Evaluation Flashcards
Issues with insanity
- Legal definition
- Burden of proof
- Ineffective verdict
- Social stigma
- Overlap with automatism
Insanity - burden of proof
The defendant has to prove the defence on the balance of probabilities which can be misleading for juries due to the fact that arguably it should not be up to them to determine someone as being insane, as it should be up to the medical experts.
The reverse burden is contrary to the fundamental principles of English law and arguably in breach of article 6 ECHR which states that the defendant is innocent until proven guilty
Insanity - Social stigma
The use of the word insanity is very derogatory. Many people with a recognised medical condition would term themselves as being insane. It is bad enough to describe those with mental conditions as being insane but, it’s definitely inappropriate to describe those with conditions such as diabetes or epilepsy as being insane. Some defendants will not use the defence simply because of the negative connotations, which leads those who may be convicted of serious crimes and not deserve to be due to the fact they did not use the defence they were entitled to.
Insanity - Overlap with automatism
It can be very difficult to determine whether or not that an individuals automatic state was die to an internal or external factor. The difficulty usually lies with diabetics and epileptics and those whose physical conditions can affect the mind. The consequences can be catastrophic, due to the fact that those with a successful automatism defence leads to acquittal, but those who have a verdict of NGRI usually result in having a hospital order.
Issued with consent
- Inconsistencies in case law
- Consent and Euthanasia
- Consent and Sexual Offences Act 2003
- Horseplay Exemption
Consent - consent and euthanasia
No one is able to consent to their own death, even if you assist someone to take their own life and they are terminally ill, that is still murder. This means that if a terminally ill person chooses to die they will need to commit suicide. This becomes a problem if they are physically unable to, which is a very outdated approach and other countries have a more liberal stance eg Switzerland and the Netherlands. The decisions in Pretty & Purdy lead to the DPP to creat guidelines as regards to assisted suicide.
Consent - Inconsistencies with case law
It is difficult to reconcile the decisions made in Brown & Wilson. In brown the court held that consent could not be a defence to homosexual sadomasochism but in wilson it was a defence for sexual pleasure. So the difference in wilson it was held to be the same as tattooing but this decision was inconsistent with Emmett involving high risk sexual activity.
Consent - Horseplay exception.
This is effectively friendly violence between those of a similar age, even where such behaviour results in serious injury, the courts have held that consent can be a defence. It is surprising to suggest that the aggressor did not have the mens rea, not even recklessness. Kt is even more surprising that the courts have held that honest belief in consent is a defence even in cases like jones and in Aitken where the victims were both violently attacked.
Issues with murder
- The law has developed ‘bit by bit’ and lacks coherency
- The serious harm rule-MR issue of intent to cause GBH
- There is no defence where excessive force is used
- There is no defence of duress
- There is a mandatory life sentence
- The minimum sentencing guidelines further aggravate the situation
Murder - The law has developed ‘bit by bit’ and lacks coherency
The bit by bit development of law has caused problems particularly with the meaning of intention. The main issues surrounding the virtual certainty rule and foresight consequences.
There have been many attempts to explain what this is. Woolin did not satisfactorily classify the law suggesting that intention can be found from foresight of consequences. So it is not certain whether this is actual law or just a rule of evidence, the case of Matthews & Alleyne failed t clarify this by saying there was no real difference between a rule of law and substantive evidence.
This means that the virtual certainty rule is difficult to explain and for juries to understand.
Murder - The serious harm rule
In the 2006 report, the law commission identified that in 1957 when parliament passed the Homicide Act 1957, they never intended a killing to amount to murder unless the defendant realised that his conduct could cause death.
The law commission felt that the current law on murder was too wide. The mens rea does not necessarily correspond to the harm caused, this is felt to be unfair and unjust because it means that a defendant who did not intend to kill will still receive the same sentence as someone who killed in cold blood
Murder - There is no defence where excessive force is used
Self defence is an all or nothing defence, where if the defendant uses too much force then he is guilty of murder, if it is reasonable, he is acquitted
What amounts to reasonable force depends on the defendants honest and instinctive belief at the time of the killing. The difficulty here is that the defendant is unlikely to be thinking clearly or to be able to weigh up a situation.
