Capacity

Age of criminal responsibility = 10 years

Doli incapax --> incapable of knowing what was wrong

• assumption that children aged 10-14 didn't know what was right or wrong so prosecution had to prove that they did
• abolished by Crime and Disorder Act 1998, s34
• R v JTB (2009) confirmed that Act got rid of doli incapax role completely

In E&W a child over 10 can be tried and convicted as an adult

• too harsh?
• age higher in other European nations

D's mental capabilities at time of trial

More of a procedural rule --> question asked if D has sufficient mental capacity to participate in a trial

As of 2004, question for judge

Where found unfit, D removed from court room --> still a question of if D did act --> even if D doesn't have capacity to stand trial, there is a trial of fact (by jury)

If D found guilty, judge has discretion as to consequences for D --> often some form of medical supervision

About 100 successful pleas per year

Law Commission 2010 proposed that test should be changed --> shouldn't ask if D understands what's going on, but whether D can communicate with lawyers and give instructions on how they want trial to be conducted --> D's decision making capacity at trial

This would widen scope of plea

D's mental capabilities at the time of the offence

Special verdict --> prosecution has proved all relevant aspects but still not guilty by reason of insanity

M'Naghten Rules -->

• 1843 case lays down rule for insanity
• law's understanding of insanity is narrower than psychiatric understanding
• D must be:
  • suffering from a DEFECT OF REASON
  • caused by a DISEASE OF THE MIND
  • which either
    • caused to to be UNAWARE OF THE NATURE AND QUALITY OF HIS ACT
    • caused D NOT TO KNOW THAT HIS ACT WAS WRONG

Defence of reason caused by a disease of the mind

• 'impairment of mental functioning caused by a medical condition'
• cognitive, not volitional
• not concerned with other emotinal disorders that affect D's ability to control himself

Disease of the mind

• any disease which affects themind
• does not have to be a psychiatric condition
• most common diagnosis is schizophrenia
• has included epilepsy and sleepwalking
  • Sullivan (1984) --> attacks man during epileptic fit 
  • Burgess (1991) --> D wounds friend while sleepwalking: attacks her with bottle and video recorder, grabs her neck

Defect of reason caused by disease of the mind which causes D:

• not to know the nature and quality of the act
  • profound delusions
• not to know that the act was wrong
  • legally wrong
  • confirmed in Johnson (2008)
  • difference in practice? ('benign conspiracy' between doctors and judges in order to allow defence of insanity)

Burden of proof = on D --> presumed sane until proved otherwise

DIsposal after special verdit

• before 1991 --> judge had to order D's indefinite detention in secure mental facility until doctor thought D should be let out --> many D preferred to be found guilty of minor crimes instead of pleading insanity
• after 1991 --> judge has discretion on consequences --> hospital order, supervision order, absolute discharge --> 50% non-custodial today
• uncommon defence --> averag 15 a year 1991-2001

Insanity = under pleaded --> legacy of pre-1991 rules

• stigma
• negative --> not catching the right people
• unfair that D who is insane would prefer to serve prison sentence?

Reform suggestions

• Law Commission Scoping Paper 2012
  • difficulties in theory with insanity defence
  • difficulties in practice with insanity defence?
• Law Commission Discussion Paper 2013
  • too wide (sleepwalkers)
  • too narrow (excludes volitional disorders)
  • potentially in breach of ECHR --> art 6 - burden of proof
• LC suggestion = abolish insanity defence and replace it with new defence based on lack of capacity --> 'not criminally responsible by reason of a recognised medical condition

Partial defence to murder (reduces to manslaughter)

Homicide Act 1957, s2(1), amended 2009

• recognised medical condition
• must explain D's actions (causal factor)
• must impair
  • understanding
  • rationality
  • self-control
• less flexible? --> mercy killings

Dowds (2012) 

• acute intoxication as recognised medical condition --> but NOT for law
• law has different concerns to science
• re-introduces conflict law v medicine?

Concern that law will be inflexible and amek difficult cases more difficult to decide --> rejected by saying that legislations hould be introduced in order to give jurisdiction over these cases

D who acts like an automaton = no criminal responsibility

• A-G Ref 2/92 --> 'the defence of automatism requires a total destruction of voluntray control on D's part. Impaired, reduced or partial control is not enough'

Sane automatism

• external cause
• driving D and attack of bees
• Quick (1973) --> hypoglycemia --> insane as external cause

Insane automatism

• internal cause
• Burgess & Sullivan
• Hennessy (1989) --> hyperglycemia --> diabetes as internal cause

Prior fault --> D should not be allwed to take advantage of a condition if it arose through D's prior fault

Bailey (1983) --> self-induced automatism --> took insulin and did not eat enough

Test of foresight: did D foresee the risk of becoming 'aggressive, unpredictable and uncontrolled'?

Statistical link between intoxication and crime

Law's approach focuses on link between intoxication and mens rea

Specific intent offences --> intoxication as evidence of lack of MR

• it is not a defence

Basic intent --> intoxifaction is irrelevant

• intoxication as recklessness

Policy considerations

• don't want intoxication to apply to all crimes
• don't want intoxicaitont ob e a way for D to escape all criminal responsibility
• allow intoxication to have some relevance but hen limits it as a matter of policy 

Key cases

• Majewski (1977); Heard (2007); Coley (2013); Hardie (1984); Kingston (1995); Dietschmann (2002)

Reforming intoxication

• Law Commission 1993
  • abolish Majewski
  • introduce new offence of criminal intoxication
    • drunkenness is the wrongdoing
    • fair labelling
• Law Commission 2009
  • stay with Majewski
    • but clarify terminology
      • no more specific/basic intent 

D who lack capacity totally or partially

• legal consequences
• R v Coley (overview insanity, automatism, intoxication & their interaction)

Tension in law

• law and medicine (insanity, DR)
  • cognitive and volitional abilities (insanity, DR)
• logic and policy (insanity, intoxication)
  • social protection adn fair labelling (insanity)
  • policy and fair labelling (intoxication)
• law and morality
  • Kingston (intoxication)