Capacity defences of insanity and intoxication

• Defence


  A legal argument or justification presented by D in response to criminal charges brought against them
• Defences


  • Used to counter the prosecution's case and can result in D being acquitted or found not guilty
• The defence of insanity is a general defence which is available to all crimes
• The defence of insanity is not used as much since the abolition of the death penalty and the introduction of the defence of diminished responsibility
• Insanity is relevant at three points


  1. Insanity before trial

  2. Unfit to plead

  3. Insanity at the time of the offence
• Unfit to plead


  The question of unfitness to plead may be raised by the defence, prosecution or the judge. It is decided if D is unable to do the following: a) Understand the charges b) Decided whether to plead guilty or not c) Challenge jurors d) Instruct solicitors and counsel e) Follow the course of the proceedings f) Give evidence in their own defence
• Insanity at the time of the offence

  The question of insanity at the time of the offence is determined by application of the M'Naghten rules
• The defence of insanity developed following the case of M'Naughten


  1843
• M'Naughten rule


  The defendant should be presumed sane unless, at the time of the offence, they can prove they were: labouring under such a defect of reason caused by a disease of the mind that they did not know either the nature and quality of the act or, if they did know it, that they didn't know what they were doing was wrong
• The courts have stated that there needs to be a complete absence of the power to reason
• Absentmindedness or confusion is not sufficient
• Disease of the mind

  A legal term and not a medical one. Medical conditions such as schizophrenia are covered but so are many other conditions that would not be defined as being diseases of the mind in any medical sense. The key is that it must be caused by an internal factor
• Conditions covered as a disease of the mind

  • Schizophrenia
  • Many other conditions that would not be defined as being diseases of the mind in any medical sense
• Voluntary intoxication cannot be used as a defence of insanity
• Voluntary intoxication - case example:

  • R v Harris (2013)
• Not knowing the nature and quality of the act


  There are two ways in which the defendant would not know the physical character of the act: 1) they are in a state of unconsciousness or impaired consciousness; or 2) they are conscious but do not understand or know what they are doing, due to their mental condition
• Not knowing the nature and quality of the act - case example:

  • Kemp (1956)
• Not knowing the act was legally wrong


  D must prove they did not know what they were doing was legally wrong. If D knows the nature and quality of the act and that it is legally wrong, they cannot use the defence of insanity
• Cases illustrating knowing the act was legally wrong

  • R v Johnson (2007)
• Voluntary intoxication


  When a person intentionally consumes alcohol, drugs or other substances, leading to intoxication
• Verdict if insanity is successfully proven

  Not guilty by reason of insanity
• Involuntary intoxication


  When a person consumes alcohol, drugs or other substances without their knowledge or intent, leading to intoxication
• Crimes of basic intent

  Offences where recklessness is sufficient for the required mens rea
• Sentencing options if insanity is successfully proven

  • Hospital order without time limit (mandatory for murder)
  • Hospital order with time limit
  • Guardianship order
  • Supervision and treatment order
  • Absolute discharge
• Crimes of specific intent


  Offences where a specific intention is required for the mens rea
• How courts deal with offences involving drunken mistake

  1. Depends on whether the mistake was due to voluntary or involuntary intoxication, and whether the offence is one of basic or specific intent

  2. If voluntarily intoxicated, no defence for basic intent crimes as recklessness is sufficient

  3. If voluntarily intoxicated, may be able to negate mens rea for specific intent crimes if intoxication was severe enough

  4. If involuntarily intoxicated, may have a defence for both basic and specific intent crimes
• Problems with the law on intoxication

  • Majewski decision that voluntary intoxication is reckless conduct does not align with the principle that actus reus and mens rea must coincide
  • Where there is a lesser offence, the charge may be reduced, but where there is no lesser offence the defendant may escape liability entirely
• The Law Commission has made various proposals to reform the law on intoxication, but these have not been implemented
• The definition of insanity is legal not medical. Insanity is not recognised as a medical condition
• D's suffering with physical diseases like diabetes, or even those who sleepwalk can be considered insane
• D has to prove insanity which may breach their human rights
• M'Naghten Rules


  Legal test for insanity
• Prior to 1991, the only punishment was a hospital order, which was not appropriate for those who had conditions such as diabetes and epilepsy
• Criminal Procedure (Insanity and Unfitness to Plead) Act 1991


  Introduced new orders available to extend the options available to a judge
• Orders a judge can now impose

  • Hospital order without time limit (mandatory for murder)
  • Hospital order with time limit
  • Guardianship order
  • Supervision and treatment order
  • Absolute discharge
• Definition of insanity is legal not medical. Insanity is not recognised as a medical condition
• D has to prove insanity which may breach their human right - innocent until proven guilty
• There is a stigma to being labelled insane, yet it is the only defence available to many D's
• It is the jury's job to decide whether D is insane, and they are not really qualified for this
• Suggested reforms that never became law

  • Royal Commission on Capital Punishment 1953 - suggested those with irresistible impulses would have been covered
  • Butler Committee 1975 - suggested it should be replaced by verdict of 'not guilty on evidence of mental disorder'
  • The Draft Criminal Code 1989 - suggested D should be not guilty on evidence of severe mental disorder or handicap