Objective Notes: W201 – Individual & State
UNIT 27– MANUAL THREE
DEFENCES (2)
1
Insanity
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Where successful, special verdict = not guilty by reason of insanity (NGI)
but not acquittal necessarily as society requires protection & courts
empowered to sentence def in various ways;
M’Naghten Ruleso Developed mid-19th century following M’s acquittal for murder on
grounds of insanity but formulated not by stat or at common law but
from Lords’ debates in response to questions put to judges;
o Rules prescribe presumption of sanity & for success def must show on
balance of probabilities defect of reason caused from disease of mind
resulting in him either not knowing nature/ quality of conduct or that it
was wrong.
Disease of the mind - R v Kemp [1957] –
o Mind = mental faculties of reason, memory & understanding;
o Unnecessary to show that brain itself was affected, provided mind was,
irrespective of whether disease was physical or mental & irrelevant
whether mental condition curable, temporary or permanent –
temporary insanity suffices;
o Defect of reason must come from disease of mind & not from other
causes (e.g. upbringing).
Disease of mind = legal not medical term – includes mental illness but wider
& disease may be physical as well as mental provided it affects mind.
R v Sullivan [1984] – where impairment caused by external physical factors
(e.g. blow to head or vol intox) not disease of the mind;
Diabetes cases –
o R v Hennessy [1989]: def suffered from hyperglycaemia from
forgetting to take insulin = disease of mind causing defect of reason,
did not know nature/ quality of act so was NGI.
o R v Quick [1973]: def suffered from hypoglycaemia, had taken insulin
but had not eaten = conduct resulted from external factor – the
injection - , not a disease of mind but NIA.
Defect of reason - R v Clarke [1972] – defect of reason meant def being
deprived of power to reason but did not include those who through absentmindedness/ confusion failed to fully use powers of reason.
Nature/ quality of act - def did not know what he was doing through disease
of mind, not conscious of acts or insane delusions where def thinks he is
doing something non-harmful but is actually committing offence, he knows
neither what he is doing or consequences – he is NGI but where knows what
is doing, not entitled to a NGI verdict, irrespective of condition.
Not knowing act was wrong - R v Windle [1952] – test not whether action
was morally right or wrong but whether was contrary to law, def had to
believe conduct not legally wrong & where he knew it was could not rely on
belief it was not morally wrong;
NGI does not apply where def aware conduct was not correct & it was
contrary to law.
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Objective Notes: W201 – Individual & State
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Where def does not believe conduct wrong, for successful NGI has to show
belief ordinary people would not consider act wrong & did not know it was
contrary to law.
Inability to control urges: M’Naghten rules do not apply where def knows
what he is doing is wrong, that ordinary people consider it wrong, knows it is
contrary to law but cannot stop himself from so acting.
Non-insane automatism (NIA)
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NIA= no A R where actions invol, state of unconsciousness or unwilled;
Bratty v A-G N Ireland [1963]: act invol where act of muscles without
control by mind – spasm, reflex action, convulsion; or done by person not
conscious of what he’s doing;
Where invol acts result from external factors (e.g. blow to head) = NIA but
where from internal factors, they are NGI;
Acts not invol for NIA= where def doesn’t remember at tine/ afterwards,
where def can’t control impulses, unintentional/ results not foreseen,
drunkenness or from disease of mind;
Def must be blameless -Brome v Perkins [1986] - if actions purely
automatic he could have relied on NIA but could not where some acts over
journey were vol & should have stopped driving when felt attack coming on.
Distinguishing insanity, NIA, dim resp & vol intox
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Summary of defences –
o Insanity: disease of mind from mental/ physical illness from internal
factors resulting in defect of reason - not knowing nature/ quality of act
or that it’s wrong.
o Dim resp: abnormality of mind from arrested/ retarded development,
inherent cause or injury resulting in substantial impairment of mental
resp.
o NIA = invol act from external factor & def blameless;
o Vol intox – only defence where crime is of specific intent & def did
not form M R required;
Example scenario = def heavy long time drinker, alcohol dependent, unable
to resist urge to hit victim who suffers serious injury & def charged under
s.18 OAPA (GBH with intent).
o Insanity: drunkenness not = disease of mind unless dependency found
to be disease such as alcoholism, inability to control urge may = defect
of reason under R v Clarke (def deprived totally of reasoning power)
but if def knows nature/ quality of act & no facts show didn’t know it
was wrong ,irresistible urges not covered by these tests.
o NIA: not applicable where def blameworthy (e.g. vol drinking) & facts
don’t show actions to be invol.
o Dim resp – only available where defence is murder;
o Vol intox: S.18 = crime of specific intent & defence available where
def could show did not form such M R but if pros shows intended
crime by urge to do it, would be liab under s.20 - crime of basic intent defence not applicable.
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Objective Notes: W201 – Individual & State
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AS GENERAL RULE WHERE ELEMENTS = INSANITY, THIS
OVERRIDES ANY OTHER DEFENCE.
Infancy
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Children under 10 have no crim liab, irrespective of conduct &, whilst LA
may instigate care proceedings where such ‘defs’ offend persistently, this
isn’t crim sanction & at common law children 10-14 only liab where child
knew what he did was seriously wrong - C v DPP [1995] evidence, including
views of teachers, psychiatrists & those who knew def well, must go beyond
actual conduct so burden on pros of showing mischievous discretion (= def
knew conduct was seriously wrong & not just naughty/ mischievous);
To rebut presumption of doli incapax (= incapable of offending ) courts had
to look at what def did/ said at time/ after act , determine state of mind &
whether he appreciated seriousness of conduct;
But S.34 C & D Act, 1998 abolished rebuttable presumption of doli incapax
for children aged over 10.
Evaluation re crim liab of children 10-14
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Govt felt presumption archaic – advent of compulsory education means
wrong to assume 10-14 year olds don’t know right from wrong but against
this –
o No guarantee that comp ed = ability to so distinguish;
o When doctrine developed, most children sent out to work very young,
arguably more grown up than sheltered school life & many such
children are truants/ excluded so don’t receive ed benefits;
o Moral development multi-based & varies – doctrine allowed for this &
prevented unjustified crim labelling, safeguard abolition removes;
At time presumption developed, crim law harsh, children could suffer death
penalty which longer applies, emphasis of sentencing now more on
prevention re-offending/ rehab & children should realise must be sanctions
for crim conduct but against this –
o Presumption much wider than preventing death penalty being incurred
&, if convicted, wide punishment powers available;
o Labelling children criminals hard to justify & evidence shows reconviction rates remain high, most will establish appropriate moral
attitude if kept out of crim justice system which presumption assisted
to do - abolishing interferes with that process.
Presumption illogical - rebutting required pros to show that def knew what
he did was seriously wrong & was achieved by showing def was of normal
mental development for age whereas presumption = such children didn’t
know right from wrong but against this –
o There was illogicalness but prime reason was to provide safeguard
which only appropriate evidence could remove – whether child knew
between right/ wrong - illogicalness in the practice, not principle,
Presumption unfair – often no rebutting evidence existed but against this
frequency of convictions not support lack of evidence, it may have been
burden not discharged because child was just insufficiently culpable & even
if culpable children went unpunished this does not justify total abolition.
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Objective Notes: W201 – Individual & State
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Arguable that better course might have been to reverse presumption – where
A R & M R found, presumption = child knew what he did was seriously
wrong; & thus law presumes child to have crim resp but where def could
prove was not thus aware would have defence, particularly for the extremely
immature child for whom crim sanction not best way forward.
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