Write a critical analysis of two of the general defences (insanity, automatism, intoxication, consent, self-defence/prevention of crime). Include in your answer a consideration of any proposals for reform of one of your chosen answers.
(25 marks)
This is essay will critically analyse the general defences of insanity and consent, and also proposals for reform of insanity.
Insanity is defined in the M’Naghten rules as a person who suffers from a defect of reason, which is caused by the disease of mind causing the defendant not to know the nature and quality of his act, or that what he was doing was wrong. This in itself is a criticism of insanity as the M’Naghten rules were established in 1843 when our knowledge of mental illness was far less advanced than today. Therefore we need a modern definition of insanity based on modern ideas.
Secondly, many serious mental illnesses do not count as insanity. This can be illustrated in the case of R v Byrne where someone who had tempting desires to kill. This is because the courts have held that the person understands the nature and quality of his act or realise that what they are doing is wrong. Therefore we must question whether it is fair to deny the defence of insanity to those who are seriously mentally ill. The defence of insanity does not recognise an irresistible impulse to commit a crame.
Moving on, the current law on the defence of insanity is based on physical illness. In the case of R v Hennessy the defendant was suffering from diabetes and forgot to take his insulin. This lead to him killing someone; however the courts held that he was insane as the lack of insulin was an internal factor. Another case is R v Burgess, which is where the defendant was sleep walking due to an internal cause and attacked his girlfriend. Again because there was no external factor such as a blow to the head, the courts held that he was insane. Lastly, in the case of R v Sullivan, the D suffered from epilepsy and in the fit attacked an old woman. He was deemed to be insane rather than allowing the defence of automatism.
The justification for this is that a finding of insanity will enable these illnesses to be treated, so that they do not cause trouble in the future. However on the other hand, it is unfair to describe someone as insane when they are not mentally ill.
The word insanity carries a social stigma therefore a less offensive expression should be invented.
The burden of proof is on the defendant to prove that they are insane. In the cases of other offences, the defendant only needs to raise a reasonable doubt to succeed. For insanity, it needs to be positively proved. Therefore this is a possible breach of article 6 of the European Convention of Human Rights, which says that person is innocent until proven guilty.
Lastly, it is often criticised that the ordinary lay jury do not understand the difficult medical and psychiatric issues involved in a plea of insanity. Instead it would be better if a panel of medical experts decided the question of insanity.
The next defence that will be critically analysed is the general defence of consent. There are several problems with the defence of control.
Firstly, we must look at the difficultly to reconcile cases of Brown and Wilson as the defence of consent was allowed in Wilson even though in brown the injuries were more serious. This proves that the courts are more prepared to condone acts between adult’s heterosexuals rather than consenting adult homosexuals. This means that the courts are imposing their moral values on the law, which is why the defence of consent can be criticised. In contrast however, the courts did allow consent in the case of Wilson despite the wife needing medical treatment.
Within cases that involve heterosexuals there are still contradiction such as Emmett and Wilson. In Emmett, the courts did not allow consent as high risk sexual activity led to the woman suffering bleeding to her eyes and burns to her breast.
One of the exceptions, which were, mentioned in the Attorney General’s Reference 6 1981 was ‘horseplay’. However there have been some issues in this area. In the case of Brown the courts did not allow room for consent despite the injuries being minor and not lasting long. In Jones however the injuries were more serious yet the defence was allowed. The argument in the case of brown was that it interferes with the freedom of adults to do what they want in private.
Lastly there is the issue of consent and the issue on euthanasia with the most important case being Pretty. Mrs pretty was suffering from motor neurone disease. Therefore she could not commit suicide herself so she applied for a declaration so her husband could do the killing however the courts rejected her application and said that her husband will be criminally liable should he proceed.
Next the reforms for insanity will be proposed.
In 1953, the royal commission on capital punishment argued in effect that the defence of insanity should be extended to those who were suffering from ‘irresistible impulse’. Therefore people like the Anders Breivik should be found to be insane.
Secondly, in 1975, the Butler Committee proposed that the verdict of not guilty by reason of insanity should be changed to a verdict of not guilty on evidence of mental disorder. Therefore this resolves the social stigma of people being called insane in society and thus being judged on by society for an unnecessary reason.
Thirdly, in 1989, the Law Commission’s draft code proposed that a defendant should not be guilty on evidence of severe mental disorder or sever mental handicap.
Lastly, the Criminal Procedure Act 1991 now gives judges’ flexibility in sentencing in insanity cases. So other than murder where the judge needs to give a hospital order, judges can for lesser crimes draw on a wide range of options for sentencing.