http://www.lawcom.gov.uk/wp-content/uploads/2015/06/insanity_discussion_summary.pdf Definition: The insanity defence is set out in the “M’Naghten Rules” as laid down by the
House of Lords in 1843.
Must be suffering from the three points; Defect of reason, disease of the mind and not to know that doing or/ not to know it’s wrong.
Burden of proof on D to show the balance of probabilities they are insane.
It is generally accepted that there are problems with insanity.
In only about 30 crown court cases a year is insanity used as a defence successfully in England and wales – this is a bad thing as the majority of offenders, prisoners have issues and self-medicate on drugs and become addicted and underlying health problems are never addressed. And therefore insanity defence could be used but isn’t. Unfair on people who could have qualified to use it but didn’t and are convicted.
There are different disposals of it whether you are in the magistrates or in the crown court. ‘Disposed’ of differently in Magistrates where an order made under the mental health act 1983.
Prosecution can raise insanity as an issue.
Problems:
1. ‘Disease of the mind’ – M’Naughten in 1843, led to case law that distinguishes internal and external factors and as a result you get cases like Hennessy and Quick (diabetes). Insane meant something else back in 1843 and wouldn’t be associated with things such as diabetes and sleepwalking. Mind doesn’t mean brain; sleepwalking (burgess) and epilepsy (can’t remember case).
(600,000 people with epilepsy in the UK, they don’t all want to be labelled as insane). Epilepsy and diabetes are physical conditions that lead to mental illness.
2. Label of insanity is stigmatising and inaccurate – Stigma associated with ‘insanity’ - The very nature of defence is off-putting to many people. Legal representatives sometimes do not want to suggest their clients are insane/ the defence of insanity might be relevant to their case. (use 30 cases in a year statistic) There is a broad interpretation of the term ‘disease of the mind’ results in people with epilepsy, diabetes and other conditions that would not…(point 52 on the link)
3. Medical understanding – Dr James Reed wrote that “the present test does not relate in any meaningful way to the practice of psychiatry.” The M’N rules do not relate to medical conditions of clinical situations. Other jurisdictions have reformed… (point 51 on link)
4. Knowledge – (point 50) the law com, the M’n test is in case law. The test relies on what a def knows. Do they know what they’re doing? And if they do know what they are doing do they know that it is wrong? Relies on epistemological ways of thinking. Disregard in ones ability to resist compulsions or control ones emotions. Unable to control themselves/ their behaviour. Tends to be younger people that commit crimes due to impulse part of brain not developed as much (age 20). Have a stroke cannot control instincts and impulses.
Concept of knowledge is too narrow, not up to date. Overlap with dim resp but it recognises self-control in DR. Why shouldn’t someone who is insane have the same treatment in law?
There’s a danger of a breach of the convention of EU human rights. Both the rights of the V and of the D are infringed by that defence (point 60 pg 14). Study of 3 prisons.... (Human rights bit overlaps with point 63; equality and discrimination.) Particularly difficult with children, they may have impaired mental faculties of knowledge and understanding. Defendants’ rights issue seems defence doesn’t identify people use defence. Greater risk to suicide and self-harm in prison due to undiagnosed mental health issues. Risks violation to their rights to life and subjected to inhuman and disregarding treatment (point 62).
Examples in practice; situation where mother suicidal, jumps off bridge with child in arm, child dies but mother survives…prosecuted for murder. (Point 80). Does she have defect of reason? Depression…unable to reason/think clearly? Can people think clearly if they’re suicidal? Severe dep is an illness, is a disease of the mind? Yes. Does she know what she’s doing? Yes. Does she know it’s wrong? Yes. So she cannot use insanity. Being depressed distorts thinking? Vindictiveness prevents her using excuse of prevents her making judgement in rational way. (Example bottom of page 17). Got a defect of reason and disease of the mind. Knows what they’re doing, don’t know it’s wrong. Might be alright under insanity. Does he know he’s killing his child? Or just committing an exorcism. R v Oye said it would be insanity.
5. Burden of proof – (Only one sentence needed) BoP lies on the accused if the insanity defence is raised. Beyond all reasonable doubt. Point 58. If Def is not insane and accused is convicted. 51% likely their insane, more than reasonable doubt that their insane. They will be found insane. Juries are cleverer than people in practice. Burden of proof not that big an issue, other issues are more important. Proposals:
English law out of step of other countries.
New defence proposed. Point 75. Include clinical dep etc.… New defence of not criminally responsible by reason of a recognised, medical condition. Take out stigma!!! Abolish M’N rules, which will abolish external and internal factors.
Want to bring in new special verdict, not criminally responsible by reason of a recognised medical condition…with special disposal powers.
What kind of capacities are going to address point 4 – the knowledge. What’s criminally responsible and not? Get rid of insanity and use DR for all offences. Law com says 3 crim capacities 1. Have to make a rational judgement. 2. To understand you’re doing something wrong. Understand wrongfulness of the act. 3. Can you control yourself? Point 83. Difficult to tell when someone has genuinely lost the ability to control themselves. Point 85. takes out the ‘know what they’re doing part criteria of self-control.
(Now say how these things would solve these issues.)
Recognised med condition – recognised by professionals, may need to make exclusions. Point 97 and 98 exclusions. Someone who is extremely drunk not an alcoholic (acute intox). Anti-social personality disorder; not saying there is no such thing, saying they don’t like it. Too many criminals probably have it. Too common. Anti-social and nasty people defence. There is a wide range of ‘normal’… psychiatry pathologies’ things too often.