Mental Capacity Defences

Question 1

What is ‘Insanity’

Answer 1

• Insanity is a full defence to a criminal defence that requires mens rea.
• The burden of proof, based on the balance of probabilities is on the defence.
• M’Naghten (1843) led to the creation of a legal set of rules for insanity. There must be:
1. A defect of reason.
2. Which must be the result of a disease of the mind.
3. Causing the defendant not to know the nature and quality of their act or not know they were doing wrong.

Question 2

What is ‘Automatism’

Answer 2

A legal defence, arguing that a person cannot be held responsible for their actions because they had no conscious knowledge of them.

Question 3

What is ‘intoxication’

Question 4

What are the Mental Capacity Defences?

Answer 4

Insanity, Automatism, Intoxication

Question 5

What counts as ‘defect of reason’? (Insanity)

Answer 5

• If the defendant’s powers of reasoning are impaired, then this is defect of reason and insanity. If they are simply absent-minded or confused, it is not – R v Clarke (1972).

• Defect of reason must be caused by disease of the mind – a legal, not a medical term. This means any disease that affects the mind. R v Kemp (1956).

• R v Sullivan (1984) deals with epilepsy. In this case, the final ruling was that the disease can be any part of the body provided it has an effect on the mind.

• In R v Hennessy (1989), high blood sugar levels due to diabetes were also classed as insanity because they too affected the mind.

• R v Burgess (1991) ruled that in some cases, sleep-walking can come under insanity also.

• If the cause of the defendant being in a state of not knowing what they are doing is external (such as a blow to the head), then this is not insanity – R v Quick (1973).

• If the defendant takes an intoxicating substance which causes a temporary psychotic episode, this is also not insanity. R v Coley (2013). This is voluntary intoxication.

Question 6

What counts as ‘not knowing the nature and quality of the act’? (Insanity)

Answer 6

• If the defendant is in a state of unconsciousness or impaired consciousness, this satisfies this part of the M’Naughten Rules.

• If they are conscious, but owing to their mental condition do not understand what they are doing, then this will also work for this part of the test.

• In R v Oye (2013), the Court of Appeal decided that the defendant did not know the nature and quality of his act and substituted a conviction for ABH with one of not guilty by reason of insanity.

• If the defendant knows the nature and quality of their act and that it is legally wrong, despite suffering from a mental illness, they cannot use the defence of insanity – R v Windle (1952). The special defence of diminished responsibility did not exist in 1952, so Windle could not use it.

• There is a distinction between morally wrong and legally wrong. If the defendant does not believe what they have done is morally wrong, this doesn’t matter. All that matters is they understand it was legally wrong – R v Johnson (2007).

Question 7

What are the options to a judge if a defendant is found not guilty by reason of insanity?

Answer 7

Since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, judges can:
- Send D to a mental hospital.
- Impose a hospital order (with or without restrictions on terms of release).
- Issue a supervision order.
- Issue an absolute discharge.

• If the charge was murder, then an indefinite hospital order must be imposed. A release can only be granted in this instance with the consent of the Home Secretary.

Question 8

How is insanity law evaluated?

Answer 8

• M’Naghten Rules – date from 1843, a time when knowledge of mental disorders was limited.
• Legal definition of insanity – two issues here. 1. Certain mental disorders are not covered, such as irresistible impulses, Byrne (1960). The defendant knows that what they are doing is wrong, but they cannot control their urges. 2. People suffering from certain physical illnesses can be considered legally insane. Even sleep walkers can come under the definition of insane, Burgess (1991).

Question 9

What are the types of ‘automatism’ and what are the differences between them?

Answer 9

• There are two types of the condition: insane automatism and non-insane automatism.
• In legal terms, insane automatism is caused by a “disease of the mind”, while non-insane automatism is linked to external factors, such as a blow on the head or an injection of a drug.

Question 10

What are the overlaps between ‘insanity’ and ‘automatism’?

Answer 10

• However, the distinction is primarily a legal one - the medical profession is unconvinced that there is any substantive difference between ‘insane automatism’ and ‘insanity’.
• It is ridiculous to assume that diabetics are as ‘insane’, but even more so that they have to rely on different defences according to whether it was the drug or the disease itself that caused the automatic state. Hennessy (1989) – insanity, Quick (1973) – automatism.
• The courts are reluctant to allow the defence of automatism because it will lead to a full acquittal, whereas on finding of not guilty by reason of insanity, the judge has to impose an order.

Question 11

Criticisms of Insanity

Answer 11

• In 2013, the Law Commission published a report on the use of the word ‘insanity’. It suggested that it is entirely inappropriate to label those with diabetes or epilepsy as ‘insane’ and insulting to those with mental disorders. Despite this, the word remains in law.
• There are also problems with placing the burden of proof on the defendant that they are insane. This could be in breach of Article 6 of the European Convention on Human Rights. It is also inappropriate to allow a jury to decide whether somebody is insane when this should be left to medical experts.
• Given the fact that the jury decide, there is the risk that they may be confused by the medical terminology or so revolted by the crime that they disregard the medical evidence and find the defendant guilty. This is what happened in the case of Peter Sutcliffe, the Yorkshire Ripper and Oye (2013).