The outcome can be very harsh for the defendant as he was in a situation which justified the use of some force but he misjudged it and was excessive as highlighted in Clegg and Martin.
Many people feel that this a situation where the defendant is not culpable as a true murderer and should not get the same sentence.
Murder - There is no defence of duress
Duress is where the defendant is threatened with death or serious injury so he takes part in the offence.
Duress is allowed as a defence to almost every crime but not for murder or attempted murder.
So under the existing law a defendant who killed in these circumstances would receive a mandatory life sentence.
This is unfair because there is no recognition that the defendant was placed in an impossible situation.
Murder - There is a mandatory life sentence
Defendants aged 18 or over that is convicted of murder is given a mandatory life sentence (the judge has no option).
Offenders aged 10-17 who are convicted of murder are detained at Her Majesties Pleasure.
This is unfair because it means all murderers are treated the same irrespective of the circumstances.
This means that cold blood killers such as The Wests are treated the same as those who kill out of love or fear or in self defence.
Murder - The minimum sentencing guidelines further aggravate the situation
The minimum tariff is set when a life sentence is given, the judge gets guidance from the sentencing guidelines.
Minimum sentences are set by the Criminal Justice Act 2003. Under the rules Tony Martin would be given the same tariff as a contract killer, so theres no differentiation in levels of culpability.
Issues with Diminished Responsibility
- Burden of proof
- Developmental immaturity
- Intoxication
Diminished Responsibility- Burden of proof
Burden of proof with this partial defence still lies with the defendant.
This is Inconsistent with the principles of English Law and is an anomaly within it.
With most other defences the, the defendant only needs to raise it and it is then up to the prosecution to disprove it.
Furthermore, it can be argued that this is inconsistent with Article 6 of the European Convention on Human Rights - the right to a fair trial.
Diminished Responsibility - Developmental immaturity
The law commission suggested the developmental immaturity in those under 18 should be included within the definition of DR. This is because there is plenty of evidence to suggest that the frontal lobes of the brain (which are responsible for controlling impulsive behaviour) do not develop until the age of 14.
The government decided there was no need for a definition due to the fact that conditions such as learning difficulties and autism are recognised medical conditions, but development immaturity is not the same as a learning difficulty
Without the definition, children as young as 10 can be convicted of murder when they are developmentally immature-ie they cannot control their impulsive behaviour because of their age, and therefore cannot rely on the defence of DR
Diminished Responsibility - Intoxication
There are still issues remaining about how the defence should be applied if the defendant is intoxicated and also suffering from an abnormality of mental functioning due to being addicted to a substance.
The court expects the jury to only consider how much alcohol the defendant needed to satisfy their addiction and then disregard anything that was consumed beyond that.
This a very difficult, if mot impossible, task s by their very nature, addicts will generally consume as much of their addiction as possible.
Issues with Loss of Control
- Loss of Control
- Sexual Infidelity
- Fear of Serious Violence
- No Defence If The Defendant Is Acting Put Of A Considered Desire For Revenge
Loss of Control - loss of control
There was a proposal to remove the criteria of loss of control altogether.
This was due to a number of factors, but particularly because many people, especially battered wives, kill out of a combination of factors.
The government did not adopt this position and therefore the defence is unhelpful to a number of people
Loss of Control - Sexual Infidelity
Under the old law of provocation a person could kill their partner and be able to successfully rely on the defence of provocation if it had been established that the spouse/partner had been having an affair.
The law recognised that if someone discovered such knowledge about their partner they would usually be very angry and are likely to lose their self control.
However, this was specifically excluded as a trigger for loss of control under CJA 2009. The case of Clinton has made an attempt to soften this by suggesting situations in which the discovery of an affair may be relevant, but this is only as far as the circumstances of the offence.
Loss of Control - Fear of Serious Violence
This qualifying trigger was included in order to help cover situations such as those in Clegg and Martin.
This creates a rather peculiar situation in that the jury are being asked to decide if someone who acted in fear of serious violence has ‘lost control’.
Surely this is a bit of a circular test, in that they are reacting to a situation that they are in.
The very particular facts of both Clegg and Martin may still also make it very difficult for defendants to use this defence as they were not necessarily in fear of serious violence - Martin was trying to prevent his home being burgled and Clegg was trying to protect the barracks he was patrolling.
