Consent and Insanity

Intro-

• Justification and excuse defences. Justification- consent, excuse- insanity.

• The law surrounding these defends has evolved over time, has inconsistencies and competing interests.
• Purpose of criminal law is to prohibit behaviour that represents a serious wrong against society/ an individual. 
• Needs to punish 'wrong-doer', provide justice for family.
  

  P1- First problem of insanity is the stigma. Could stem from the term 'disease of the mind'. Kemp shows it can be physical (arteriosclerosis). Legal instead of medical term- cause confusion for expert witnesses.

• If D successfully please insanity- not certain what judge might order (absolute discharge/hospital order- psychiatric hospital for unlimited time). D's are reluctant to plead insanity (30 cases a year).
• Law Commisson- Discussion Paper on Insanity and Automatism- proposes 'special verdict'- not criminally responsible by reasons of recognised medical condition. Removes stigma, although may still be given hospital order.

P2- Can lead to absurd results. Judges made clear distinction between a lack of control due to insanity and automatism- may lead to a diabetic person being treated in different ways.

• HypERglycaemic state- excessively high blood sugar- Henessy- insanity (diabetes itself causes lack of control). HypOglycaemic state- taking insulin leads to lack of control- Quick- automatism. Not fair/consistent.
• Conditions which involve internal and external causes- ie. sleepwalking (sleep disorder/bad experience). 
• Law is not clear which defence to apply. Lord Justice Davis- distinction between internal/external causes is 'illogical and little short of a disgrace and should be abolished'.
• Law Commission's proposal of replacing 'insanity'- external/internal is irrelevant- would all be under the same defence.
• New proposal may create problems- to rely on this defence, the 'recognised medical condition' must be no fault of D. Ie. alcohol poisoning would be accepted but not if D voluntarily became intoxicated. May be difficulties- certain forms of diabetes where D hasn't eaten properly- could be argued that D contributed towards medical condition- seems unfair.

Consent- First problem with consent- injuries inflicted for sexual gratification (Brown)-defence denied, although all consented. Painful but minor injuires that healed quickly. Wilson- consent was allowed- branding between heterosexual couple- more serious injuries that scarred. Purpose of injury impacts use of defence- morality of situation affects legal decision. Brown- Lord Templeman- 'pleasure derived from pain is an evil thing', D's in 'cult of violence' that society needed to protect itself from. Wilson- Ruseel LJ- 'consensual activity between husband and wife, in the privacy of the matrimonial home is not in our judgement, a proper matter for criminal investigation.

P1(continued)- Arguable that Wilson recieved the defence because it was morally acceptable- union of heterosexual marriage. Brown- group setting. homesexuals, Lord Temple did not appreciate reasoning. Acknowledgement that legal intervention in marital activies should be minimal is questionned when activity involves sadomasochism.

P2- Defence for horseplay even if V wasn't genuinely consenting. V must genuinely consent to the offence- Tabassum. Not if during horseplay- Aitken- suffered 35% burns. D's argued honest belief that consent was gained. Doesn't encourage people to ensure consent is gained/punish those who cause such injuries. Drunken honest belief can warrant the defence. Aitken was asleep- D was drunk.

P3- Actus reus removed in consent, Mens rea in insanity. Jones- mistaken belief in consent. Brown- genuine consent given but not allowed. How far can law go to protect individuals without interfering with individual liberty? Conflicting decisions in Brown and Wilson- law remains unsettled.

Conclusion- Insanity- recommended that proof of a severe mental disorder is enough to negate mens rea/criminal responsibility. M'Naughten rules- based on Victorian notions, no place in modern psychiatry and law. Conflict between genuinely ill/vulnerable and protecting society.

• Law Commission considered reform, remains to be seen if Parliament will enact these suggestions. It is important to distinguish between mitigation and a defence. If D successfully raises a defence, they are found not guilty/lesser sentence. Justification/excuse defences should provide mitigation only- factor only relevant at sentencing stage.