Evaluation of 2 Criminal Defences (proposals for 1) Insanity/Intoxication

Introduction – Paragraph 1 Define general defences and compare with specific defences (with examples) Define full defences and compare with partial defences (with examples) Tell the examiner which 2 defences you are going to evaluate and which of the 2 you will put forward proposals for reform

Comparison between insanity and DR – Para 2 State law of insanity (M’Naghten rules) Show overlap with DR (include 3 part test – show similarities/differences Pose the question – what is the point of insanity?

Loss of control and/or consciousness Overview AUTOMATISM INSANITY Common Law M’Naghten Rules Internal Causes External Causes Loss of control and/or consciousness

Paragraph 3: Law v Medicine M’Naghten rules subject to intense criticism – not least from the medical profession. Legal definition based on out-dated psychology from 1840’s!! Currently there is huge disparity between the legal definition and that laid down by the medics. Could a diabetic ever be termed insane in medicine? - Legal insanity reluctant to embrace developments in psychology Attempts made to make defence more attractive – CPA 1991

Paragraph 4: Vol Intoxication State the law – Majewski – takes all the criticism. What if the specific intent crime has no ‘fall back’ offence built within it – i.e. Theft?? Law of intoxication seeks to protect the public – does it achieve that?

Options for court: Key change: Criminal Procedure Act 1991 The court now given a range of options Murder – court must make a hospital order restricting D’s discharge indefinitely Any other offence the following rules apply: hospital order restricting discharge for a limited or unlimited time guardianship order supervision and treatment order absolute discharge order

M’Naghten (1843) All ER 229 D attempted to assassinate the then Prime Minister, Sir Robert Peel. D missed but killed Peel’s secretary, Edward Drummond. Medical opinion suggested he was mentally ill and this resulted in the House of Lords setting out rules for use in such cases. Principle – If the accused was conscious that the act was one which he ought not to do, and if the act was at the same time contrary to law, he is punishable. In all cases of this kind the jurors ought to be told that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction: and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong.

Paragraph 5: Reforms Butler Committee 1975 – key suggestion to facilitate the use of expert medical evidence Criminal Procedure Act 1991 – attempts to make the defence more ‘popular’ Clarkson and Keating – Butler reforms central if the current stigma surrounding insanity is to be removed

Insanity – M’Naghten 3 key elements: DEFECT OF REASON DISEASE OF THE MIND So that the defendant does not know THE NATURE AND QUALITY OF HIS ACT THAT THE ACT WAS WRONG

1. Defect of Reason In R v Clarke (1972) a forgetful lady went through a supermarket check-out without paying for some goods. She pleaded insanity. Her state of absent-mindedness was not a defect of reason. Other emotional disorders also fall outside the test, such as irresistible urges or lacking will power. Defect of reason must be total, not temporary states or moments of lapses.

R v Clarke [1972] 1 All ER 219 The defendant was charged with theft after putting groceries in her bag. She claimed she acted absent-mindedly whilst suffering from depression. The trial judge ruled that this amounted to a defect of reason and raised insanity. Principle - It was held that ‘defect of reason’ required inability to exercise reason rather than a failure to do so at a time which the exercise of reason was possible. The defendant in this case failed to exercise powers of reason but was not incapable of reasoning thus was not within the scope of insanity. Not Guilty – but no defence of insanity

2. Disease of the Mind Legal term not a medical one. It is the crucial part of the test and is often the one upon which the case turns, especially in terms of whether the defence is one of insanity rather than automatism. Must be physical disease not one caused by external facts (compare diabetic states – see later slide) In SULLIVAN Lord Diplock defined ‘mind’ in the ordinary sense of ‘the mental faculties of reason, memory and understanding’. In R v KEMP [1956] arteriosclerosis (hardening of the arteries) causing temporary loss of consciousness was a disease of the mind for these purposes, even though it was of physical rather than mental origin Hence, diseases of the mind have come to include conditions that are not mental disorders, such as diabetes, epilepsy and even sleep walking (Bratty was deemed legally mad!)

