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History |
In 1800 James Hadfield was found to be
insane on a charge of the attempted murder of George III, he received an
outright acquittal.
Public and political reaction to this case
led in turn to the enactment of the Criminal Lunatics Act 1800
which required the courts to order anyone who had been acquitted by reason
of insanity of various serious offences to be detained until His Majesty's
pleasure be known.
The law on insanity has developed both in Common Law (rulings by the
judges) and through Acts of Parliament.
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Sometimes referred to as "insane-automatism" |
The
defendant can raise insanity as a defence when he was suffering from
mental disturbance or impairment, caused by an
internal factor at the time of the act. |
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Automatism, sometimes referred to as "non-insane-automatism" |
If the
impairment is caused by an external
factor the defence can raise automatism. |
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Before trial starts |
Insanity
may also be an issue at the beginning of the trial itself. As to fitness
to stand trial
Pinochet (1999).
Whether D is fit to plead is decided by the judge not the jury.
Before 2005 it was decided by the jury.
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When the judge finds that the defendant is unfit to plead, the jury will
decide whether the defendant did the act or made the omission, sec 22
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.
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Murder / assaults /
magistrates |
Insanity is most often thought to be pleaded in murder cases, but the
statistics show that it is more frequently used in assault cases. It
is not confined to major trials, but can be accepted in magistrates'
courts (R
(on the application of Singh) v Stratford Magistrates Court [2007] QBD,
D assaulted a police officer).
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Burden of Proof |
The
prosecution, defence or the judge can raise the issue of insanity.
The
defence have the reverse burden of proof it they raise the issue.
This onus
does not contravene the HRA or the ECHR, it is to the benefit of the
accused,
R v H [2003] HL.
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Definition |
In 1843,
Daniel M'Naghten, intending to murder Sir Robert Peel (the Prime
Minister), killed his secretary by mistake.
The court
acquitted him on grounds of insanity.
The court
formulated the so-called M'Naghten rules that have "‘become the
comprehensive definition of insanity"
Sullivan (1984).
Whole case
here
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M'Naghten rules |
Firstly, all defendants are presumed sane.
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On a
balance of probabilities,
the
defendant
must prove that at the time the offence
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He was labouring under such a defect of reason, arising from a
disease of the mind,
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That he did not to know the nature and quality of the act he was
doing, or,
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If he did know it that he did not know that what he was doing
was wrong.
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Effects of the
Criminal
Procedure (Insanity) Act 1964 and the
Trial of Lunatics Act 1883 |
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Special Verdict |
The jury
can return a special verdict of
"not guilty by reason of insanity”.
As it amounts to an acquittal, there is no right of appeal, (R v
Felstead [1914]). There is an appeal against the Hospital
Order which often follows.
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Sentencing since 31 March 2005:
D unfit to plead or not guilty by reason of insanity
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For
murder indefinite hospitalisation
Sec
24(1)(3) Domestic Violence, Crime and Victims Act 2004.
For all
other offences sentencing is prescribed by
Section 5 Criminal Procedure (Insanity) Act 1964 as amended by
Sec 24
Domestic Violence, Crime and Victims Act 2004 which sets out the
powers to deal with persons not guilty by reason of insanity or unfit to
plead.
The new sec 5 and 5A Criminal Procedure (Insanity) Act 1964 sets
out the three disposal options where a defendant is found unfit to
plead or not guilty by reason of insanity:
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Hospital Order
under sec 37 Mental Health Act 1983.
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Supervision Order.
This is described in detail in
Schedule 2 to the 2004 Act, which introduces a new section 1A to
the Criminal Procedure (Insanity) Act 1964.
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Absolute Discharge.
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Release of those sentenced to a Hospital Order |
Where the Crown Court makes a hospital order it may also make an order
restricting the discharge of the offender from hospital, if it considers
that it is necessary for the protection of the public from serious harm.
The court will have regard to the nature of the offence, the antecedents
of the offender and the risk of his committing further offences if
released.
