Created by
Terms in this set (11)
General defences are the type of defences that can be pleaded to a multitude of offences. For example, consent can be pleaded to a range of non-fatal offences. Specific defences, such as Section 52-56 Coroners and Justice Act 2009, Diminished Responsibility and Loss of Control, are those type of defences that can be pleaded against a specific offence, in this case, murder, and they cannot be applied to any other crime. Here all defences can act as a full defence which if successful, will result in the defendants acquittal.
In murder, if the defendant is successfully shows he acted responsibly, the killing will be rendered lawful and the Actus Reus will be removed. Also, a general defence can act as a partial defence which will lessen the defendants liability and can result in a lower sentence. For example, voluntary intoxication will lessen the defendants liability if he has committed a specific intent crime. For this essay I will critically evaluate the general defences of insanity and intoxication.
The law of insanity is found in the three stage test our forward by the McNaughten case. The test itself is almost 170 years old and there's been little intervention from parliament. In 1953 evidence was given to the Royal Commission on Capital Punishment that doctors even regarded the legal definition was obsolete and misleading.
The defence is now rarely used due to the introduction of Section 52 Diminished Responsibility, Coroners and Justice Act 2009. Insanity was mainly used for murder (to avoid the death sentence) but the uncertainty of the hospital sentence means Diminished Responsibility was more appealing due to the avoidance of the mandatory life sentence. Also, the two defences are similar and so in some ways can be swapped for one another. For example, both require impairment and both require some form of medical condition.
The McNaughten rules are subject to intense criticisms, mainly from the medical profession. The rules are based on an outdated psychology from the 1840s that excludes people that should be acquitted. Currently there is a huge disparity between the legal definition and that stated by the medical profession. For example, in law, someone could be labelled insane by virtue of his epilepsy (R v Sullivan), diabetes and even sleepwalking. Clearly, this wouldn't satisfy the medical definition or even by the common public.
In terms of criticisms for the defence of intoxication it is clear that Majewski takes most of it. The case tells is the defendant may have a partial defence in voluntary intoxication provided he committed a specific intent crime. Also that the is no defence if the crime is of basic intent, as by getting intoxicated satisfies the recklessness needed. While it is widely recognised that intoxication can negate a specific intent crime, it begs the question that surely it should also be capable of negating a basic intent one?
Further, while most specific intent crimes have a fall back offence which an intoxicated defendant can be convicted or (Section 18 me Section 20 Offences Against the Person Act 1861), however, some don't such as theft. In such a case the defendant could escape conviction completely if he lacks the Mens Rea for the specific intent crime. All of this leaved Majewski illogical in its approach.
One significant reform proposition came from the Butler Committee in 1975 on Mentally Abnormal Offenders which said major reform was necessary. They recommended the introduction of a new verdict "not guilty by reason of mental disorder" which would apply when the defendant was unable to form the Mens Rea due to a mental disorder or when the defendant was aware of his actions but was suffering from a severe mental disorder.
These reforms were ignored, but the Draft Criminal Code Bill (1989) by the law commission did incorporate some of them in clashes 35 and 36. According to Clarkson and Keating, these proposals would be a significant improvement on the present law, as they would avoid the offensive stigma of the insanity label and they will bring the legal definition more in line with medical terminology.
1/2