R v Kemp [1957] 3 All ER 249 D an elderly man suffered with arteriosclerosis which affected the flow of blood to this brain. This sometimes caused temporary unconsciousness and during one episode he attacked his wife with hammer and killed her.   Principle – The Court decided this was a case of insanity rather than automatism and more importantly established the fact that a disease of the mind could be temporary and the actual medication of the brain was not, in itself, relevant. Devlin J stated “In my judgement the condition of the brain is irrelevant and so is the question whether the condition of the mind is culpable or inculpable, trabnsitory or permanent.’ Guilty but insane (the old special verdict)

Bratty v AG for NI [1963] 3 All ER 523 D suffered a psychomotor epileptic seizure during which he strangled his girlfriend. (This illness means that it is possible to carry out purposeful acts whilst in an unconscious state). D was driving his van with his girlfriend in the passenger seat. He took off her tights and strangled her with them.   Principle – Approving the statement set out in Kemp (1957) Lord Denning added that any mental disorder which was demonstrated by violence that was prone to occur, was a disease of the mind. This should be seen as an additional pointer rather than a limiting factor on what amounts to a disease of the mind. Lord Denning was anxious to protect the public from people who suffered in this way. The court said that this type of seizure could amount to insanity and gave the court the opportunity to distinguish insanity from automatism. Guilty

R v Sullivan (1984) 2 All ER 673 D kicked an injured his friendly elderly neighbour during a minor epileptic fit. Principle – The fact that this was only temporary did not preclude it from being a defence of insanity. It would not be a defence of automatism as that required an external factor. This, and other decisions regarding epileptic fits, demonstrates very clearly that the legal definition of insanity is very different from the medical definition. Guilty (as he pleaded automatism) Comment: On his conviction, a probation order, with medical supervision, represented an altogether more advantageous outcome than the order which the court would have been obliged to make if the defence of insanity had been established

Diabetes and Insanity If diabetics fail to take insulin or to eat, drink too much or get over-tired: hypoglycaemia - deficiency in blood sugar levels - too much insulin for blood sugar levels to cope with hyperglycaemia - deficiency of insulin and excess of blood sugar levels Sufferer can become violent and incapable of control

Diabetes and Insanity Consider Quick (1973): diabetic, took insulin but drank and didn’t eat. Assaulted patient in his care pleaded guilty when judge ruled that this was defence of insanity Court of Appeal quashed conviction: a malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs…., alcohol and hypnotic influences cannot fairly be said to be due to disease (Lawton)

R v Quick (1973) 3 WLR 26 The appellant was a charge nurse in a hospital. He attacked one of his patients whilst on duty. The patient was a paraplegic and suffered a fractured nose, black eyes and bruising. The appellant was charged with assault occasioning ABH under s.47 OAPA 1861. The appellant sought to raise the defence of automatism as at the time of the attack he was hypoglycaemic, in that he had taken too much insulin and eaten very little on the day in question. In addition he had consumed alcohol before the attack. The trial judge ruled that this gave rise not to automatism but insanity. The defendant then changed his plea to guilty and appealed. Principle – The appeal was allowed and the conviction was quashed. His hypoglycaemia was caused not by his diabetes but by the external factor of insulin. Not Guilty

Diabetes and Insanity Emphasis on ‘external factors’ reinforced in Sullivan (1991), Hennessy (1989) and Bingham (1991). Hyperglycaemia = forgets to take insulin= high blood sugar levels = arises from diabetes itself = classed as insanity (even though only temporary) Hypoglycaemia = takes too much insulin = reduce blood sugar levels = caused by outside source = automatism

R v Hennessy (1989) 3 WLR 26 The defendant was charged with taking a motor car without authority and driving while disqualified. He claimed that he was suffering from hyper-glycaemia (high blood sugar level caused by diabetes) at the time because he had not taken any insulin to stabilise his metabolism, nor eaten properly for days, and as a result was acting unconsciously. He pleaded automatism but the trial judge indicated that he would only be prepared to direct the jury on the defence of insanity. Principle – The Court of Appeal, in confirming the correctness of the trial judge's ruling, held that the defendant's loss of awareness had not resulted from the operation of external factors upon his body, such as the injection of insulin (as in R v Quick [1973]), but instead had resulted from an inherent physical defect, ie diabetes. The hyper-glycaemia suffered by diabetics, which was not corrected by insulin, was to be regarded as a disease of the body which affected the mind for the purposes of the M'Naghten Rules.

