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Insanity and intoxication evaluation
The definition of IS has been said to be "medically irrelevant" as the legal definition has not changed
significantly since 1843. In 1953 evidence given to the Royal Commission stated that the definition
was obsolete and misleading.
A major criticism of IS as a defence is that the M'Naghten rules were created by judges in 1843,
when psychiatric illness was hardly understood, and despite huge developments in understanding
and diagnosing psychiatric illness the rules remain unchanged. In 1953, the Royal Commission on
Capital Punishment described `disease of the mind' as outdated and inaccurate.
The present L can also be criticised for being too wide, including physical illnesses such as diabetes
(Hennessy), heart disease (Kemp), and sleep walkers (Burgess). Additionally, the position of
diabetics is confusing as taking too much insulin is classed as A (Quick) but not taking insulin is IS
(Sullivan). This means that the L makes no difference between people who are a danger to society
and those who suffer from illness which can be controlled by medication.
However, it is also too narrow, as it excludes those who are clinically but legally not insane- the
`defect of reason' test excludes those who know what they are doing but who cannot help
IS also overlaps with A. It is necessary to decide whether the D'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 IS. This has serious consequences as anyone who is able to use A has a
complete defence and will be acquitted.
Detaining Ds who are epileptics, diabetics or sleepwalkers could be in breach of A5 of the ECHR . In
Winterwerp v Netherlands, the ECHR ruled that whether someone is of unsound mind is a matter of
objective medical expertise which conflicts the M'Naghten rules.
In addition, the word IS carries a social stigma as it is completely inappropriate to apply it to those
suffering from diseases such as epilepsy or diabetes.
Furthermore, there is a different standard of proof depending on whether the defence or the
prosecution raise the defence on IS. The prosecution must prove beyond all reasonable doubt, the
defence must prove on the balance of probabilities. It conflicts the decision of Woolmington (1935)
which states that the burden is on the prosecution to prove the offence not the defence. It is
possible that this is in breach of A6 of the ECHR which states that the D is innocent until proven guilty.
In addition, sometimes, the decision of whether or not the D is legally insane is made by medically
unqualified jurors who have to choose between expert psychiatrists.
Following the decision in Windle a D who is suffering from a serious recognised medical illness and
doesn't know that his act is morally wrong cannot have the defence of IN when he knows that his act
is legally wrong. In Johnson (2007) the CA thought that the case had some merit but recognised that
they were obliged to follow Windle.
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For reforms of the defence of IN, The Butler Committee recommended that the verdict of not G by
reason of IS should be replaced by a verdict of not G on evidence of mental disorder. This would
create a presumption of no criminal responsibility where there is a proof of a severe mental
disorder and also solves the issue of social stigma. This means that Ds like Quick could receive
treatment or an absolute discharge, as diabetics generally pose no threat to society.…read more
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Where a D is charged with murder or a S18 OAPA 1861 he can use IT as a defence. However, he can
still be found guilty of a linked basic intent offence. Although, for other crimes there is no `lesser'
offence so if IT is pleaded successfully for theft the D will be not guilty of any offence.
Where the D is IV intoxicated they can still be found guilty if they were capable of forming the
necessary MR as shown in Kingston (1994).…read more