• Created by: Nikki
  • Created on: 01-05-15 10:25


Age of criminal responsibility = 10 years

Doli incapax --> incapable of knowing what was wrong

  • assumption that children aged 10-14 didn't know what was right or wrong so prosecution had to prove that they did
  • abolished by Crime and Disorder Act 1998, s34
  • R v JTB (2009) confirmed that Act got rid of doli incapax role completely

In E&W a child over 10 can be tried and convicted as an adult

  • too harsh?
  • age higher in other European nations
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Fitness to plead

D's mental capabilities at time of trial

More of a procedural rule --> question asked if D has sufficient mental capacity to participate in a trial

As of 2004, question for judge

Where found unfit, D removed from court room --> still a question of if D did act --> even if D doesn't have capacity to stand trial, there is a trial of fact (by jury)

If D found guilty, judge has discretion as to consequences for D --> often some form of medical supervision

About 100 successful pleas per year

Law Commission 2010 proposed that test should be changed --> shouldn't ask if D understands what's going on, but whether D can communicate with lawyers and give instructions on how they want trial to be conducted --> D's decision making capacity at trial

This would widen scope of plea

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Insanity (1)

D's mental capabilities at the time of the offence

Special verdict --> prosecution has proved all relevant aspects but still not guilty by reason of insanity

M'Naghten Rules -->

  • 1843 case lays down rule for insanity
  • law's understanding of insanity is narrower than psychiatric understanding
  • D must be:
    • suffering from a DEFECT OF REASON
    • caused by a DISEASE OF THE MIND
    • which either
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Insanity (2)

Defence of reason caused by a disease of the mind

  • 'impairment of mental functioning caused by a medical condition'
  • cognitive, not volitional
  • not concerned with other emotinal disorders that affect D's ability to control himself

Disease of the mind

  • any disease which affects themind
  • does not have to be a psychiatric condition
  • most common diagnosis is schizophrenia
  • has included epilepsy and sleepwalking
    • Sullivan (1984) --> attacks man during epileptic fit 
    • Burgess (1991) --> D wounds friend while sleepwalking: attacks her with bottle and video recorder, grabs her neck
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Insanity (3)

Defect of reason caused by disease of the mind which causes D:

  • not to know the nature and quality of the act
    • profound delusions
  • not to know that the act was wrong
    • legally wrong
    • confirmed in Johnson (2008)
    • difference in practice? ('benign conspiracy' between doctors and judges in order to allow defence of insanity)

Burden of proof = on D --> presumed sane until proved otherwise

DIsposal after special verdit

  • before 1991 --> judge had to order D's indefinite detention in secure mental facility until doctor thought D should be let out --> many D preferred to be found guilty of minor crimes instead of pleading insanity
  • after 1991 --> judge has discretion on consequences --> hospital order, supervision order, absolute discharge --> 50% non-custodial today
  • uncommon defence --> averag 15 a year 1991-2001
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Insanity (4)

Insanity = under pleaded --> legacy of pre-1991 rules

  • stigma
  • negative --> not catching the right people
  • unfair that D who is insane would prefer to serve prison sentence?

Reform suggestions

  • Law Commission Scoping Paper 2012
    • difficulties in theory with insanity defence
    • difficulties in practice with insanity defence?
  • Law Commission Discussion Paper 2013
    • too wide (sleepwalkers)
    • too narrow (excludes volitional disorders)
    • potentially in breach of ECHR --> art 6 - burden of proof
  • LC suggestion = abolish insanity defence and replace it with new defence based on lack of capacity --> 'not criminally responsible by reason of a recognised medical condition
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Diminished responsibility

Partial defence to murder (reduces to manslaughter)

Homicide Act 1957, s2(1), amended 2009

  • recognised medical condition
  • must explain D's actions (causal factor)
  • must impair
    • understanding
    • rationality
    • self-control
  • less flexible? --> mercy killings

Dowds (2012) 

  • acute intoxication as recognised medical condition --> but NOT for law
  • law has different concerns to science
  • re-introduces conflict law v medicine?

Concern that law will be inflexible and amek difficult cases more difficult to decide --> rejected by saying that legislations hould be introduced in order to give jurisdiction over these cases

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D who acts like an automaton = no criminal responsibility

  • A-G Ref 2/92 --> 'the defence of automatism requires a total destruction of voluntray control on D's part. Impaired, reduced or partial control is not enough'

Sane automatism

  • external cause
  • driving D and attack of bees
  • Quick (1973) --> hypoglycemia --> insane as external cause

Insane automatism

  • internal cause
  • Burgess & Sullivan
  • Hennessy (1989) --> hyperglycemia --> diabetes as internal cause
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Automatism (2)

Prior fault --> D should not be allwed to take advantage of a condition if it arose through D's prior fault

Bailey (1983) --> self-induced automatism --> took insulin and did not eat enough

Test of foresight: did D foresee the risk of becoming 'aggressive, unpredictable and uncontrolled'?

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Statistical link between intoxication and crime

Law's approach focuses on link between intoxication and mens rea

Specific intent offences --> intoxication as evidence of lack of MR

  • it is not a defence

Basic intent --> intoxifaction is irrelevant

  • intoxication as recklessness

Policy considerations

  • don't want intoxication to apply to all crimes
  • don't want intoxicaitont ob e a way for D to escape all criminal responsibility
  • allow intoxication to have some relevance but hen limits it as a matter of policy 
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Intoxication (2)

Key cases

  • Majewski (1977); Heard (2007); Coley (2013); Hardie (1984); Kingston (1995); Dietschmann (2002)

Reforming intoxication

  • Law Commission 1993
    • abolish Majewski
    • introduce new offence of criminal intoxication
      • drunkenness is the wrongdoing
      • fair labelling
  • Law Commission 2009
    • stay with Majewski
      • but clarify terminology
        • no more specific/basic intent 
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Capacity summary

D who lack capacity totally or partially

  • legal consequences
  • R v Coley (overview insanity, automatism, intoxication & their interaction)

Tension in law

  • law and medicine (insanity, DR)
    • cognitive and volitional abilities (insanity, DR)
  • logic and policy (insanity, intoxication)
    • social protection adn fair labelling (insanity)
    • policy and fair labelling (intoxication)
  • law and morality
    • Kingston (intoxication)
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