Comment on the law of insanity+reforms Flashcards
What is the first major problem with the law on insanity?
the deffiniton
When was the definition of insanity set?
by the M’Naghten Rules in 1843
practically why was there an issue with the deffiniton of insanity under the M’Naghten Rules in 1843?
this is because at the time, medical knowledge of mental disorders was very limited
What is the only area Parliament has reformed in sanity?
the options available to judges when dealing with those found not guilty by reason of insanity.
Prior to the Criminal Procedure Act 1991 what was the only course available to a judge?
to send D to a mental hospital
Since the Criminal Procedure Act 1991 what can a judge now impose?
- hospital order
- supervision order
- absolute discharge
What is the problem with the definition of insanity?
it has become a legal one rather than a medical one
Because the definition of insanity has become a legal one rather than a medical one, what 2 problems has this caused?
- People suffering from certain mental disorders do not come within the deffiniton, such as those suffering from irritable impulses and psychopaths like Byrne as they know what they are doing and that it is wrong however they cannot prevent themselves from acting.
- Those suffering from physical illnesses such as diabetes (Hennessy) or brain tumours or hardening of the arteries (kemp) are considered legally insane. Even a sleep walker (Burgess).
What is the definition of insanity?
-D must be labouring under a defect of reason from a defect of the mind and must either not know the nature and quality of the act he was doing or not know what he was doing
What does insanity overlap with?
automatism
It is necessary to decide whether the defendants automatic state is due to a mental illness or due to external factors. What have the courts decided amounts to insanity?
the courts have decided that those suffering from any illness, mental or physical, which affects their mind or puts them into an automatic state amounts to insanity
Why has the defence of non-insane automatism been removed from those suffering from diabetes and epilepsy?
this is because the courts have decided that those suffering from any illness, mental or physical, which affects their mind or puts them into an automatic state amounts to insanity
Why is it a serious consequence that the defence of non-insane automatism has been removed from such people as epileptics and diabetes?
as those successfully using the defence of automatism are entitled to a complete acquittal whereas on a finding of not guilty by reason of insanity, the judge has to impose some order on the defendant
Why are some courts reluctant to allow defendants to use the full defence of automatism?
this is because it will lead to an acquittal and D will be free from order or supervision
Why are some courts reluctant to allow defendants to use the full defence of automatism even where the erratic behaviour may be a physical illness?
as there is a risk that such a person may commit further offences
What is a positive of extending insanity to cover those who commit an offence because of a physical illness?
as this means these people can be supervised
Following the case of Windle why can a defendant who is suffering from a serious recognised mental illness not have a defence of insanity?
when he knows that his actions are legally wrong
In what case did the COA clearly see merit in the Australian case but were obliged to follow Windle?
Johnson
The word insanity has an unfortunate social stigma and is entirely inappropriate to apply to whom?
to those suffering from such diseases as epilepsy or diabetes
Where does the burden of proof lie for insanity?
with the defendant
As D has to prove that he is insane, what article may this be in breach of in the ECHR?
article 6, innocent until proven guilty
Why is it not appropriate for the jury to decide as to whether D is or is not insane?
as this should be decided by medial experts who can understand technical and complex psychiatric issues
What are the 2 issues with allowing the decision of whether D is insane to go to the jury?
- they have to try and understand complicated medical terminology
- They may be so revolted by the crimes committed that they will refuse to return the verdict to not guilty by reason of insanity
In what case were the jury so revolted by the crimes committed that they refused to return the verdict to not guilty by reason of insanity? (2)
in the case of Peter Sutcliffe
Oye
What happened in the case of Peter Sutcliffe?
D was charged with the murder of several women. All doctors agreed that D had paranoid schizophrenia. Despite this, the jury found Sutcliffe guilty of murder
While the jury convicted Oye of murder, what did the COA do?
they substituted a verdict of ‘not guilty by reason of insanity’
Since what year for defendants with mental illness charged with murder has there been an alternative defence of DR which if successful reduces charge to manslaughter?
1957
Which covers a wider range of mental illnesses, insanity or DR?
DR
IN the 1990’s how many cases a year were relied on by defendants successfully on the defence of DR?
about 50 cases
In the 1990’s how many cases a year relied successfully on the defence of insanity?
c5
Why is insanity not particularly important as a defence for murder?
as the defence of DR is a better alliterative and does not carry the stigma of insanity
In the past 10 years, how many cases have relied on the defence of DR and insanity ?
DR-20
Insanity- 1 or 2
In what year did the Royal Commission on Capital Punishment suggest that the M’Naghten Rules should be extended so that a defendant would be considered insane if he was incapable of preventing himself (e.g Byrne) from committing the offence?
1953
IN 1953 who suggested that the M’Naghten Rule should be extended so that a defendant would be considered insane if he was incapable of preventing himself (e.g Byrne) from committing the offence?
the Royal Commission on Capital Punishment
Instead of following the 1953 suggestion by the Royal Commission on Capital Punishment that theM’Naghten Rule should be extended so that a defendant would be considered insane if he was incapable of preventing himself (e.g Byrne) from committing the offence, what did the government instead do?
they intercede the defence of DR
Although the defence of DR is only given on murder charges, why is this on balance with other offences?
as for other offences, the judge has discretion
Who in 1975 suggested that the verdict be changed to not guilty on evidence of mental disorder?
the Butler Committee
IN 1989 what did the Law Commission’s Draft Criminal Code propose?
that a defendant should not be guilty on evidence of severe mental disorder
IN 1989 who proposed that a defendant should not be guilty on evidence of severe mental disorder?
the Law Commissions Draft Criminal Code
Which proposals changed law?
none
What year did the Law Commission publish a scoping paper on insanity and automatism?
2012
What was the intention of the 2012 Law Comission’s Scoping Paper on insanity and automatism?
the intention of this paper is to discover how these defences are working and what problems lawyer and judges find in them
