Evaluation of the general defences (Insanity and Intoxication)

This is a model essay I wrote on insanity and intoxication. Hope you find it useful :)

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Evaluation of the General Defences: Insanity & Automatism and
The defences of insanity and Intoxication has been criticised a lot and many has called for
reforms to the defences.
The law on intoxication is heavily grounded on public policy. This is because; intoxication is a
major factor in the commission of many crimes. Plus, there's a need to balance the right of
the defendant and the victim; if intoxication were always to be a defence then victims' rights
would not be protected. Most of the criticisms of intoxication can be seen in Majewski,
where the court held that by being intoxicated the D was taking a general risk of committing a crime,
they may have no idea that they will commit an offence but do. For basic intent crime, recklessness is
enough as long as it can be proven that D knew of the risk. This is why the Law Commission stated
that the Majewski rules are unfair and arbitrary. Also, in Majewski, the D was found guilty
because it was a `reckless course of conduct', which contradict the rule that the AR and MR
must coincide, as the decision to drink may be several hours prior to the AR. As seen in
Kingston, when the defendant is involuntary intoxicated, they can still be found guilty if they
were capable of forming the necessary MR. This ignores the fact that the defendant was not
to blame for the intoxication. Intoxication can act as a complete defence to some specific
intent crime, such as theft, with no corresponding basic intent crime to fall back on.
However, if used as a defence to murder, the D can be found guilty of manslaughter and if
used for s18 OAPA, they can still be found guilty of the lesser offence of s20. This creates
inconsistency and injustice if there is no lesser offence to fall back on.
A major problem with insanity is the definition, which is said to be medically irrelevant as the
court only use a legal definition. This means, those who are medically insane are not covered
by the M'Naghten rules, if they know the nature and quality of their act, but are unable to
control themselves, e.g. those suffering from irresistible impulses like Byrne. In addition the
legal definition dates back to 1843 and fails to take into account the huge developments
that have occurred ever since. Also, the word `insanity' carries a social stigma and is
inappropriate to apply to those suffering from disease such as diabetes as in the case of
The law on insanity and automatism is so intertwined that it can cause confusion as to which
one to use. The only difference is that insanity is caused by internal factors and automatism
by external factors. Distinguishing between internal and external factors has been criticised
as leading to illogical and irrational distinctions, such as that drawn between Quick and
Hennessy. Here, both defendants suffered from diabetes, but only one could plead insanity
because the other had taken his insulin. However, the reason for this distinction is that an
internal factor is likely to recur and therefore more dangerous.
There is a different standard of proof depending on which side raises the defence, which is
likely to confuse the jury. If prosecution raises the defence, they must prove it beyond all
reasonable doubt. But, if the D raises the defence, he must prove it on the balance of

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Critics have argued the burden of proof being on the D undermines the idea
that the D is innocent until proven guilty and therefore, in breach of Article 6 of the
European Convention on Human Rights.…read more



really helpful thank you :)

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