1. Critically evaluate two of the defences you have studied and suggestions
for their reform.
The law on insanity is overdue for reform. The legal definition of the defence has not changed
significantly since 1842 and as far back as 1953 evidence given to the Royal Commission stated
that the definition was both obsolete and misleading. The Law Commission has recognised this
issue and has included insanity in its 10th programme of reform. They state “The problems with
the existing law are many and serious …and the current rules for determining legal insanity date
from 1842. In those days, the science of psychiatry was in its infancy.”
The definition has been said to be ‘medically irrelevant’. The Law Commission stated that”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. 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 as their actions stem from an
‘internal cause’. 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.
It could also be argued that 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.
Criticisms can be made about the verdict in insanity cases. 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
has been suggested that many defendants with mental problems do not raise the defence for
these reasons. There is also a potential conflict with 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
A further problem is the overlap of the defence 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
2. 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.
Finally there is the effect of the decision in Windle which held that a defendant who is
suffering from a serious recognised mental illness and who does not know that his act is morally
wrong cannot use a defence of insanity when he knows that his act is legally wrong. An
Australian case refused to follow this decision. In Johnson the Court of Appeal thought that
the Australian case had some merit but recognised that they were obliged to follow Windle.
This would suggest that the a review of the law is long overdue.
A second defence which would appear to be less than satisfactory is the defence of intoxication.
It would appear that the law in this area is heavily grounded on public policy considerations.
There are two main reasons for this; firstly, intoxication is a major factor in the commission of
many crimes and secondly 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.
This does however, mean that there are some anachronisms in the law which need to be
addressed. This was recognised by the Law Commission who published their report Intoxication
and Criminal Liability in January 2009. According to Professor Jeremy Horder, the
Commissioner leading the project “The present rules governing the extent to which the
offender’s intoxicated state may be relied on to avoid liability are inadequate. Our
recommendations would remove the unsatisfactory distinction between basic intent and specific
intent and provide a definitive list of states of mind to which self-induced intoxication is
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. 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’. In 2009 the Law
Commission appear to have retained this rule in their recommendation that states where the
crime is one where fault is not an integral part (i.e. it can be committed recklessly) then the
defendant should be treated as being aware of anything they would have been aware of had they
3. not been intoxicated. In other words – voluntary intoxication would still be unavailable as a
defence to crimes which can be committed recklessly
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?
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. Linked to this point is the use of the terminology of specific and basic
intent. This is not used elsewhere in criminal law and is unnecessarily confusing. The Law
Commission have rejected the use of this terminology and instead refer to crimes with an
‘integral fault element’ which they go on to further define.
Finally when the defendant is involuntarily intoxicated they can still be found guilty if they were
capable of forming the necessary mens rea – Kingston. This ignores the fact that the defendant
was not to blame for the intoxication. The Law Commission have however chosen to retain this
rule merely clarifying the instances which would count as involuntary intoxication.
It would appear therefore, that the Law Commission in their recommendations are merely
codifying and clarifying the existing law rather than attempting to rewrite the defence of
intoxication. Whilst this may make the law easier to apply it does not deal with many of the
points raised above, and raises the question whether these reforms will actually improve the use
of the defence.