Criticisms of Insanity

Points to use for the criticisms of murder essay


House of Commons Debate 1967 Dr Winstanley

  • the rules formulated from M'Naghten are still in force despite being constantly subjected to criticism and attack, not only by medical profession but by lawyers and members of the general public
  • as long ago as 1874 Lord Bramwell said that present law lays down such a definition of madness that nobody is ever mad enough to be within it
  • the M'Naghten rules provide a basis but not a satisfactory one
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The Shift of Burden of Proof

  • different standard of proof depending on whether the defence or prosecution raise issue of insanity
  • this is likely to confuse the jury or to be deemedd irrelevant
  • conflicts with Woolmington v DPP principle that the burden is always on the prosecution to prove the offence not the defence
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The Definition of Insanity

  • definition of insanity is said to be 'medically irrelevant'
  • legal definition has not advanced significantly since 1843
  • in 1953: evidence given to Royal Commission on Capital Punishment that even the doctors regarded legal definition to be obsolete and misleading
  • distinction between internal and external factors relating to diabetes, and hyperglycaemia and hypoglycaemia, is particularly complicated
  • no one would recognise that a diabetic person was insane purely as a result of their condition
  • rules do not distinguish between defendants who represent a public danger (which is supposedly the main purpose of the special verdict) and those who don't
  • ilnesses such as diabetes and epilepsy can be controlled by medication
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The Ineffectiveness of the Verdict

  • finding of insanity can mean an idefinite stay in a secure mental hospital however if D pleads guilty to an offence he will be give a specific sentence
  • even when a life sentence is mandatory, defendants will recieve a minimum tariff
  • given choice, most Ds prefer to plead guilty and recieve a conviction and sentence
  • Ds are also put of from pleading insanity by the stigma attached to being labelled insane
  • this means that insanity is a very unpopular defence and is only raised in a small muber of cases each year
  • Article 5 of the European Convention on Human Rights says that a person of unsound mind may only be detained where proper account of objective medical expertise has been taken
  • This does not always happen when someone pleads insanity - it is likely to be a human rights challenge on all indeterminate sentences
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The Scope of the Defence

  • Butler Committee reccommended that proof of severe mental disorder should be sufficient to negate responsibility (this would create presumption of no criminal responsibility where there is proof of a severe mental disorder)
  • However, this assumes a lack of criminal responsibility simply because there is evidence of some sort of mental dysfunction rather than establishing a standard of criminal responsibility
  • this questions the application of the defence of all crimes rather than only those involving mens rea
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Law Reform

  • The Law Commission's tenth programme of Law Reform includes: Project 7: Unfitness To Plead and The Insanity Offence which states "1.20 The current law is based on rules formulated in the first half of the 19th century when the science of psychiatry was in its infancy. Those rules are in need of reform. There are important unresolved issues which inlude the scope of a trial of the facts following a finding of unfitness to plead. In addition, there is a need to reconsider the relationship between automatism and insanity, and that between diminished responsibility and insanity."
  • In July 2012 Law Commission published a scoping report on insanity which seeks to investigate how the defence is working in practice before suggesting proposals for reform
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