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Flashcards

Mental Disorder Defence

Shannon Russell English 48 cards

Cards in this deck (48)

  1. 1For the defence of insanity to apply, the mental defect must have rendered the accused incapable of exerting his reason to control his conduct and reactions. The question was whether the accused was of a sound or unsound mind at the time of the offence.HMA v Kidd
  2. 2It was not clear what was required for an absolute alienation of reason.Chalmers and Leverick, 2006
  3. 3Evidence suggested that there may have been a stigma attached to those found by the criminal law to be 'insane'.MacKay, 1995
  4. 4A change in label was needed because the term insanity was not only highly stigmatising but could also be seriously offensive.LC Discussion Paper
  5. 5Old fashioned language caused problems for medical experts to whom the terminology was meaningless.SLC Report
  6. 6Reform to mental disorderProvisions inserted into the CP(S)A 1995 by the Criminal Justice and Licencing (S) Act 2010.
  7. 7A person is not criminally responsible for their wrongful conduct if at the time of the offence, they were unable by reason of mental disorder to appreciate the nature or wrongfulness of their conduct.CP(S)A s 51A(1)
  8. 8Mental disorder is defined as a mental illness, personality disorder or learning disability, however caused or manifested.s 307(1) CP(S)A
  9. 9Mental disorders that consist only of a personality disorder characterised by abnormally aggressive or seriously irresponsible conduct.s 51A(2) CPSA
  10. 10Rationale is that it is unfair to hold a person criminally responsible when suffering from a mental disorder.SLC Report
  11. 11Choice theoristsOne can only be criminally responsible where one has choices
  12. 12Capacity theoristsOnly those with capacity can be criminally responsible
  13. 13Character theoristsOne is only criminally responsible where one's action properly relates to one's character
  14. 14The accused had no real choiceChoice theorists
  15. 15The accused could not have done otherwiseCapacity theorists
  16. 16Could not have helped itCharacter theorists
  17. 17These are the justifications for mental disorder under each theoryHart, 1968
  18. 18The capacity theory is the most generally accepted amongst academicsLC Discussion Paper; Shaw, 2015
  19. 19Purpose is to express society's commitment to certain moral values and to enable the wrongdoer to be called to account publicly.Communication theory of punishment
    Duff, 2001
  20. 20If a person lacks the ability to understand the wrongfulness of their action, conviction is futile and unjustShaw, 2015
  21. 21Mental disorder should be relevant for the purposes of negating mens rea, not as a special defenceGoldstein and Katz, 1963
    Gerber, 1975
  22. 22A potentially dangerous person with a MD acquitted on the basis of lack of mens rea will be free. More desirable that the court has powers under a special defence to impose a detention or treatment order.LC Discussion Paper
  23. 23There is no reason to distinguish a person with a MD and others driven to wrongful conduct by other circumstances outwith their control.Morris, 1982
  24. 24It is difficult to argue that mental disorder and social deprivation are equivalent bases.LC Discussion Paper
  25. 25Considers which actions or ways of acting a person should be held responsible for.Attribution theory
  26. 26The fact that a person has a mental disorder means that they should not be criminally responsible because they lack capacity.Tadros, 2001
  27. 27DeterminismFor every action, there is a whole set of conditions that are causally significant for bringing about that action.
  28. 28Discussions of determinismMoore, 1985
    Howard, 2003
  29. 29All mental elements preceding an action may play a role in bringing it about, e.g...Forming an intention, grasping a reason or taking a decision
  30. 30How far back can one rightly go to trace the cause(s) of an action - otherwise no one would ever be responsible.Shaw, 2015
  31. 31This denies the whole foundation of the CJS which presupposes that people are responsible for harm rather than merely causing itMoore, 1985; Horder 1996
  32. 32Capacity theorists object to the requirement of a connecting linkTadros, 2001; 2005
  33. 33The true basis of the defence is that the behaviour was caused by the MDAshworth, 1994
  34. 34Status defence is to rely on a pre-supposition that all MDs have the same effect on a person's responsibilitySLC Report
  35. 35The test for the MD defence must be based on the effects of the MD on criminal responsibility. Should be possible for the prosecution to argue that the offence and disorder were unconnected.SLC Report
  36. 36It would be materially unfair for a person, albeit with a MD, to escape conviction where the crime was uninfluenced by the MD.LC Discussion Paper
  37. 37To say that the offence was caused by something other than the MD is to fail to take into account how a MD can influence one's entire decision making process & ability to make rational, coherent decisions.Tadros, 2001
  38. 38Psychiatry profession claims that the criminal law is too focused on the individual act of the accused and too little concerned with their general abilities to live a coherent lifeHenderson, 1939
  39. 39A capacity model could help to further bridge the gap between law and psychiatryTadros, 2001
  40. 40Requirements of automatismAn external factor, such as a drink being spiked, to cause a total alienation of reason
  41. 41The defences share a moral basis, a denial that the accused had the capacity to be morally responsible at the time of the offence.Shaw, 2015
  42. 42Previous distinctions between internal and external causes was impractical and could result in the incorrect labelling of the offenderTadros, 2001
  43. 43A distinction could also result in fair labelling issuesShaw, 2015
  44. 44In relation to physical conditions being covered by the old insanity defence, argued that this amounted to a "gross unfairness of labelling"Ashworth, 2006
  45. 45Stigma could be minimised by giving the offence an appropriate name using neutral terms.Shaw, 2015
  46. 46Regardless of the name given, stigma may still arise, attaching to a type of person rather than the labelSartorius, 2011
  47. 47Alternatively, a single defence that includes automatism and temporary insanityTadros, 2001
  48. 48Temporary incapacitates cannot fit within a capacity model because this must relate to the type of person in generalTadros, 2001

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Flashcards on Mental Disorder Defence, created by Shannon Russell on 07/05/2017.
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Shannon Russell
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