What are the strengths and weaknesses of the present defence of Insanity?
Uploaded by Haf on Nov 26, 2002
It has been well-established feature of the English legal system that rules of criminal law are addressed to rational and responsible persons who have the capacity to control their actions and understand and comply with rules. Persons lacking such capacity should not be held criminally culpable even if some wrong may have been done, as it is believed that they are “sick rather than evil.” It is from this central concept that the defences of Insanity and, to some extent, Diminished Responsibility derive. Whilst the latter was more recently established by the Homicide Act in 1957, Insanity is stems from an 1843 common law authority and has perpetually been at the centre of controversy. Although in principle it plays an important role in both protecting interests of mentally disordered by providing means for their treatment and protecting public interests in subjecting such dangerous persons to restraint, the lack of clarity over its precise scope accentuated by its antiquity has led to absurd decisions which undermine its credibility. The extent to which diminished responsibility alleviates its inherent deficiencies and provides a better guide to kinds of mental disorders that should exempt persons from criminal liability is however questionable. The main difficulty for both lies in determining a dividing line between sanity and responsibility on one hand and insanity and irresponsibility on the other.
The question of insanity may arise at the time of the trial if there are concerns that the defendant is unable to appreciate the significance of the trial and is thus ‘unfit to plead.’ Whilst prior to 1991, such an individual would be incarcerated in a mental institution without proof that the crime had been committed, the Criminal Procedure (Unfitness to Plead) Act holds that if a there is a finding of ‘unfitness’ the defendant may only be incarcerated after the definitional elements of the crime have been proved before a jury. This has strengthened the law and brought it more in line with human right requirements.
More significantly, where the defendant is considered fit to plead there is the vital question of the defendant’s state of mind at the time of the alleged offence. The rules that provide guidance in determining this issue were laid down in M’Naughton 1843 in which the House of Lords delineated the circumstances in which the accused cannot be held legally culpable for his conduct. Rules state that a person is presumed sane...