Defences

Insanity

Lesson Objectives

• I will be able to explain the meaning of the defence of insanity

• I will be able to distinguish between insanity and diminished responsibility

• I will be able to explain cases that illustrate the defence of insanity

• I will be able to apply the rules to a given situtaion

IntroInsanity as a defence is relevant only at the time the offence was committed. Insanity after that is only of relevance if the defendant stands trial or not. The defendant must prove that, on the balance of probabilities, he was insane at the time of the offence.

If the prosecution wish to raise the issue of the defendant’s insanity, they must prove that beyond reasonable doubt.

This is because everyone is presumed to be sane.

If the defence is found to exist, the defendant is found ‘not guilty’ but a special verdict of ‘not guilty by reason of insanity’ is given. Under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 the court has a range of options available.

For the offence of murder, the court must make a hospital order restricting the defendant's discharge indefinitely. For any other offence, the court may make one of the following orders:

• A hospital order and an order restricting discharge either for a limited or unlimited period of time

• A guardianship order• A supervision and treatment order• An order for absolute discharge

• The rules on insanity come from M’Naghten1.Everyone is to be presumed to be sane2.However, insanity may be proved if, at the time

of committing the act D was ‘labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong’

The definition

The issues

The element needed for the defence to succeed are:

• Defect of reason• Caused by the disease of the mind• So that the defendant does not know the

nature and quality of his act or as no to know that what he was doing was wrong

Insanity

Elements (1)Defect of reason

The defendant must show that he or she was suffering from a defect of reason; in other words, that his or her ability to reason was impaired. This is because the basis of the defence is the defendant’s deprivation of the power of reasoning.

Thus, a defendant who still possessed those powers but failed to use them cannot be classed as insane. – Clarke (1972)

Elements (2)Disease of the mindIn this context, ‘disease of the mind’ is a legal term and not a medical term. This has caused problems at times, since the legal definition does not always match the medical definition. This is apparent when looking at the types of conditions that the courts have accepted as constituting a disease of the mind. Following M’Naghten, delusional states are covered by this, but the inclusion of certain other conditions, such as arteriosclerosis, epilepsy and diabetes, has caused controversy.

•The disease of the mind must be a physical disease and not brought on by external factors such as drugs•It can be permanent or temporary•Kemp (1957•Bratty (1963)•Sullivan (1984)

Insanity

Elements (3)Did not know the nature and quality of the act or that the act was wrongThe defect of reason caused by a disease of the mind must mean either that the defendant does not know the nature and quality of his or her act or, if he or she does, he or she does not know that the act is legally wrong. In terms of the ‘nature and quality of the act’, the defendant would be unaware of his or her actions. An example that is often given is of a defendant who thinks that he or she is cutting a loaf of bread but who is in actual fact cutting the victim’s throat.If the defendant is aware of what he or she is doing, it is still possible to rely on the defence if he or she does not know that what he or she is doing is legally wrong.

The expression ‘nature and quality’ merely refers to the physical quality of the act. This means that the defendant proves any of the following:

• That he did not know what he was doing• That he did not appreciate the consequences of his act• That he did not appreciate the circumstances in which he was acting

In these situations he lacks mens rea but because this is a result of his insanity, the special verdict is given rather than being acquitted.

The idea that he did not know that what he was doing was wrong means that he had the mens rea for the offence but because of his insanity he did not know it was wrong.

This does not distinguish between legal and moral ‘wrongness’. It seems that a common sense approach will prevail – the issue is rarely raised – Windle (1952)

Conclusion

• Page 44 then activity

The main elements

• Look up the case of Clarke and give the facts

• What did the Court of Appeal decide about the rules of insanity?

Defect of reason

• Disease of the mind is a legal concept, not a medical one

• There are many cases on the issue • The courts have made a distinction between

internal factors and external factors• The first will be insanity• The second automatism• The best way to see the difference is to look at

some cases

Disease of the mind

• Kemp: D had a narrowing of the arteries which reduced the flow of blood to the brain. This caused lapses of consciousness. During one of these he attacked his wife with a hammer. His defence was treated as insanity

• Sullivan: D hit out at someone during an epileptic fit and was convicted of ABH. The House of Lords confirmed that the appropriate defence would be insanity and that epilepsy was a ‘disease of the mind’

Cases on insanity

• Hennessey: D was a diabetic who failed to take his insulin. He argued automatism. The court held it was insanity on the basis that the cause was the disease of diabetes itself

• Look up the case of Quick. What is the difference between them?

Comparison

• So in Hennessy the cause of the defect of reason was the diabetes itself – a disease

• In Quick the cause was the failure to eat after taking insulin. It was the insulin which caused the defect of reason - an external factor

• In Burgess sleepwalking is said to be within insanity as there was no external cause

• Do you think this is appropriate?

Internal v external

• The first part looks at whether D recognises what is actually happening

• If D does recognise the nature of the act the second part comes in

• This a question of whether D knows it is legally wrong, not whether D believes it is morally wrong

• Look at the case of Windle• In what 2007 case was it followed?

Not knowing the nature and quality of the act, or not knowing it was wrong

• Should a sleepwalker be classed as insane?• A diabetic?• Can you think of a reason it is right to do so?

Problems

• Changing medical knowledge

• The stigma of an insanity

• The burden of proof

Other problemsCan you add to these

Summary

Extras

Insanity

Evaluation (1)The burden of proof rests with the defendant

Critics have argued that it is unfair that the burden is on the defendant to prove, on the balance of probabilities, that he or she was suffering from insanity. They say that this undermines the notion that the defendant is innocent until proven guilty by the prosecution.

Insanity

Evaluation (2)The use of a legal rather than a medical definition

Perhaps the major flaw in this defence is that the courts use a legal definition of insanity rather than a medical one. In addition, the legal definition dates from 1843 and fails to take account of the huge medical advances that have occurred since then.

Insanity

Evaluation (3)The rules are too broad

The classification of diabetics, epileptics and sleepwalkers as insane has been criticised for suggesting that those suffering from such conditions are a danger to the public, whereas this is far from the truth in the vast majority of cases. Most people with such conditions are able to control them by taking medication.

Insanity

Evaluation (4)The rules are too narrowThe defence can rule out those who are medically insane if they know the nature and quality of their act or that it is legally wrong but are nonetheless unable to stop themselves from committing it. Thus, those at whom the defence should be aimed are unable to rely on it.

Insanity

Reform (1)Place the burden of proof on the prosecution

The Butler Committee and the Criminal Law Revision Committee have suggested that, since it is part of mens rea, the burden of proof should be reversed and placed on the prosecution rather than the defendant.

Insanity

Reform (2)A new defenceCritics argue that the only way forward is to abolish the M’Naghten rules altogether. Instead, a new defence should be introduced. The Butler Committee suggested that this should apply to defendants with a mental disorder and should result in a verdict of ‘not guilty on evidence of a mental disorder’. This would avoid the defendant being labelled insane. Others suggest that there is no need for such a defence at all and that those suffering from insanity should be dealt with outside the criminal justice system.