Question 12

What was the decision in Windle (1952)?

Answer 12

A defendant who is suffering from a serious mental illness and does not know his or her act is morally wrong cannot have a defence of insanity if they know that their act is legally wrong.

Question 13

What did the Law publish in 2013 regarding insanity?

Answer 13

In 2013, the Law Commission published a report on the use of the word ‘insanity’. It suggested that it is entirely inappropriate to label those with diabetes or epilepsy as ‘insane’ and insulting to those with mental disorders. Despite this, the word remains in law.

Question 14

What is a problem with using a jury in insanity cases?

Answer 14

Given the fact that the jury decide, there is the risk that they may be confused by the medical terminology or so revolted by the crime that they disregard the medical evidence and find the defendant guilty. This is what happened in the case of Peter Sutcliffe, the Yorkshire Ripper and Oye (2013).

Question 15

What is insane automatism?

Answer 15

-A disease of the mind within the M’Naghten rules.
- Verdict will be not guilty by reason of insanity.
- E.g. sleepwalking.

(Exactly the same as insanity) …problem…

Question 16

What is self-induced automatism?

Answer 16

• When the defendant knows that their conduct is likely to bring about an automatic state. R v Bailey (1983).

If automatism is self-induced (usually this would mean not following medical instructions) then it will result in the defendant not being able to control their actions.

Question 17

What is non-insane automatism?

Answer 17

• A defence when the actus reus of the crime committed by D is not voluntary.
• The defendant must also not have the required mens rea.
• Cause of the automatism must be external such as a blow to the head, sneezing etc.
• Hill v Baxter (1958).
• R v T (1990).
• Reduced or partial control of one’s actions is not sufficient for non-insane automatism. There must be ‘total destruction of voluntary control’. Attorney General’s Reference (No.2 of 1992) (1993).

Question 18

What are Specific intent offences in self-induced automatism?

Answer 18

if the offence the defendant is being charged with requires a specific intent mens rea, like murder, then they can rely on a defence of automatism because they lack that required mens rea.

Question 19

What are basic intent offences in self-induced automatism?

Answer 19

• If D has been reckless in getting into the state of automatism, then they cannot rely on the defence of automatism because subjective recklessness is the sufficient mens rea.
• Becoming voluntarily intoxicated through drink or drugs is also no grounds for a defence of automatism. In DPP v Majewski (1977) this was clarified as a reckless course of conduct.
• If the defendant is not aware that their actions are likely to lead to a self-induced automatic state in which they might commit a crime, they have not been reckless and can rely on the defence. R v Hardie (1984).

Question 20

AO1 for insane automatism

Answer 20

• M’Naghten rules.
• Defect of reason arising from a disease of the mind so that D did not appreciate the nature
and quality of his acts or know what he was doing was wrong.
• Applying Clarke, defect of reason was more than mere absent mindedness
• Burgess confirms that sleep walking is a disease of the mind.
• Applying Codere, the defendant clearly did not know the nature and quality of his acts as he
was not conscious of what was happening.

The starting point is that all defendants are presumed sane so the burden is on John to establish on the balance of probabilities. If successful it will result in a special verdict of not guilty by way of insanity.

Question 21

AO1 for non-insane automatism

Answer 21

• Something was done by the defendant’s muscles without the control of his mind or an act done by a person who is not conscious of what he is doing.
• Need to show: (i)Total loss of voluntary control as per Broome v Perkins (ii) external factor as per Quick.
• Clear from the facts that John was not conscious of what he was doing at the time and he had suffered from a total loss of voluntary control as he was asleep.
• If it can be argued in line with Quick, that the external factor of the oil caused the reaction then this will be sufficient.
• Specific/basic distinction is irrelevant here as John was not reckless in becoming an automaton and therefore will likely be acquitted.

Question 22

What is the law on ‘Voluntary Intoxication’?

Answer 22

• If the defendant has voluntarily made themselves intoxicated they have not formed the necessary mens rea for a specific intent offence and are not guilty. Specific intent offences are murder, s 18 OAPA, theft, robbery and burglary. DPP v Beard (1920).

• In A-G for Northern Ireland v Gallagher (1963), if the mens rea is formed before the offence is committed then voluntary intoxication is not a defence.
• If the offence is one of basic intent, then intoxication is not a defence. In these cases, recklessness, such as voluntarily getting drunk or high is enough for the required mens rea – DPP v Majewski (1977).
• If the defendant is suffering from a mental disorder brought about by past voluntary intoxication, then they can use this as a defence – R v Harris (2013).

