Defences reform

Reform on defences. 

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  • Created on: 15-06-12 15:35
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The law on insanity is overdue for reform. The legal definition of the defence has not changed
significantly since 1842 and the Royal Commission stated that the definition was both out of
date and misleading.
The definition has been said to be `medically irrelevant'. 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 come 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 shame. 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
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
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.
There are several proposals for reform on the law of insanity. In 1953, the Royal Commission on
Capital Punishment suggested that the definition laid down by the M'Naghten Rules should be
extended to cover those who were "incapable of preventing" themselves from committing the
offence. This would mean that those acting upon irresistible impulses could use the defence of
insanity. However, the Government issued the defence of diminished responsibility.
Another reform proposed is to abolish the M'naghten rules and have a medically relevant
definition of insanity to make it fair just and reasonable for those who suffer from mental
disorders a fair defense to use.

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To remove the social stigma the Butler Committee in 1975 suggested that the verdict should be
"not guilty on evidence of a mental disorder".
Finally, the Law Commission in 1989 proposed that a defendant should be not guilty on evidence
of a severe mental disorder or severe mental handicap.
Another defence due for reform is the defence of intoxication.
The law on intoxication is heavily grounded on public policy considerations. There are two main
reasons for this:
1.…read more


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