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Is The Current Law Defense Of Insanity Ineffective?

2143 words - 9 pages

In this project, I will consider whether the current law defence of insanity is ineffective, out-dated and in need of reform. I will do so by considering few criticisms of the insanity defence under the M’Naghten rules by academics like Peter Blood and others, as well as by reviewing possible law reform in the Insanity and automatism Scoping paper.
My main aim is to uncover particular parts of the law which urgently need a reform such as sleepwalking, diabetes and the distinction between external and internal factors, by comparism of the contrasting leading cases. I would also like to point out to the legal definition of insanity and to the out-dated M’Naghten rules (test). ...view middle of the document...

This means that the insanity defence is weak and in need of reform.
According to Smith and Hogan, Criminal Law, 1992, p207, the M'Naghten Rules have been subjected to criticism mainly by doctors, but also by lawyers. The Rules are based on old psychological views and they are concerned only with defects of reason and take no account of emotional or volitional factors. The language is old and very difficult to understand and interpret.
On January 20, 1843 Daniel M’Naghten tried to kill Sir Rober Peel, but shot his secretary instead, while suffering from morbid delusions. The court established that he was suffering from disease of the mind and he did not know his action.
The House of Lords indicated that:
D must prove that he was suffering from a ‘defect of reason‘ (Clarke 1972) caused by a ‘disease of the mind’ (Kemp 1957, Bratty 1963, Sullivan 1984) and that D must not know what he was doing or that it was wrong (Windle 1952,Johnson 2007).

Academic As Ashworth notes
Lord Diplock explained the ‘disease of the mind‘ in the case of Sullivan: Is not clear that the word ‘wrong‘ interpreted to mean morally or legally wrong. Lord Devlin stated: There is an issue of whether the D knew that his action was morally wrong. In Sutcliffe , D suffered from schizophrenia, but he had a knowledge that his actions were against the law and therefore was held not to be insane. This shows that this is not a satisfactory test for criminal responsibility and surely not in the public interest.
Today, the rules set out in this case face many criticisms. Some academics have argued that even if the D meet the legal definition of insanity and do not meet the medical criteria for insanity, is sentenced to medical care anyway. Another criticism is that the rules are not able to distinguish if the D is dangerous for the public or not or if the D is suffering from temporary or permanent mental condition. Additionally, some academics have argued that this rule makes it too easy for a D with a severe mental disorder to avoid criminal responsibility for any crimes committed.
Dr Winstanley challenged this defence in the House of Commons debate in 1967: And Lord Bramwell said that
This is contrary to the Mental Health Act 2003, because the concept of ‘disease of the mind‘ is not compatible with the definition of the ‘mental disorder‘ under the MHA 2003. MHA 2003 is trying to mitigate treatment of mental disorder, while the aim of defence of insanity is to excuse mentally ill people from criminal liability.
In R v Kemp (1957) , D hit his wife with a hammer while suffering from arteriosclerosis. The court established that hardening of the arteries was a temporary or a permanent defect of the mind and was therefore a ‘disease of the mind‘ and also that it does not distinguish between diseases of the mind and body so it prevents the phrase ‘defect of reason.‘
Devlin J held:
In this case was established that the law...

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