1. Revision of Defences

2. What is A Defence? Arguing a complete defence successfully will mean that the D is acquitted of the charge.The defendant’s liability is extinguished. What Are the Defences? Insanity Automatism Intoxication Duress Necessity

3. Insanity D must be labouring under such a defect of reason, from the disease of the mind, as to know the nature and quality of the cat he was doing, or if he did know it, that he did not know he was doing what was wrong’ The Rules covering this defence come from the case of M’Naughten (1843) Burden of Proof is on the Defence and it is on the balance of probabilities. For the Defence to be successful the following must be established; Defect of reason Which must be the result of a disease of the mind This must cause the D not to know the nature and quality of the act or not to know he was doing wrong.

4. Defect of Reason The D powers of reasoning must be impaired, not just absent mindedness or confusion. This was decided in CLARKE (1972) D was charged with theft D claimed that she lacked the mens rea as she had no recollection of putting them in her bag, and she did not eat mincemeat which was one of the items she had in her possession. D claimed her absent mindedness was caused by diabetes and depression. The original trial judge ruled this was insanity and she pleaded guilty but then appealed The Court of Appeal quashed the conviction as her she had not been deprived of her powers of reasoning by a disease of the mind.

5. Disease of the Mind This is a legal definition rather than a medical one. It can physical or mental. KEMP (1956) D suffered from hardening of the arteries which caused him to suffer temporary loss of consciousness. During one such episode he attacked his wife with a hammer. He was charged with a GBH under sec 20 OAPA 1861 He was found not guilty by reason of insanity he appealed as he stated the problem was physical not mental. The conviction was upheld- the law was concerned with the mind and his ordinary mental faculties had been affected and therefore his case was covered by the rules of insanity.

6. Sullivan (1984) In this case the HoL was asked to consider whether epilepsy came within the rules of insanity. D kicked and injured a man during a minor epileptic fit. The trial judge ruled that he was prepared to direct the jury on the defence of insanity, but not that of automatism. The House of Lords held that epilepsy was a disease of the mind because the defendant's mental faculties were impaired to the extent of causing a defect of reason. It was irrelevant that this was an organic disease which was only intermittent. It would also be irrelevant if it were only temporary. Therefore the disease itself can be on any part of the body, provided it has an effect on the mind.

7. Hennessy (1989) High blood sugar levels caused by diabetes were classes as insanity because of the effect that it had on the mind. D was diabetic, he failed o take his insulin for 3 days and was seen getting into a stolen car and driving off. D wanted to use non insane automatism as a defence however the judge rules that he was actually putting forward a defence of insanity. D pleaded guilty rather than have a ‘not guilty by reason of insanity’ D then appealed on the basis that he should have been able to put forward his defence. The Co A Held that the correct defence was insanity as the diabetes affected his mind.

8. Burgess (1991) D had been watching video’s with his girlfriend. They fell asleep and he attacked her. D smashed a bottle and a video recorder down on her head. There was no evidence of an external cause for his behaviour Therefore the defence of automatism was not permitted. A doctor gave evidence that a sleep disorder, ie an internal factor caused the attack. D was found not guilty by reason of insanity and this was upheld at the C of A.

9. External Factors If the reason that the D does not know what he is doing is an external one rather than an internal disease then this is not classed as insanity. QUICK (1973) D was a diabetic who had taken insulin but not eaten enough. This caused his blood sugar level to fall This affected his brain and he assaulted a patient at the psychiatric hospital he worked in as a nurse. It was decided that as the state had been caused by the insulin which caused his blood sugar to fall, the defence of automatism was available and he was entitled to be acquitted.

10. Comparing the Cases Therefore we must be very careful when looking at cases where diabetes is a factor. If the state of mind of the D is affected by the disease itself causing high blood sugar, hyperglycaemia then insanity is the correct defence. If the state of mind is caused by the insulin, leading to low blood sugar which is not addressed by the D by eating then the defence of automatism is available.

11. Not Knowing the Nature and Quality of the Act There are two ways in which the D an argue that he did not know the nature and quality of the act. Being in a state of unconsciousness or impaired consciousness. Being conscious but due to his mental condition not knowing or understanding what he is doing If D can show that either of the above scenarios apply to him at the time of the act then his case is covered by the M’Naghten rules.

