Defences reform
question
JAN 2011 write a critical analysis of any 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 defences.
JAN 2013 critically evaluate any two general defences
(insanity, automatism, intoxication, consent, self-defence/prevention of
crime). Suggest what reforms may be desirable to one of the defences that you have evaluated.
JUN 2014 critically evaluate any two general defences
(insanity, automatism, intoxication, consent, self-defence/prevention of
crime). Suggest what
reforms may be desirable to one of the defences that you have
evaluated.
2014 Paper Insanity: the legal/medical notions of mental
incapacity; relationship with diminished responsibility; limited nature
of defect of reason; nature of disease of mind, including internal/external distinction and associated
anomalies; uncertainty in scope and extent of required consequences (nature
and quality/wrong); procedural aspects, including burden and standard of proof.
Intoxication: lack of clear rationale (defence or
aggravation of offence); distinction between voluntary and involuntary intoxication; where
voluntary intoxication, the specific
intent/basic intent as crucial element in the approach; uncertainty in
definition of specific intent; relationship with other defences (eg
self-defence).
Insanity reforms - the reforms of insanity the
re-definition of the defence of insanity to achieve closer alignment with
medical notions; removal of the insane/non-insane automatism anomalies in the
redefinition of insanity;
Introduction: Criticisms remain with the law on Insanity and intoxication.
However the law commission discussion paper labelled “Criminal Liability: insanity and automatism [2013]” sets out the
criticisms with insanity and additionally suggests some reforms that may be
considered desirable. As well as this, the Butler Committee 1975 which informed the Draft
Criminal Code 1989 also proposed some desirable reforms to improving
the law on insanity.
Issue 1 Insanity, deriving from a bygone era of the M’naughten rules (1843) requires D to
prove he had a defect of reason , arising from a disease of the mind (a fumbled
and outdated legal term) that caused him thereupon to not know the nature and
quality of his act, or that it was legally wrong.
The first
criticism with the law on insanity is that the label insanity itself is
stigmatising. According to the 2012
scoping paper by the law commission, “Insanity and Automatism”, people
who should rely on the defence do not and in its place, prefer to “plead
guilty in order to avoid stigma” para 2.87. Moreover, this same
scoping paper proposed that there are only around 30 pleas of insanity a year in the
crown courts, yet a large proportion of prisoners still have mental health
problems. It seems wholly unfair to prevent people deservedly using the defence
because of the stigma that the defence drags along with it, and it even in a
sense prevents justice for those truly suffering.
Additionally,
the special verdict of “not guilty by reason of insanity” further helps to
perpetuate this stigmatism, and seems insulting particularly when looking where
it derives from in the law (The trial of Lunatics act 1883). It also seems
unfair that in English law, a defendant has to prove this. Article 6 of the European convention on Human Rights states that a defendant is innocent
until proven guilty so prima facie this could be seen as a breach.
Possible good crit: The
special verdict does at least acknowledge that someone suffering from mental
illness is not blameworthy or “guilty” because of it.
Reform of issue 1: To tackle the issue of the law being stigmatising and
inaccurate, it was proposed in the Draft Criminal Code of 1989 that the
term “insanity” should be replaced with “mental disorder”. Also, another
proposed reform was that there should be new defence without an insulting
verdict (in the IA 2012 paper): ‘Not criminally responsible by reason of
recognised medical condition’. This
eradicates the word “insanity” and perhaps creates less of a stigmatising
effect, should the defendant plead this successfully. It also proposes a new special verdict that
is not insulting and outdated like the one deriving from the trial of lunatic
that could perhaps prevent people seriously suffering from having to plead
guilty. Additionally The burden of proof would now lie with the party
raising the issue on balance of probability.
Issue 2: A second criticism of the law on insanity is that it is in need of modernisation. The rules governing the
defence of insanity today are much the same as those that governed it following
M’Naghten’s case in 1843.An old law isn’t necessarily a bad law however;
if a law endures it is often based on sound principles. However the problem
here is that medicine and psychiatry
have moved on much, since then. To possibly a lesser extent, so has the public’s perception of mental illness. The IA 2012
states that terms like ‘insanity’ and ‘disease of the mind’ are not medical
terms, but “outdated legal terms" and that the practical consequences of
this test is that it is so out of step
with modern medicine that it may “impede proper diagnoses and expert evidence of insanity’’. Its
archaic language from a bygone era indicates that justice in some cases may not
be served.
