shazv
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#1
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Hey! I'm doing some criminal evidence work and I would like something cleared up, it may seem obvious but its really confusing me haha.

If the prosecution was to raise the defense of insanity on the defendant, would the prosecution have the legal burden of proving it (by beyond all reasonable doubt), or would there still be a reverse legal burden for defendant to prove it (on a balance of probabilities) even though the prosecution raised it?

Not sure if i worded that well. I hope you can help, thank you!
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I don't understand the circumstances in which the prosecution would raise the defence of insanity. Even if they did, bizarrely, do so, why would that change the burden of proof?
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Notoriety
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(Original post by Forum User)
I don't understand the circumstances in which the prosecution would raise the defence of insanity. Even if they did, bizarrely, do so, why would that change the burden of proof?
I think they mean the defence team.

I suspect the question is do the people raising the defence of insanity have to prove it absolutely or do they have to prove it prima facie and then it is for the prosecution to disprove.
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RV3112
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(Original post by shazv)
Hey! I'm doing some criminal evidence work and I would like something cleared up, it may seem obvious but its really confusing me haha.

If the prosecution was to raise the defense of insanity on the defendant, would the prosecution have the legal burden of proving it (by beyond all reasonable doubt), or would there still be a reverse legal burden for defendant to prove it (on a balance of probabilities) even though the prosecution raised it?

Not sure if i worded that well. I hope you can help, thank you!
In limited circumstances the prosecution can raise the insanity defence, for instance when the defendant raises diminished responsibility as a defence. In this situation, the legal burden rests on the prosecution to prove to a standard of beyond reasonable doubt.
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(Original post by RV3112)
In limited circumstances the prosecution can raise the insanity defence, for instance when the defendant raises diminished responsibility as a defence. In this situation, the legal burden rests on the prosecution to prove to a standard of beyond reasonable doubt.
Still don't think I've understood. If the defence raises the partial defence of diminished responsibility, why would the prosecution wish to raise insanity (a complete defence)? I cannot see anything in Blackstone about this or anything that suggests the burden of proof would be different even if it did, exceptionally, happen.

The only case my limited researches have turned up where this happened was a case from Australia, R v Ayoub, which seems to turn on entirely different statutes and rules governing defences than we have in England & Wales (although it's difficult to tell because the decision isn't on Austlii or Westlaw, or at least I can't find it on my phone).
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RV3112
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(Original post by Forum User)
Still don't think I've understood. If the defence raises the partial defence of diminished responsibility, why would the prosecution wish to raise insanity (a complete defence)? I cannot see anything in Blackstone about this or anything that suggests the burden of proof would be different even if it did, exceptionally, happen.

The only case my limited researches have turned up where this happened was a case from Australia, R v Ayoub, which seems to turn on entirely different statutes and rules governing defences than we have in England & Wales (although it's difficult to tell because the decision isn't on Austlii or Westlaw, or at least I can't find it on my phone).
The right of the prosecution to raise an issue of insanity in response to a defence contention of diminished responsibility is on a statutory footing. It's in the Criminal Procedure (Insanity) Act 1964, s.6. In other circumstances, the right of the prosecution to introduce evidence of insanity is contained in the HOL judgment of Bratty v Attorney General for Northern Ireland.

For the burden of proof, the authority is a little known case called R. v. Grant, [1960] Crim. L.R. 424. The judgment text is hard to find. However, amongst other writers, Archbold covers this issue in "Criminal Pleading Evidence and Practice 2019 Ed", section 19-95. The book is on Westlaw, i think. If you have access, Loughnan's book "Manifest Madness" (at page 162) also provides a good summary of the law in this area.

I don't know of any recent judgments that cover this issue, but essentially the rule in Bratty allows the prosecution to argue insanity if the defendant raises another defence that puts his mental state at issue, for example automatism. The defendant's defence might lead to an acquittal or perhaps in the case of diminished responsibility, a shorter prison sentence. Because of the facts of the case, the prosecution may be of the view that it is preferrable that the defendant is subject to the special verdict of insanity rather than a short prison sentence or unqualified acquittal. This then allows for involuntary detention of the defendant until his mental condition is such that he is no longer a danger to himself or others.
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(Original post by RV3112)
..
That's extremely interesting, thank you.
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shazv
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#8
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Thank you guys, I didnt really word my original question well. Thankfully I found stuff out in my ttextbook which cleared things up, but thank you very much for that in depth reply! im extremely grateful
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