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Insanity and Consent
In 2008, the Law Commission published a paper on the "Unfitness to Plead and Insanity Defence".
This identified issues with the insanity defence including antiquity, lack of clarity, and the overlap
The law on insanity can be found in M'Naghten 1843, a case heard 172 years ago. Since then,
society has made significant developments in areas such as psychology and medicine, suggesting
the defence needs updating. Even in 1953, the Royal Commission on Capital Punishment regarded
the M'Naghten rules as obsolete. Also, insanity is a medical defence, so should be defined by
psychiatrists rather than judges, as in M'Naghten. Physical conditions e.g. arteriosclerosis (Kemp)
can constitute insanity, whereas some mental conditions (irresistible impulses in Byrne) are not
allowed. Giving those with physical conditions the defence but denying those with mental
disorders is absurd.
The requirement for a "disease of the mind" distinguishes insanity from automatism, yet the
distinction is not profound. In Bratty Lord Denning defined automatism as "any act done by the
muscles without control of the mind". The distinction between insanity and automatism simply
comes down to whether the cause was external (D granted automatism and acquitted) or internal
(D not guilty, gives a range of disposal options). This line is not always clear. For example, in
Hennessy, D suffered from hyperglycaemia (internal factor) and in Quick D suffered from
hypoglycaemia (deemed to be an external factor). Both had diabetes yet different defences were
given. This is unfair.
Additionally, the idea of special verdicts and disposal options present an issue. For insanity a D can
be given indefinite hospitalisation, treatment orders, supervision orders or absolute discharge.
This is an improvement of the law from 1991, as before this D's (e.g. Hennessy, Kemp, Burgess)
would plead guilty rather use insanity as a defence; as this would result in indefinite
hospitalisation. Since The Criminal Procedure Act 1991, this only applies for murder. However, the
stigma of pleading insanity remains. Although avoiding a custodial sentence, the verdict may affect
career and relationship prospects, self esteem etc.
Consent must balance personal autonomy with public benefit. Consent must be valid and
informed; only those able to consent can do so, and V must consent to both the nature and quality
of D's act. Validity is clear and necessary, it is clear that children (Burrell v Harmer, and those with
mental disorders cannot give consent. Gillick allows flexibility, stating that a child can consent if
they are mature enough to understand the implications of their consent. The current requirement
for informed consent is necessary, protecting V from harm. For example, in Dica, V consented to
sex with V, but not the STI that resulted. As she had not consented to the nature of the act,
consent was invalid. Consent allows personal autonomy, by letting people consent to assault and
battery. People cannot consent to harm (s47+) as it is not beneficial for society. However,
recognised exceptions allow people to consent to more if it is in society's interest e.g. sport. In
Barnes, D was not convicted of GBH as it was in the spirit of the game. However, Billinghurst could
not have the defence for an off the ball incident as it had gone beyond what V had consented to.
Consent's structure is good, as it successfully balances individual autonomy and public protection.
The Law Commission Consultation Paper 139 1995 "Consent in the Criminal Law" provided reform
proposals for consent. V can't consent to serious, disabling injury (clause 2). V can't consent to D
recklessly causing serious disabling injury, unless it is in their best interests e.g. surgery (cl 3). V
can consent to being hurt , but not seriously (V cannot consent to 47+)(cl 5). If D is playing sport in
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Insanity and Consent
accordance with its rules, D cannot be guilty of causing injury (cl 40). This change may cause
further issues. For example, an injury caused offside would be outside the rules of the game,
making D liable for prosecution. However, the fact that sport has been kept as a recognised
exception is good, as it benefits society.
The sexual activities exception was also criticised. In Brown, 5 consenting adults partaking in
sadomasochism were convicted of s47 and 20 OAPA.…read more