Defences 2

Defences 2

1. Insanity

   • Evaluate the idea that
   • Evaluation of Defence of Insanity and Automatism
   • Defect of Reason
     • inability to use powers of reason - must be a complete loss of reason
       • Clark (1972) - absent mindedness is not defect of reason
   • Caused by disease of the mind
     • A legal not medical term - anything in body - must be physical
       • Sullivan (1983) Charlson (1955) intermittent or transient  Kemp (1957) Burgess (1991)
       • Diabetes - Hypoglycaemic - Quick (1957) External
         • Diabetes - Hyperglycaemic Hennessy (1989) - Internal
   • Defendant does not know the nature and quality of act or as to not know what they are doing is wrong
     • Prove any of following :- Did not know what doing Did not appreciate consequences of .....Did not appreciate circumstances in which acting
       • Windle (1952) Johnson (2007) Byrne (1963)
   • Only relevant at time of offence - cannot be used for offence with MR
     • Defence or Prosecution or judge can raise at any time - if judge or P raises defence then must prove BRD
       • Hardly used since intro of diminished responsibility and abolition of death penalty
         • If defence proven then verdict is D "not guilt by reason of insanity"
           • Criminal Procedure (Insanity and unfitness to plead) Act 1991. If murder must make hospital order restricting defendant discharge immediately. Other offences:- 1/ Hospital order 2/ Guardianship order 3/ Supervision or treatment order 4/ Discharge

2. Automatism

   • Defined as "an act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done while suffering from a concussion or whilst sleep walking
   • Insane automatism
     • Where cause of automatism is a disease of the mind as with the M'Naghten rules.  In such cases the defence is insanity and verdict not guilty by reason of insanity.
     • Non -insane automatism
       • Where the cause is an external one.  Where such a defence succeeds it is a complete defence and the defendant is not guilty.
       • Actus Reus is not voluntary
         • Reduced or partial control is not sufficient to constitute non insane automatism.  A -G Reference  (No 2 of 1992) 1993 held must be "total destruction of voluntary control"
         • Blow to head
           • Attack by swarm
             • Sneezing
               • Hypnotism
                 • The Effect of a drug
       • Self Induced - when D knows conduct likely to bring on automatic state.
         • Bailey (1983) failed to eat enough after taking insulin to control diabetes.  became aggressive and hit someone with a crowbar. Offence was specific intent and so self induced can be a defence. Lack the required mens rea.
         • If basi intent then must prove recklessness
           • Where self induced through drink or drugs cannot use automatism.
             • Where unaware actions likely to lead to a self induced automatic state in which he may commit an offence , not been reckless can use automatism
               • Hardie (1984)  valium prescribed for  girlfriend - convicted of arson.  CoA quash as he thought it would calm him - so not reckless and defence of automatism should be left to jury.
   • Problem = has to be decided on case by case whether insane or non-insane
   • Reform
     • Draft Criminal Code (1989) "a person is not guilty of an offence if - A) he acts ina  state of automatism, that his act is i) a reflex, spasm or convulsion ii) occurs while he is in a  condition  (whether of sleep, unconsciousness, impaired consciousness or otherwise) depriving him of effective control of his act; and B) the act or condition is the result neither of anything done or omitted with the fault required for the offence not of voluntary intoxication.
     • Defendants would have full defence.
       • Takes away present system which allow judge to order medical treatment for those not guilty by reason of insanity
         • Scoping paper 2012 on defences of insanity and automatism. So close should be done together.