it.
Consent
Consent is always a defence to common assault or battery. This is
because there is no injury caused. The law will not interfere in with
people’s rights to do what they wish.
However, where an injury is caused, the consent is not a defence unless the
situation in one recognised as an exception to this rule on the basis of
public policy. Consent is strictly not a defence, since where the other
person consents there is no offence.
It is however, difficult to reconcile the decisions by the courts in cases on consent. For example
compare the cases of Brown (1994) and Wilson (1997). It is possible to distinguish these cases by the
fact that causing pain for sexual gratification is not allowed but causing pain for body adornment is
allowed. The cases can suggest however, that the defence applies when the defendants are
consenting heterosexuals but does not apply when they are consenting homosexuals. This could be
seen as the courts trying to impose their own moral values on the law.
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