Activity Why is this distinction upheld? (why do we have a difference between the two forms?). What are the public policy reasons? Is this right or wrong? The courts make such a distinction between conditions caused by an outside source like a blow to the head causing concussion or the wrongful use of medication and disease of the mind because in the former case the condition can easily be treated or avoided and is unlikely to recur. Where disease of the mind are involved which might well recur at a later time the protection of the public is felt to be of paramount importance and the court needs to be able to make orders for suitable treatment and/or detention.

Activity In your groups see if you can identify three problems with the law on insanity from the cases and discussions we have already looked at. How would you suggest we deal with any of these problems.

Nature and Quality of Act ‘Nature and quality’ means physical quality of the act: That he did not now what he was doing That he did not appreciate the consequences of his act That he did not appreciate the circumstances in which he was acting This situations above means he lacks mens rea and as they are sufficient for insanity will get special verdict In this instance he has the mens rea but because of his insanity he did not know it was wrong. He did not know what he was doing was wrong

Nature and Quality of Act Requires extreme level of functional impairment excludes psychopaths - Sutcliffe (Yorkshire Ripper) ‘The mere fact that a man thinks he is John the Baptist does not entitle him to shoot his mother’ (Hewart LCJ)

Not knowing it was wrong Alternative to not knowing the nature of act But D must believe it is not legally wrong, not simply that it was morally wrong Windle (1952)

R v Windle (1952) 2 All ER 1 D killed his insane wife who was always threatening suicide. He killed her with 100 aspirin.  He said “I suppose they will hang me for this?” indicating he knew it was legally wrong, whereas he thought it was morally right. Principle – Knowledge that an act is ‘wrong’ means legally not morally wrong. Killing terminally ill spouse may be morally justified but is criminal offence. Claimed he had communicative insanity.   Guilty (sentence of death upheld) Comment: Diminished responsibility could now be argued in such cases. The ratio in Windle has been doubted in R v Dean Johnson (2007) EWCA Crim 1978.  The High Court of Australia in R v Stapleton (1952) 86 CLR 358 refused to follow Windle.

Evaluation and Reform The burden of proof rests with the defendant (E) The use of a legal rather than a medical definition (E) The rules are too broad (E) The rules are too narrow (E) Place the burden of proof on the prosecution (R) A new defence (R)

Plenary Consider to what extent insanity should exist as a defence. Write a 1 paragraph submission to defend or argue against the proposition It is also worth looking at how intoxication may affect other general defences.   Firstly intoxication cannot be used in insanity. However, alcoholic abuse can lead to alcoholism which can be a disease of the mind. When intoxication produces insanity as defined in the M’Naughten Rules then it is these rules that apply. As far as automatism is concerned it cannot be used if the intoxication was recklessly self induced as discussed in R v Lipman previously. IN relation to self defence and intoxication if the drunken mistake is about self defence or prevention of a crime, D will never have a defence this is detailed in R v Hatton 2005 and R v O’Grady 1987. In R v O’Grady the Defendant and a friend got drunk and fell asleep. The defendant awoke and thought that his friend was attacking him and he had to counter attack in self defence by hitting his friend with an ashtray. D went back to sleep and awoke the next morning to find his friend dead. The House of Lords held that mistake could not be allowed because it was due to voluntary intoxication. The court had to balance the interests of the defence and the law in general. D was found guilty of manslaughter This rules applies for both basic and specific intent crimes and the principle that a mistaken belief caused through D’s involuntary intoxication cannot use the defence of self-defence is now statutory and can be found in the S.75 Criminal Justice and Immigration Act 2008.

Objectives Identify the law on the general defence of insanity Apply the law on insanity to a number of problem scenarios Evaluate the law on insanity with regard to its effectiveness and fairness