Insanity and intoxication evaluation

The definition of IS has been said to be “medically irrelevant” as the legal definition has not changed significantly since 1843. In 1953 evidence given to the Royal Commission stated that the definition was obsolete and misleading.
A major criticism of IS as a defence is that the M’Naghten rules were created by judges in 1843, when psychiatric illness was hardly understood, and despite huge developments in understanding and diagnosing psychiatric illness the rules remain unchanged. In 1953, the Royal Commission on Capital Punishment described ‘disease of the mind’ as outdated and inaccurate.
The present L can also be criticised for being too wide, including physical illnesses such as diabetes (Hennessy), heart disease (Kemp), and sleep walkers (Burgess). Additionally, the position of diabetics is confusing as taking too much insulin is classed as A (Quick) but not taking insulin is IS (Sullivan). This means that the L makes no difference between people who are a danger to society and those who suffer from illness which can be controlled by medication.
However, it is also too narrow, as it excludes those who are clinically but legally not insane- the ‘defect of reason’ test excludes those who know what they are doing but who cannot help themselves. IS also overlaps with A. It is necessary to decide whether the D’s automatic state is due to a mental illness or due to external factors. Anyone suffering from any kind of illness which puts them in an automatic state amounts to IS. This has serious consequences as anyone who is able to use A has a complete defence and will be acquitted.
Detaining Ds who are epileptics, diabetics or sleepwalkers could be in breach of A5 of the ECHR . In Winterwerp v Netherlands, the ECHR ruled that whether someone is of unsound mind is a matter of objective medical expertise which conflicts the M'Naghten rules.
In addition, the word IS carries a social stigma as it is completely inappropriate to apply it to those suffering from diseases such as epilepsy or diabetes.
Furthermore, there is a different standard of proof depending on whether the defence or the prosecution raise the defence on IS. The prosecution must prove beyond all reasonable doubt, the defence must prove on the balance of probabilities. It conflicts the decision of Woolmington (1935) which states that the burden is on the prosecution to prove the offence not the defence. It is possible that this is in breach of A6 of the ECHR which states that the D is innocent until proven guilty.
In addition, sometimes, the decision of whether or not the D is legally insane is made by medically unqualified jurors who have to choose between expert psychiatrists.
Following the decision in Windle a D who is suffering from a serious recognised medical illness and doesn’t know that his act is morally wrong cannot have the defence of IN when he knows that his act is legally wrong. In Johnson (2007) the CA thought that the case had some merit but recognised that they were obliged to follow Windle.
For reforms of the defence of IN, The Butler Committee recommended that the verdict of not G by reason of IS should be replaced by a verdict of not G on evidence of mental disorder. This would create a presumption of no criminal responsibility where there is a proof of a severe mental disorder and also solves the issue of social stigma. This means that Ds like Quick could receive treatment or an absolute discharge, as diabetics generally pose no threat to society. They also propose that someone who knows what they were doing, but could not prevent themselves due to a mental disorder, would be allowed to use the defence. The LC in 1989 proposed that Ds should be not G on evidence of a severe mental disorder or mental handicap.
Another proposal for reform for IN was suggested by the Royal Commission on Capital Punishment in 1953 which said that the definition laid down by the M’Naghten Rules should be extended to cover those who were “incapable of preventing” themselves from committing the offence. This would mean that those acting upon irresistible impulses could use the defence of IN. However, the Government issued the defence of DR, this is illustrated by the case of Byrne. However, none of these proposals have been made L yet.
A 2nd defence which would appear to be less than satisfactory is the defence of IT. The L on IT is heavily grounded on public policy considerations. There are 2 main reasons for this: IT is a major factor in the commission of many crimes, and secondly, there is a need to balance the rights of the D and the V.
This does however mean that there are some anachronisms in the L which need to be addressed. This was recognised by the LC who said “the present rules governing the extent to which the D’s intoxicated state may be relied on to avoid liability are inadequate.”
Also, some areas of the law on IT appear to be contrary to the normal rules on MR and AR. This is seen in the decision of DPP v. Majewski (1977) where it was decided that the D is guilty of a basic intent offence because getting drunk is a ‘reckless course of conduct’, ignoring the principle that the MR and AR must coincide. The decision to drink may be several hours before the D commits the AR of the offence, like in O’Grady .
In addition, the recklessness in becoming intoxicated means that the D takes a general risk of doing something ‘stupid’ whilst drunk. Normally it has to be proved that the D knew there was a risk of a specific offence being committed but sometimes the D has no idea that he will actually commit an offence at the time of getting intoxicated. The LC considered this point in their consultation paper of 1993 and said that the Majewski rule was arbitrary and unfair. However, by the time their final report was published in 1995 they stated that the present L operated “fairly on the whole and without undue difficulty”.
The alternative approach taken in Richardson and Irwin makes the L fairer. Under this the court has to consider whether the D would have realised the relevant risk if he had not been intoxicated. The mere fact of being intoxicated does not automatically make a D guilty. The problem with this approach is that it is difficult to know what a particular D would have done if sober. In this case the CA pointed out that the Ds were not reasonable men, but university students.
Where a D is charged with murder or a S18 OAPA 1861 he can use IT as a defence. However, he can still be found guilty of a linked basic intent offence. Although, for other crimes there is no ‘lesser’ offence so if IT is pleaded successfully for theft the D will be not guilty of any offence.
Where the D is IV intoxicated they can still be found guilty if they were capable of forming the necessary MR as shown in Kingston (1994). This ignores the fact that the D was not to blame for the IT. The LC have however chosen to retain this rule merely clarifying the instances which would count as IV IT.
It would appear therefore that the LC in their recommendations are merely codifying and clarifying the existing L rather than attempting to rewrite the defence of IT. Whilst this may make the L easier to apply it does not deal with many of the points raised above, and raises the question whether these reforms will actually improve the use of the defence.
In conclusion …