Reform 1: A suggest reform for the issue above is that the Draft
Criminal Code of 1989 suggested that the term
“insanity” should be replaced with “mental disorder” once again. This could
eradicate the terms that are outdated and not medical. This could potentially
prevent juries from being confused as to what should amount to a defendant
being classified as insane, and thus it calls a more rigid and correct
diagnosis. All in all, one could even suggest that a new act could be drawn up
which eradicates the un-modern anomalies.
Issue 3: A third criticism of the
law on insanity is that if the issue of
automatism is raised, the question has to be asked whether this was insane or non-insane automatism. This boils down to whether the cause of the
automatism was external, e.g. a drug (R v Hardie) or internal, e.g.
sleepwalking (R v Burgess). The distinction is hugely important in terms
of the outcome; freedom if external, possible detention for life if internal.
The IA 2012 states that the internal/external test has been demonstrated to
create “arbitrary distinctions “ leading to unfairness and decisions which are
hard to reconcile. This anomaly can lead to two people with the same condition being treated profoundly differently,
depending simply on whether they took their medication. R v Quick,
R v Hennessy. Fear of this can also induce the prosecution to push for a not guilty verdict and the defendant to plead guilty, further
perpetuating injustice in terms of the defence.
Reform 3: One proposed reform that could help the above
issue according to Criminal
Liability: insanity and automatism [2013] is that clearer distinctions between the two could be made.
Firstly the accused would not be held
criminally responsible only where he lacked the capacity to conform to the law and had a recognised medical
condition which caused a total lack of capacity to reason, understand
wrongfulness or an inability to control his physical actions. The main difference between
the insanity and automatism would be that for insanity, incapacity must arise
from a qualifying recognised medical condition.
This prevents conditions like diabetes resulting in unfair and bogus
sentences.
Possible good crit: The internal/external distinction that causes such a
contradictory outcome in R v Quick and R v Hennessey is borne of
practical necessity. An external factor
can be removed and the defendant is no longer a risk to society. Even today’s medicine cannot prevent some
internal factors operating.
Intoxication
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Introduction
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There also
remains an issue with the law on intoxication. Intoxication can be a defence
where the defendant’s intoxication for a specific intent crime (voluntary or
involuntary) has negated their men’s rea completely, R v Kingston (voluntary
and specific crimes only account for a
reduction of the conviction).
Where
involuntary intoxication is concerned, the defendant is allowed an acquittal R
v Hardie, and where the defendant is voluntarily intoxicated for a basic
intent crime, the defence fails DPP v Majewski
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Issue 1 –
prior fault
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Issue 1 The first criticism with the law on intoxication
is that in regard to basic intent crimes and voluntary intoxication, it fails to acknowledge the concept of “prior fault” (as described in Smith &
Hogan) which undermines the supposed subjective nature of recklessness.
R v
Cunningham tells us that a defendant is reckless if he foresaw a risk of the actual consequence and proceeded
anyway. However at the time of getting intoxicated the defendant has no idea
that he will actually commit an offence.
Majewski may been
able to foresee a disturbance or two but could he have foreseen “assaulting a police officer” ?
Additionally, R v Richardson & Irwin
indirectly suggests we should consider what
the defendants might have foreseen had they been sober . In this respect,
this issue of recklessness seems rather restricted and unfair.
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Issue 2 -
contemporainety
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Issue 2
Secondly, the law on intoxication has issues with the concept of
contemporainety which states that the mens rea and actus reus must coincide
at some point.
If you consider a defendant
like Majewski, it could be argued that his recklessness in getting so
intoxicated happened as much as a day before the actus reus of his
crimes. It would be stretching the
single transaction or continuing act principles a very long way to apply them
in such circumstances
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Issue
3- Involuntary intoxication
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Finally,
in relation to involuntary intoxication and where the defendants inhibitions
are broken down by being made intoxicated, the law seems a little unfair.
Depsite Kingston by his
own admission knowing what he was doing because he said the drugs weakened
his self-control, the injustice remains that his
partial intoxication was nevertheless involuntary and ignores the fact D
was not to blame for the intoxication Without the actions of another, the
crime would not have happened.
The Court
of Appeal had felt he should have been acquitted as, without the drugs, he
would never have formed the intent. This is unfair.
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