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Defences
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Lecture notes on defences to non-fatal offences and murder
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Week 17 – Defences 1: Insanity and AutomatismPre-recorded lecture 1 - Insanity
Insanity affects the cognitive capacity of a person
The M’Naghten Rules (1843)
- ‘The accused 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’
- A defect of reason
- Caused by disease of the mind
- D did either not know the nature and quality of his act or
- Did not know that his act was wrong
Insanity is not the only concept dealing with the mental state of an offender
- Automatism is strongly interwoven with the insanity defence
- Also diminished responsibility
- Medical issues of this category can also give rise to a court order to hospital treatment under
sections 35, 36, 37 and 38 of the Mental Health Act 1983 (mod 2007)
Insanity applies to all crimes – will be either a denial of offence or a defence to a crime – both
requirements are the same for either one
Procedural issues
- Burden of proof (BOP)
o Where D raises the defence of insanity, BOP is on D to prove it on the balance of
probabilities
o P must prove the elements of the offence or lack of a defence to higher standard –
beyond reasonable doubt
- Where insanity is proven, P does not need to prove MR: Trial of Lunatics Act 1883 2 (1); AG
reference (no.3 of 1998) [1999] All ER 40, CA
Consequences of a finding of insanity
- ‘Special verdict’: - not guilty by reason of insanity – Lunatics Act 1883
- With the criminal procedure Act 1991 – the judge had number of disposal options available
o Hospital order, with or without a restriction order
o A supervision and treatment order
o An order of absolute discharge
- A defence that is rarely used
o Some defendants prefer automatism rather than insanity even though insanity
should apply (case of Sullivan)
- Defendants still prefer prison to a hospital order as these can have no end
- Public protection concerns – is insanity a way out?
Requirements to insanity
M’Naghten 1843 – shot Edward Drummond, thinking he was PM because of persecution –
successfully pleaded insanity and spent rest of his life in a hospital
, M’Naughten rules
- Everyone is presumed sane, but this is rebuttable
- Proof of insanity requires
o A defect of reason
o Which was caused by a disease of the mind
o And the defect of reason caused D to either
Not know what the nature and quality of his act (normally acts to a denial of
offence as no MR) or
Not know his act was wrong (defence as there is still an MR present, so
would amount to a defence rather than a denial of offending)
A defect of reason
- a deprivation of the power to reason; not failure to use power, more than mere stupidity,
absentmindedness, confusion, or mistake
Case of Clarke (1972) – no defect of reason by which ‘she was unable to know the nature of the act
she was doing’ – in this case the person had depression and shoplifted – maybe a disease of the
mind but there was no defect of reason
Case of Kopsch (1927) – inability to control one’s emotions or compulsions is not lack of power to
reason
Law com discussion paper 2013 – this may be too narrow an approach
Disease of the mind
- Not a medical concept, a legal one
- Internal causes only – main difference with non-insane automatism
Case of Kemp (1957)
- Establishes that disease of the mind is a legal concept, concerned with the mind, not the
condition of the brain itself, does not matter whether incurable or not, or permanent or not
or transitory or not
Case of Sullivan
- ‘Any mental disorder which has manifested itself in violence and is prone to recur is a
disease of the mind’
Concept of the ‘mind’
- Internal disorder affecting ‘the mental faculties of memory, reason and understanding
(Sullivan)
- ‘Irrelevant is the label sued by medical experts when describing the condition’ (Kemp)
Case of Rabey (1980)
- Canadian case, rejection by girlfriend causing dissociative state = not an external cause
- ‘The common stresses and disappointments of life which are common lot of mankind does
not constitute an external cause’
Case of T (1990)
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