The court can order that the offender be subject to special restrictions
either with or without limit of time.
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Release from Hospital |
A
patient may be released from Hospital by a
Mental Health Review Tribunal, an
independent panel comprising a judge, a psychiatrist and a lay person.
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Case study, Michael Abram |
Michael Abram aged 36, a schizophrenic from Merseyside, was
released 19 months after he was detained for stabbing Beatle George
Harrison, in December 1999.
He was acquitted at Oxford Crown Court of attempted murder on the grounds
of insanity, but ordered to be detained at a secure hospital "without time
restriction".
A
tribunal ruled that he had responded well to treatment and was fit to be
released into a "structured care environment". With medication he could
lead a normal life.
Abram had been released from another hospital 5 months before the attack,
he claimed doctors had failed to diagnose his illness.
Harrison's widow Olivia believed that the attack had robbed Harrison of
the vital energy he needed to maintain his health, he died from cancer.
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Powers of the Secretary of State to release
patients |
The Secretary of State has the authority under the Mental Health Act
1983 to vary a hospital order. The Act authorise him to release
patients either unconditionally or with restrictions, discharge him,
return him to prison or release him on licence, (more options are shown
below).
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Actus
reus |
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Rule 1: |
It is up
to the defendant to prove his own insanity.
The
"reverse standard" of proof.
The
standard of proof is on the balance of probabilities.
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Rule 2: Disease of the mind
Legal not medical
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Disease of
the mind is a legal not a medical question and not necessarily related to
madness in a medical sense. In practice, this is supported by
medical evidence.
Any
disease, which affects the functioning of the mind, is a disease of the
mind.
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Lord Denning in Bratty: |
“Any mental disorder which has
manifested itself in violence and is prone to recur is a disease of the
mind.”
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Lord
Lane in
Burgess: |
..no requirement that it is prone to
recur.. |
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Rule 3: The nature and quality of the act |
Kemp (1957)
The court
found the defendant not guilty by reason of insanity when he was unaware
of his actions during a "blackout" caused by a disease of the body that
affected the mind.
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Means physical nature and consequences, not moral quality, of the act |
R v Codere
(1916)
cutting
his wife’s throat thinking it was a loaf of bread.
Lord Reading CJ said that the test is whether the act is right or wrong
according to the standard accepted by reasonable men.
''He did not know what he was doing'' would apply if the accused was
unconscious or, as in an example by Lord Denning in another context, that
D thought he was throwing a log rather than the baby on the fire. The
accused would have a defence of automatism or lack of mens rea.
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Mens rea |
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Rule 4: “..did not know what he was doing was wrong” |
The only
‘rule’ going to mens rea but in reality it adds very little to the
other rules. |
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Legally not morally wrong. |
R v
Windle (1952)
‘Wrong' in this context has been interpreted to mean legally as opposed to
morally wrong.
“I suppose
they will hang me for this.”…
and they
did.
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Defect of
reason |
R v Clarke (1972)
Defect of reason does not include absentmindedness.
It means being deprived of the power to reason not just failing to use it.
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Examples of medical
conditions that have been held to give rise to "insanity" |
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Diabetes |
R v Hennessy (1989)
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If
caused by hyperglycaemia (high sugar
level caused by not taking insulin) is internal and therefore insanity.
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If
caused by hypoglycaemia (low sugar level
in the blood, caused by taking insulin – and probably not eating or
drinking alcohol) will amount to an external cause and therefore not
insanity.
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Arteriosclerosis |
R v Kemp (1957) |
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Sleepwalking |
R v Burgess (1991) |
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Epilepsy |
R v Sullivan (1984) |
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R v Rabey (1977) |
A Canadian
case; it was held that a 'disassociative state' resulting from
'... the
ordinary stresses and disappointments of life which are the common lot of
mankind ...'
did not
amount to an external cause.
It follows
that evidence of such a 'disassociative state' would indicate a disease of
the mind.