R v Sheehan and Moore (1975) - Not murder (specific intent) as required mens rea is not there; therefore it was manslaughter (basic intent) (recklessness)

Voluntary intoxication (through the case of Beard) means that if you are incapable of forming the required mens rea (which we need to prove for specific intent offences) then it can be used as a defence (partial).

On the other hand, if it is a basic intent offence, then recklessness will suffice.

Question 23

What is the law on ‘Involuntary Intoxication’ ?

Answer 23

• If the defendant for instance, drinks a soft drink that has been laced or takes prescribed drugs that had an unexpected result, then they did not have the required mens rea and could use the defence of involuntary intoxication – R v Hardie (1984).
• If however they DID have the required mens rea when they committed the offence, despite being involuntarily intoxicated, it is not a defence – R v Kingston (1994).

Usually a defence but will depend upon whether the defendant was able to still form the mens rea

Question 24

What is the law on ‘Intoxicated Mistakes’?

Answer 24

• This depends. If D is mistaken about a key fact because they were intoxicated, then they have a defence if it is a specific intent offence.
• If the defendant has the basic intent for a particular offence, such as in R v Lipman (1970) when D, under the influence of LSD had hallucinated that his girlfriend was a snake and choked her to death, there is no defence of intoxicated mistake because he had voluntarily taken drugs and the killing was as a result of reckless behaviour – guilty of manslaughter.

If the mens rea is reckless (or basic intent) then there is no defence as the defendant chooses to be intoxicated

R v Hatton (2005) - A drunken mistake about the amount of force required in self-defence was not a defence because the defendant was defending the drunken mistake of the amount of force used not that he didn’t have the mens rea to murder the victim

R v O’Grady (1987) - Since he was being charged with manslaughter, which is a basic intent offence, his defence of an ‘intoxicated mistake’ was not sufficient because his behaviour was reckless

Question 25

Can ‘self-induced automatism’ be used as a defence for specific intent offences?

Answer 25

Yes, as the defendant lacked the specific mens rea, not specifically intending to (for example) murder someone

Question 26

Can ‘self-induced automatism’ be used as a defence for basic intent offences?

Answer 26

If D has been reckless in getting into the state of automatism, then they cannot rely on the defence of automatism because subjective recklessness is the sufficient mens rea.

Becoming voluntarily intoxicated through drink or drugs means a defence of automatism is not possible. In DPP v Majewski (1977) this was clarified as a reckless course of conduct.

If the defendant is not aware that their actions are likely to lead to a self-induced automatic state in which they might commit a crime, they have not been reckless and can rely on the defence. R v Hardie (1984).

Question 27

What is the statutory law on ‘voluntary intoxication’ now?

Answer 27

• Criminal Justice and Immigration Act 2008

• A drunken mistake caused through involuntary intoxication cannot be
  relied upon as a defence.
• S 76(5) whilst reasonable force may be used in the purposes of self defence, defence of another or prevention of crime, this does not enable D to rely upon any mistaken belief attributable to intoxication that was voluntarily induced.
  • There is an exception however to the rule on intoxicated mistake. Under the Criminal Damage Act 1971, s 5 if the defendant has an honest belief that the person to whom property belonged would have consented to the damage (even if this belief is justified or not), then a defence where the mistake was made through intoxication can be used – Jaggard v Dickinson (1980).

Question 28

Evaluation of the law on intoxication

Answer 28

• On the one hand, people are free to make the choice to become
  intoxicated if that is what they wish.
• On the other hand, there is what we refer to as the paternalistic argument – that the state has a moral duty to control the consumption of intoxicating substances as they are the major reason for a lot of social disorder and crime, as well as putting a strain on social and health services. Victims of crime also need to have their rights upheld.
• It is because of the paternalistic approach that the use of intoxication as a defence is limited.

Question 29

What are the problems with the mens rea in intoxication?

Answer 29

•Usually, mens rea and actus reus must coincide, yet with basic intent offences, whilst getting drunk is a reckless course of conduct, there may be quite a time lapse between the decision to drink and committing the actus reus of any offence.

Question 30

What are the proposals for reform for intoxication?

Answer 30

Law Commission Report 2009 - ‘Intoxication and Criminal Liability’:

• The terms ‘specific intent’ and ‘basic intent’ should be abolished and categorised as when mens rea is an integral fault element and those where mens rea is not
  Voluntary Intoxication
• Where mens rea is not an integral fault member, D should be treated as being aware of anything he would have been aware of if they had been sober
• This would not apply to offences where the mens rea involved intention as to a consequence, knowledge, fraud or dishonesty
  Involuntary Intoxication
• There should be a list of situations which would count as involuntary intoxication, including: spiked drinks, D being forced to take an intoxicating substance, D reasonably believing a substance was not an intoxicant, and where a substance was taken for a ‘proper medical purpose’.
• Where D was involuntary intoxicated, then this should be taken into account in deciding whether D acted with the required mens rea.

Question 31

Can the defence of insanity be used in strict liability cases?

Answer 31

No