Reforms Flashcards
Reforms for insanity
- 1989 Draft Criminal Code
- 1979 butler commission proposed replacing the verdict of “not guilty by reason of insanity”
- Introduction of a lack of capacity defence
- Introduction of a new defence of “not criminally responsible by reason of recognised medical condition” defence.
Insanity- 1989 Draft Criminal Code
The law commission drew this up, they proposed that a defendant should not be guilty on evidence of a severe mental disorder or a severe mental handicap. Under the M’Naughton rules a defendantcannot rely on a defence of insanity based on suffering of a mental handicap
Insanity - Introduction of a lack of capacity defence
Comes from the 2013 Law Commission Report “Criminal Liability”: Insanity and Automatism. It would mean that someone would be exempted from Criminal responsibility if they could not have avoided committing the crime because of a mental disorder or a physical disorder, i.e. people who totally lacked capacity because of a medical condition and through no fault of their own should have a defence. This defence would only be available of the defendant TOTALLY lacked the capacity
Insanity - Introduction of a new defence of “not criminally responsible by reason of recognised medical condition” defence
Comes from the 2013 Law Commission Report “Criminal Liability”: Insanity and Automatism. There would be a new verdict “not criminally responsible by reason of a recognised medical condition” with special disposal powers. The Law Commission also proposes that the definition of recognised medical condition would be based on a condition that is recognised professionally.
Insanity - 1979 Butler Commission proposed replacing the verdict of “not guilty for reason of insanity”.
The new verdict proposed was “not guilty of evidence of mental disorder”. This would have removed much of the social stigma associated with the word insanity and therefore encouraged more defendants to rely on this defence
Proposals for Self Defence
- Make self defence a partial defence to murder
- Abolish mandatory life sentence for murder
Self Defence - make self defence a partial defence for murder
If this happened the defendant would be convicted of voluntary manslaughter rather than murder, this would allow for a discretionary sentence and the judge would have to consider all the circumstances of the case.
Self Defence - Abolish the mandatory life sentence for murder.
This allows the judge to consider all of the circumstances and give the sentence as appropriate. Self defence would mot be all or nothing.
Proposals for intoxication
- 1993 Law Commission Consultation document
- Introducing a defence of intoxication
Intoxication - 1993 Law Commission Consultation document
This document criticised the rule made in the case of majewski, stating that it was arbitrary and unfair and proposed amendment.
The proposals were heavily criticised and by the time the Law Commission published its proposals in 1995 they had changed their opinion and said the law operated ‘fairly on the whole and without undue difficulty’
Intoxication - Introducing a defence of intoxication
The defendant would be acquitted of the offence if he was intoxicated at the time he committed the offence, this is essentially how the defence works in Australia, obviously there are policy arguments against this - do we really want to let defendants get away with serious offences just because they were drunk?
Proposals for Automatism
- 1989 Draft Criminal Code (reflex actions and spasms)
- 1989 Draft Criminal Code (epilepsy and sleepwalking)
- 2013 Law Commission Report Criminal Liability
Automatism - 1989 Draft Criminal Code (reflex actions and spasms)
This is a matter of a definition of what would amount to Automatism.
This would include reflex actions, spasms and convulsions.
This would clarify the whole area of Automatism and would ensure that a wider range of people could use it. This would make the defence sharper and clearer.
Automatism - 1989nDraft Criminal Code (epilepsy and sleepwalking)
This is a matter of a definition of what would amount to Automatism.
This would include epilepsy and sleepwalking.
Cases such as Burgess and Sullivan would be able to use the defence of automatism so this would mean that the defendant in this position would have a full defence and would be acquitted unlike now, where the verdict is NGRI and the judge can order a hospital order.