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R v T (1990) |
Evidence
of a disassociative state resulting from something qualitatively different
to the ordinary stresses of life, for example a rape attack, would
indicate an external cause. But in this case the jury still
convicted.
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R v Quick (1973) &
R v Sullivan (1984) |
A
malfunctioning of the mind is not a disease of the mind if it is caused by
some external factor such as a blow to the head or the consumption of
alcohol or drugs This may amount to non-insane automatism.
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Director of Public Prosecutions v Harper (1997) |
Insanity
is only a valid defence to an offence requiring guilty intent. Driving
with excess alcohol is not such an offence. |
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State of mind not relevant |
R v Grant (2001) provocation fell clearly within mens rea,
but it can be understood from
R v Antoine that accident, mistake and self-defence, could be
considered under s 4A even though such defences almost invariably involved
some consideration of the mental state of the defendant. |
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Anomaly |
Since
Woolmington, the onus lies on the prosecution to establish
mens rea beyond all reasonable doubt, in all cases other than insanity or
where it is laid down by statute, e.g. diminished responsibility in
murder.
In the case of insanity, anomalously, the burden is on the defence to
prove insanity on a balance of probabilities.
This has given rise to difficult and indeed somewhat absurd situations
where the issues of insanity and automatism have arisen on the same facts.
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Referring old cases |
The Criminal
Cases Review (Insanity) Act 1999 enables the Criminal Cases Review
Commission to refer to the Court of Appeal a verdict of "guilty but
insane" under the Trial of Lunatics Act 1883 and gives the Court of
Appeal powers to hear and dispose of an appeal on such a reference.
Although the verdict of "guilty but insane" was abolished in the 1960s
there may still be a small number of people who were the subject of such a
verdict and would like to have it reconsidered by the Court of Appeal.
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Information to victims |
The Domestic
Violence, Crime and Victims Act 2004 puts the onus on various parties
to inform victims when there are changes relating to mentally disordered
person including his release.
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Insanity statistics |
The latest available
statistics were published in
December 2007.
The number of hospital orders made because a defendant was found
"not guilty by reason of insanity" were:-
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1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
2001 |
2002 |
2003 |
2004 |
2005 |
2006 |
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6 |
5 |
5 |
6 |
6 |
8 |
7 |
9 |
3 |
8 |
4 |
10 |
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Disposals and discharges |
The Mental Health Act 1983 provides for:-
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the removal of a restriction order by
the Secretary of State either
conditionally or absolutely so that the hospital order continues
unrestricted (section 42(1));
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the discharge of a patient with a
restriction order, either conditionally or
absolutely, by the Secretary of State, and the termination of the
restriction order where discharge is absolute (section 42(2));
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the return to Prison Service
establishments of sentenced prisoners
(section 50(1)a);
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the release of sentenced prisoners on
licence (section 50(1)b);
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the release of sentenced prisoners on
completion of sentence (sections
50(2) & 50(4));
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the return of unsentenced prisoners to
a Prison Service establishment
to await court action where the Secretary of State or the court is
satisfied that they no longer require treatment or no effective
treatment
is available (sections 51(3) & (4) respectively);
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the transfer direction ceases to have
effect in respect of untried
prisoners at the end of their remand period, unless they are subject to
further remand or committal for trial (section 52(2));
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the direction or recommendation by a
Mental Health Review Tribunal,
of the discharge of a patient either conditionally or absolutely
(sections
72-74).
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Insanity in need for reform |
The modern applicability of the M’Naghten
Rules arose for consideration in R v Johnson [2007] CA (whole
case here).
The Court observed that they had to be
approached with some caution as they had been formulated by the judges
without the benefit of argument from counsel as the answers to a series of
questions posed by the House of Lords.
There was a conflict between the English
decision in R v Windle [1952] CA and the Australian decision
in R v Stapleton (1952) as to whether the defendant had to
know his act was legally or morally wrong.
Windle had never been doubted in England and
had to be followed but the area was one which was notorious for debate.
There was room for reconsideration of rules which had their genesis in the
early years of the nineteenth century.
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