12. Windle (1952) The D, even if suffering from a mental illness must still show that he did not know that what he was doing was wrong In Windle the D gave his suicidal wife 100 aspirin. D was suffering from a mental illness at the time. However when he gave himself up to the police he said ‘I suppose they will hang me for this’ He therefore knew what he was doing was wrong, he could not use insanity as a defence and was found guilty of murder. This case was prior to 1957 and therefore the special defence of diminished responsibility was not available

13. Johnson (2007 This case confirmed Windle (1952) D was a paranoid schizophrenic and suffered from hallucinations. He forced his way into his neighbours flat and stabbed him. He was charged with wounding with intent, Sec 20 OAPA 1861 Psychiatrists who gave evidence agreed that he knew that what he had done was legally wrong even if he didn’t think it was morally wrong. The defence of insanity was not available to him. The court in this case referred to an Australian case which refused to follow Windle. The case was described by the Judges in Johnson as containing illuminating passages however they were obliged to follow Windle.

14. Special Verdicts If a D successfully argues insanity then the jury must return a verdict of ‘ not guilty by reason of insanity’ Until 1991 this meant that the D would automatically go to a psychiatric hospital regardless of the cause or the offence committed. This was obviously not suitable if D was suffering from epilepsy, diabetes or hardening of the arteries. This lead to reform; Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 was passed

15. Reform Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 was passed. This meant that the judge can impose A hospital order, with or without restrictions as to when the D may be released. A supervision order An absolute discharge However, if the D is charged with murder then the judge must impose an indefinite hospital order which would require the Home Secretary to give consent for their release.

16. Problems With the Law of Insanity M’Naghten definition of insanity set in 1843. Knowledge of mental disorders was limited then, a more modern definition should be used now. The only reform that has happened is the wider range of options open to a judge after a verdict of insanity. The fact that insanity is a legal definition and not a medical one causes problems why? Those suffering from irresistible impulses. They know what they are doing and that it is wrong but they cannot stop themselves R v G and J (2008) and R v Byrne (1960) despite being medically insane the H of L ruled that they were not legally insane

17. On the other hand, People who have physical diseases such as diabetes and epilepsy and who are not classed as medically insane can be classed as legally insane and potentially held in a psychiatric hospital. One justification is that there is an internal cause for their actions and therefore it could be treated.

18. There is an overlap with automatism. The defence of non insane automatism is no longer available to epileptics and diabetics as their illness affects their mind. This has a serious consequence as a successful defence of automatism would lead to acquittal a finding of not guilty by reason of insanity requires an order. The argument in favour of this is even if the person has committed the offence because of a condition such as epilepsy, there is a risk they could offend again and the insanity finding can ensure their supervision in the future whereas automatism would not. Johnson 2007 – Australian case

19. Insanity carries a social stigma. Should it be applied to those with diabetes and epilepsy. Article 6 of the ECHR states that a D is innocent until proven guilty. The reversal of burden of proof it could be argued, breaches this. Should juries, with no medical knowledge be asked to decide on insanity cases. In the case of Peter Sutcliff the jury were so revolted by his crimes even though there was evidence that he was suffering from paranoid schizophrenia they found him guilty.

20. Overlap with Diminished Responsibility Since 1957 D’s charged with murder can plead diminished responsibility. This reduces the charge of murder to manslaughter. It covers a wider range of mental illness than insanity. This is a more effective defence to murder than insanity and is the more widely used defence, even though use of both defences have reduced over the last 20 years.

21. Proposal For Reform There have been several proposals. None of these have been implemented. 1953- The royal Commission on Capital Punishment suggested the M’Naughten Rules be extended to those suffering from irresistible compulsions. This was not implemented however diminished responsibility was introduced to cover these cases in the case of murder alone. 1975- The Butler Commission suggested d that the wording should be changed to ‘not guilty on evidence of mental disorder- avoiding the label of insane 1989- The Law Commission proposed that D should not be guilty on evidence of severe mental disorder or severe mental handicap. Go to the CPS website for the most up-t-date position