Criticisms of Defenses


Intro to Insanity

  • Rules were established in M'Naghten
  • Defect of reason
  • Result of a disease of the mind
  • Caused D to not know the nature or quality of his act or that what he was doing is wrong
  • Law commision insanity and automatism discussion paper 2013 criticised the law surrounding this
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1.Definition of Insanity

  • Definition of insanity is legal and not medical
  • defect of reason and disease of the mind mean little to medical professionals
  • Insanity would be best dealt with outside the criminal justice system
  • People can be deemed to be legally insane who would not be seen as mentally ill
  • Diabetics- Hennessy
  • Hardened arteries- Kemp
  • Butler Committee- not guilty by reason of medical disorder
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2. Burden & Standard

  • There is a reversal in the normal burden and standard of proof
  • Goes against article 6 of the ECHR which states D is innocent until proven guilty
  • Butler Committee- altering this so the prosecution would have to prove in the mens rea
  • Jury should not have to decide insanity
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3. Legally insane without mental illness

  • People can be deemed to be legally insane without being mentally ill
  • Hennessy and Kemp
  • Sleepwalkers as in R v Thomas- disease of the mind
  • suggests that diabetics and sleepwalkers are a danger to the public
  • most of these people can control their illness with medication
  • Law may not need to intervene
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Nature and Quality

  • People who understand nature and quality of their acts are excluded
  • Sutcliffe, Windle, Byrne
  • Those who the defence is aimed at are unable to rely on it
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Position of Diabetics

  • R v Sullivan- insanity as the disease itself caused the issue
  • R v Quick- automatism as the medication was an external cause
  • Quick got a complete defence and acquittal from automatism
  • Hennessy got a hospital order for insanity
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Social Stigma

  • Bad enough to class mentally ill people as insane
  • inappropriate to label diabetics and epileptics as insane
  • 30 pleas of insanity a year
  • large proportion of prisoners have mental health problems
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Reform of Insanity

  • 1953 Royal Commission wanted to include uncontrollable urges eg r v byrne but gov brought in DR which only affects murder
  • Judge does not have to give hospital order r v thomas
  • LCDP 2013- new defence of not criminally responsible by reason of recognised medical condition- accused would not be criminally responsible where he lacked capacity to conform to law- RMC total lack of capacity to reason, understand wrong or control physical actions
  • Available for any kinds of offence
  • No simple acquittal but a special verdict
  • Elevated evidential burden should lie on accused to raise elements of th defence- for the prosecution to disprove the defence.
  • Accused must adduce evidence from 2 experts
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Intro to intoxication

  • Contradictions in the law
  • Public policy based
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Voluntary and Involuntary

  • Law draws a distinction between these because voluntary intoxication is reckless
  • involuntary intoxication can still lead to guilty verdict as drunk intent is still intent
  • Kingston (IV I) unfair to punish someone who is themselves a victim of a crime
  • R v Hardie- voluntarily took tablets but was not punished as he did not expect to be intoxicated by valium
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Basic and specific intent

  • In majewski it walk held there is no defence in voluntary intoxication in basic as getting drunk is recklessness therefore MR
  • This ignores that AR and MR must coincide- grady- drinking may occur hours before the act- when he was getting drunk he would not have considered the risk of commiting a crime
  • Janet Loveless- contemporaneity rules
  • ignores the premise that prosecution must prove MR
  • replaces legal definition of reckless with dictionary one
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Corresponding basic intent crimes

  • Intoxication is not intended to be a complete defnece
  • Lipman- used intoxication as a defence to murder so he was convicted of manslaughter
  • Some specific intent crimes have no corresponding basic offnece
  • intoxication would be a complete defence to theft
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Basic or specific

  • can be issues when judges are deciding if a crime is basic or specific
  • R v Heard- sexual offences act 2003 does not clarify basic or specific intent
  • attempted **** is specific but **** is basic
  • intoxication is a complete defence to attempted **** but not to ****
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  • Butler committe wanted a new offence of dangerous intoxication
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