Criticisms and Reforms – General Defences

The current law regarding general defences is extremely unsatisfactory. There are numerous problems with both the definitions of the defences and their operations. The first defence I am going to discuss is insanity then followed by consent. * The definition of insanity is said to be “medically irrelevant” as the definition has not advanced since 1843, even though the Royal Commission on Capital Punishment received evidence from doctors that the definition regarding insanity was “obsolete and misleading” it is also particularly obscure as the rules do not distinguish between defendants who pose a danger to the public (the main purpose for the defence) and those who do not. Many would be shocked to see epilepsy and diabetes fall under insanity alongside with dangerous mental disorders.
Lord Bramwell stated “the present lays down such a definition of madness that nobody is hardly ever mad enough to be within it.” The Law Commission recommended for diminished responsibility that a reform should be made and that the definition should be modernised to take into account advances in medicine and psychiatry. They proposed the term ‘recognised medical conditions’ should be used as it is more flexible and allows room for medical developments. I believe that both of these reforms for diminished responsibility should be used and also applied for insanity. I believe it will help improve the current law as it will be much more flexible allowing room for medical improvements however I don’t believe conditions such as diabetes should fall under the defence of insanity as they are not a big enough danger to the public as it can be fully controlled via medication. * Another criticism of insanity is that the defence is ineffective and could result in human rights challenges. If you argue insanity at court and are successful you could get an indefinite period of detention in a secure mental hospital. Because of this, defendants prefer not to raise the defence at court and instead would prefer to get a murder sentence which could be a minimum of 15 years. This suggests the defence is not protecting those who it initially sought to protect therefore it is ineffective. Article 5 of the European Convention on Human Rights states that ‘a person of unsound mind may only be detained where proper account of objective medical expertise has been taken’ as insanity sometimes fails to be mentioned at the trial this could result in human rights challenges. A recent example of this is the Yorkshire Ripper, Peter Sutcliffe, saying that his mental disorder was not taken into account at the time of his conviction. However the court dismissed this, stating it was ‘an accumulation of criminality at the extreme end of horror.’ I believe this decision was correct as the number of women he murdered was ridiculous (a total of 13 women) showing that he was a huge danger to society. I believe serial killers who have killed a mass number of people should not be allowed the defence of insanity as they would know the nature and quality of their act and they would also know that it is legally wrong.

* Another criticism is the disagreement regarding what the defence should actually test. There has been a disagreement about whether the fact that ‘D’ has a ‘disease of the mind’ should be the only defence or whether it should also test whether ‘D was so “mad” that they were unable to understand what they had done or know that it was wrong.’
It was stated in the Insanity and Automatism Discussion paper that ‘if a person could not understand that they ought not to do what they were doing, then that person should not be held criminally responsible.’ Alongside this, the Butler Committee on Mentally Abnormal Defendants recommended that medical proof of severe mental disorder should be sufficient to negate criminal responsibility. I believe both of these to be correct, I think that if there is enough medical proof to show that a person did not know what they were doing then they cannot be held criminally responsible. I also agree with the criticisms of the Draft Criminal Code, it has been criticised because it assumes a lack of criminal responsibility just because of the existence of a ‘disease of the mind’ rather than considering how it affected the defendant. I believe a reform should be made so that a disease of the mind does not automatically rule out criminal liability but it has to affect the defendant a considerable amount to result in them committing the crime in question. * The final criticism for insanity is confusing the burden of proof. There is a different standard of proof depending on whether the defence or the prosecution raise the issue of insanity. This is likely to confuse the jury. This also conflicts with the principle in Woolmington v DPP where it says that the burden of proof is always on the prosecution. In most other cases the defendant has to only raise the issue and the prosecution disapprove of it. This should be the same for insanity as it places defendants at an unfair advantage and may breach the Human Rights Act.
In the Insanity and Automatism Discussion papers it says ‘that it is inappropriate to place the burden of proving the elements of the insanity defence on the accused. This means it would be for the accused to produce evidence from two expert witnesses relating to the elements of the defence and for the prosecution to just disapprove it.

* Consent will be the second general defence I will be looking at. The first criticism is that you cannot consent to death. Euthanasia is defined as ‘the bringing about of a gentle and easy death in the case of incurable and painful disease with the consent of the victim.’ It is said that we should have control over decisions that affect our life including when to end it, which is a huge issue in consent.