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The current law on general defences have been criticised for various reasons and has been said to be
in need of reform. This had led to accusations that the current law is unsatisfactory. In some areas of
the defences of insanity, automatism, intoxication, self/public defence and consent.
In terms of the defence of insanity, a first problem is that the definition of insanity was set out in the
M'Naghten Rules (eighteen forty three). At this time medical knowledge of mental disorders was
much more limited than it is today. Another problem is that the definition of insanity has become a
legal definition rather than a medical one. This has meant that people suffering from certain mental
disorders do not come within the rules of insanity, meaning they cannot use the defence. For
example, Byrne who was a sexual psychopath could not plead insanity because he knew that what he
was doing was wrong, therefore not satisfying the M'Naghten Rules. Equally, those suffering from
physical illnesses such as diabetes (Hennessy) and hardening of the arteries (Kemp) are considered
legally insane, just because there is an internal cause for their actions and this may respond to
treatment. The defence of insanity also overlaps with automatism, and it is not clear which is the most
appropriate defence to use and when. This is unsatisfactory as someone using the defence of
automatism successfully is entitled to a full acquittal, whilst a person who is found "not guilty by
reasons of insanity" must be made subject to some kind of order.
The position of diabetics is also confusing as the legal definition of insanity allows some diabetics to
be classes as insane whilst others are not. For example, in Sullivan he was classed as insane, however
in Quick the cause of automatism was seen as being the external drug, therefore not insane. The use
of the word "insanity" is also unsatisfactory as it carries a social stigma, and is not appropriate for
people suffering from diabetes or hardened arteries, like in Hennessy and Kemp. Proving insanity is
also problematic as the decision is made by the jury, which is inappropriate and unsatisfactory.
Various possible reforms have been proposed by the Butler Committee (1975) and the Low
Commission (1953 and 1989), the most convincing being the proposed extension of the M'Naghten
rules to include a D "incapable of preventing themselves", widening the definition to include those
suffering from irresistible impulses.
For the defence of intoxication, the first problem is that some part of the defence seem to be
contrary to the normal rules on the actus reus and mens rea. This is seen in Majewski where the
decision that D is guilty of a basic intent offence because getting drunk was a "reckless course of
conduct", ignores the idea that the actus reus and mens rea must coincide at some point in an
offence. Here, the D's decision to drink may have taken place hours before the actus reus takes
place. Furthermore, by getting recklessly intoxicated D takes a general risk of doing something
stupid when drunk, but at the time of getting drunk, D might have no idea he will commit an offence.
Normally recklessness means that D must know there was a risk of the offence being committed, but
this line is not followed here. In the area of involuntary intoxication, the decision in Kingston, makes a
D guilty if he had the mens rea before the involuntary intoxication takes place. This ignores the fact D
was not to blame for the intoxication, and seems unfair. One possible reform is to follow the decision
given in Richardson and Irwin rather than Majewski. This is getting the magistrate or jury to consider
whether the D would have realised the relevant risk if he had not been drinking.
In terms of self/public defence, problems have arisen over the issue of the pre-emptive strike. This
issues does not appear to be relatively clear in that you can act to prevent force. This was hekld in
AG's Ref (number two of 1983). Another problem is where D uses excessive force is self defence.
Currently the judge is only allowed to take any issues of self defence with excessive force into
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However, where D is guilty of murder Martin and Clegg, the judge
has no discretion and must pass the mandatory life sentence. This seems unfair and unsatisfactory. A
final issue here is the relevance of D's characteristics. For example in Martin, psychiatric evidence
suggested D perceived danger more acutely than an average person, but it was decided that this
was not relevant to the issue of excessive force.…read more