General defences essay

General defences essay

1. Introduction

   • Insanity and consent are both general defences. Although Insanity covers all crimes consent does not cover murder and some of the more serious non fatals. There are problems with consent such as causing pain for sexual adornment is okay but not for sexual gratification. There are also problems with insanity like the stigma attached to it. I will be looking at the Law Commissions proposals for improving the law and how effective this may be.
   • Conclusion
     • Overall, both defences are fair but the solutions proposed by the law commission for insanity would be helpful as people would not be put of by the stigma attatched to it. However, this could cause issues as then there would be no point in having diminished responsibility as a defence.

2. Paragraph 1

   • The first problem with insanity is the stigma atatched to it
   • The treatment attached to insanity is also another reason people do not like to use it as you do not know when you are getting out. Legally and mentally insane are different things so a hospital order is nnot always necessary. Insanity comes with a special verdict which is that you are not guilty by reason of insanity.
   • Certain terms within insanity are out of sync as 'insanity' and 'disease of the mind' are both terms that are not used medically. This can therefore add to the stigma attached as the terms aren't defined medically so people make up what they think it means. They are also legally outdated.
   • Insanity was introduced 1843 which shows it should really be updated as a lot has changed since that was made
   • HENNESSY- people criticise this case as Hennnessy was allowed the defence of insanity even thought he only had diabetes (hyperglysemic state). Yet he is still given the label of being insane when diabetes is not associated with being insane.
   • QUICK- In this case D also had diabetes but was in a hypoglysemic state due to too much insulin.However, this case is different as this was caused by an external cause which was the insulin so this was automatism.

3. Solutions

   • The solutions to Insanity have been suggested by The Law Commission in a discussion paper.
   • The Law Comission wants to abolish insanity and create a new special verdict which would be 'not criminally responsible by a reason of a recognised medical condition.' This would mean that there would be now stigma attached to it as 'insane or 'insanity' is not being used.
   • However, this is the same terminology that is used in diminished responsibility. So this means that there would be no point in this.
   • This would solve the problem with Hennessy and Quick as they can both use the same defence. In addition, people may actually be less reluctant to use th defence of insanity as there is no stigma attatched.

4. Paragraph 2

   • Consent
   • The first problem with consent is that why is causing pain for sexual gratification is not acceptable but causing pain for sexual adornment is.
   • Brown- Consent was not allowed in Brown as it wasn't within public interest as some of them involved were under 21. In addition the judge thought that it would 'breed cruelty to others' as well as all of thumbing under the influence of drink and drugs.
     • However, this decision could have been based on morality as homosexuality was not widely accepted, normal people would not do this fro sexual gratification and the fact of the amount of violence involved.
   • Wilson- consent was allowed in the case of Wilson as they were in a relationship as husband and wife so they are entitled to their own private life. IN addition, she did consent to it and it was her idea as well as the fact that there was only 2 people involved.
   • Differences between the two: Motive in Brown was pain however in Wilson it was sexual adornment. However, in Wilson she had to be hospitalised whereas in Brown no one had to be.

5. Paragraph 3

   • The second problem with consent is that consent works as a defence to horseplay even if V isn't actually consenting.
   • Jones- suffered a broken arm and a ruptured spleen. V was not consenting.
   • Aitken- suffered serious burns. V was not consenting.
     • V's genuine belief must be taken into account as MR is more important than the act itself as it was what they were thinking at the time is a good judge of character.
     • This be criticised in Aitken as D was wearing a fire resistant suit and spirit was poured all over him so this could suggest he did consent.