“The for an expansion of the defence to those

“The defence of
insanity is in urgent need of reform so as to be applicable to all those who
are unable to conform their behaviour to the requirements of the law, whether
by reason of mental illness or the ingestion of substances.” Discuss.

The defence of insanity is currently not fit for purpose.
Certainly, the general unavailability of the defence to those who are unable to
conform their behaviour to the requirements of the law by reason of mental
illness is ineffective on a practical level and morally unjust, unfairly
labelling as insane those who do not deserve such stigma. However, the defence
should not cover all who are unable to control their actions. It is hard to see
the need for an expansion of the defence to those whose actions are a
consequence of the ingestion of substances. This is already covered by the law
of intoxication and it would be inappropriate for it to come under the defence
of insanity.

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The implication of the first suggestion is that the insanity
defence should be opened up to those who, because of mental illness, were
incapable of controlling the urge to carry out an act, despite knowing that
their conduct was against the law. This introduction of a volitional limb would
be a positive development. The M’Naghten Rules, rooted as they are in the
language and thought of when they were formed, are based on too limited a
concept of the nature of mental disorder.1
This is particularly the case with the now obsolete belief in the pre-eminent
role of reason in controlling social behaviour.2
That proof of insanity requires proof of a “defect of reason” is wrong. Firstly,
under Clarke, defect of reason has
been interpreted to mean that for the defence of insanity to operate, the
capacity to think rationally must be completely absent. A mere failure to use
powers of reasoning is not enough.3
Momentary failure of concentration, even where caused by mental illness, is not
insanity within the M’Naghten Rules. This itself is not a rational nor fair
approach to take. Whether momentary or not, if, from the accused’s perspective,
there has been some defect in the accused’s mental capacity more generally,
then the defence should be granted. On a factual level, reason does not
necessarily have anything to do with conduct.

The Law Commission report from 2013
also made clear that the “defect of reason” rule excludes from the scope of the
insanity defence abnormalities of mind such as an inability to control one’s
emotions or compulsions.4
That is, it refers only to mental disorders which affect the cognitive faculties.
Ashworth has rightly criticised this narrow conception of the defence: “some
forms of mental disorder impair practical reasoning and the power of control
over actions”.5 It
is a completely arbitrary distinction. This has been recognised in the defence
of diminished responsibility where cases of “irresistible impulse” are now
included. The “defect of reason” clause is flawed and should be changed to
cover mental disorders that impact upon other mental faculties.

As the Law Commission has recommended, there should be a new
“capacity to control” limb of the defence. This would be relevant when a
recognised medical condition gave rise to the complete inability of the accused
to control their actions at the time of the alleged offence. The question that
should be under consideration by juries is whether it is possible for the
accused to make a choice. A person with no possibility of making any choice –
whose action is in that sense “automatic” – does not have the capacity to
control his or her actions. For example, a person who suffers from Tourette’s
Syndrome might have no control over sudden movements of his head. If his head moves
and makes contact with the other man’s face, causing injury the person may
plead that he was not criminally responsible by reason of recognised medical
condition because he wholly lacked the ability to prevent that tic at that

People almost always
understand the nature and quality of the act – The “nature and quality of
the act”34 This nature and quality limb of the defence may be thought too
narrow in two ways. First, it is based on an unduly narrow concept of what must
be known. The courts have held that the insanity defence is unavailable if the
defendant has knowledge of the physical aspects of the act alleged even if he
or she does not have knowledge of the moral aspects of his or her act. 35 It is
clear that in this (physical) sense it will be very rare indeed for a person
with a relevant medical or physical condition not to know the nature and
quality of his or her actions. Secondly, an exclusive focus on cognitive
questions excludes other sorts of problems in the functioning of minds and
brains, such as mood disorders or emotional problems.

The arguments for including in the defence an element
reflecting the lack of capacity to control one’s actions

and the fact that the defence is excluded when mental states
and behaviour that would otherwise meet the preconditions of the defence are
induced by the ingestion of substances (as eg in Coney).


1 M’Naghten 1843

2 Clarkson,
C.M.V.; H.M. Keating; S.R. Cunningham; Clarkson and Keating Criminal
Law: Texts and Materials, 2007, p.394

3 R
v Clarke 1972 1 All ER 219

Law Commission Report 2013: http://lawcommission.justice.gov.uk/areas/insanity.htm

Ashworth; Principles of Criminal Law,
2013 p.145


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