Ideas for a Qu 2 Response on Insanity

  • If the defendant falls under the scope of the M'Naghten rules then they may get the special verdict 
  • This is 'not guilty by reason of insanity' 
  • The special verdict leads to disposal options (Hospital Orders, Supervision Orders and maybe an absolute discharge)
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  • Created by: Saima
  • Created on: 23-12-12 17:54

Disease of Mind

  • Any mental disorder which manifests itself in violence and is prone to recur 
  • This definition is legal not medical (Source 2, Line 17)
  • TINDAL said that the rational is for people who shouldn't be convicted because they have a lack of intelligence or reasning power or ability to foresee consequences (Source 2, Lines 22-35)
  • Disease of body and Disease of mind are the same (KEMP 1957)
  • This definition includes medical illnesses as well as physical illnesses (SULLIVAN 1984), (BRATTY 1963), HENNESSY (1989) and BURGESS (1991)
  • 'Mind' has been interpreted in the ordinary sense of the mental faculties of reasoning, memory and understanding
  • It doesn't have to be permanent but present at the time of offenence
  • It can be functional or organic, which manifested itself in violence (Source 3, Lines 32-33)
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Defect of Reason

  • Disease of Mind must lead to a Defect of Reason 
  • This means that the defendent is incapable of reasoning
  • If the defendant is capable of reasoning but failed to use those powers - this doesn't count as a Defect of Reason 
  • CLARKE - had a temporary absent mindedness but this doesn't amount to a defect of reason
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Impair D's ability to understand the nature/qualit

  • This refers to the physical nature of the act 
  • Did the defendant know what he/she was doing?
  • A jury must be satisfied that the defendant didn't know that what he/she was doing was legally wrong (It doesn't mean knowing whether what he/she was doing was morally wrong)
  • D may be insane if he/she didn't know what he/sshe was actually doing 
  • This covers 2 situations

1) If D was unconscious or asleep he/she wouldn't know what he/she was doing                          (BURGESS)

2) If conscious, D might think he's attacking something else but its actually a person.                  Therefore, the defendant doesn't understand what he/she is doing.

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D was unaware that his/her conduct was wrong

  • If D knew the nature and quality of the act but still didn't realise it was wrong 
  • The D can still come within he rules of insanity 
  • If D insits that it was right for him to kill, D would be aware that he has killed but it was believed to be wright, therefore he was doing no wrong 
  • If D realised the nature and quality of the act and realised that they were doing wrong
  • Then D can't doesn't fall under the scope of the M'Naghten rules 
  • Does 'Wrong' mean legally wrong or morally wrong 
  • WINDLE 1952 - CA clarified the position when Lord Goddard said that 'wrong means legally wrong' 
  • JOHNSON 2007 - CA reconsidered the decision in WINDLE. They thought it was strict but decided to follow it 
  • In England and Wales, 'wrong' means 'legally wrong' 
  • In Canada and Australia the courts don't follow WINDLE as they defined 'wrong' as morally wrong not legally wrong 
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1991 Act and 2004 Act

  • These Acts have tried to make the aituation easier by giving the judge wider powers to deal with D in the even of a special verdict of 'not guilty by reason of insanity'
  • The special verdict was developed out of the Trial of Lunatics Act 1883
  • Before 1991 a judge had to order the defendant to be detained in hospital
  • This led to D's changing thier pleas to guilty when they were porbably innocent 
  • The special verdict was seen as the 'psychiatric equivalent of a life sentence' (Source 4, Line 10)
  • Since 1991 the situation has improved because the judge has more discretion in terms of sentences, although the stigma of insanity remains 
  • In cases of murder, a restriction order must accompany any hospital order 
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Criticisms of the M'Naghten rules

  • They seem very outdated and modern scientific knowledge has not been taken into account 
  • Parliament needs to review this area of law and update the definition of insanity 
  • There is an overlap with automatism which has created uncertainty 
  • The definition of insanity has become a legal one rather than a medical one
  • Psychopaths who suffer from irresistible impulses don't come under the M'Naghten rules because they know what they are doing and that it is wrong, There is no irresistible impulse defence 
  • There is a confusing situation where the rules applu to people who are not within medical insanity - SULLIVAN, BRATTY, HENNESSY and BURGES
  • However, they exclude people who are mentally ill - WINDLE and JOHNSON 
  • The emphasis on legality in deciding whether D knew that his conduct was wrong is too narrow 
  • There has been overreliance on the external factor test that has produced some bizarre results 
  • It has been argued that the law rightly focuses on public protection but at the expense of the defendant 
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Criticisms Continued & Reforms

  • The stigma of the word 'insanity' means that few use the defence. 
  • 9,000 people in prison have mental illnesses, but the Law Commission says that there are 30 successful pleas of insanity 
  • This is an improvement as there were only 25 successful pleas from 1974-1996
  • In murder cases only, the defence of insaniyt overlaps with diminshed responsibility 

Proposals for Reform 

  • The word 'insanity' itself is not appropriate and the Law Commission proposed suggested changes to the wording 
  • Reform is long overdue and should be focused on a redefinition  of legal insanity within the M'Naghten rules 
  • They want to change the special verdict to 'not guilrt by reason of a mental disorder'
  • They want to change terms such as 'Disease of Mind' and 'Defect of Reason'
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