Friday, 9 August 2013

Criminal law ~ The Law Commission on Insanity and Automatism

Included in recent publications by the Law Commission are: (a) Discussion paper on Insanity and Automatism published 23 July 2013 and (b) Unfitness to Plead consultation responses published 10 April 2013.

a) Insanity and Automatism:

In July 2012, the Law Commission published a Scoping Paper to find out how the criminal defences of insanity and automatism operate in practice.  The responses to that paper have informed the Discussion Paper which is now published.  The Discussion Paper contributes to the continuing debate on whether the law has the right test to distinguish between those who should be held criminally responsible for what they have done, and those who should not..  More information
on this project can be found on the project page  where there is also material about the law as it currently is.
Provisional conclusions and proposals are at page 192 (Chapter 10).

The Commission provisionally proposes the the abolition of common law rules relating to insanity and the creation of a new statutory defence of not criminally responsible by reason of recognised medical condition.  The defence will have to adduce expert evidence of a qualifying recognised medical condition.  Some conditions will not qualify (e.g. acute intoxication).  Whether a condition qualifies or not will be a question of law.  Once the defence has adduced sufficient evidence of the condition, it will then be for the prosecution to disprove that beyond a reasonable doubt.  If the defence is established there will be a special verdict of 'not criminally responsible by reason of recognised medical condition' and this would lead to either a hospital order (with or without restriction) or a supervision order or an absolute discharge.

Further provisional proposals are to abolish the common law rules on the defence of automatism.  Where the magistrates or jury find that the accused raises evidence that at the time of the alleged offence he or she wholly lacked the capacity to control his or her conduct, and the loss of capacity was not the result of a recognised medical condition (whether qualifying or non-qualifying), he or she shall be acquitted unless the prosecution disprove this plea to the criminal standard

b) Unfitness to plead:

Unfitness to Plead consultation responses published 10 April 2013.  The Commission states|:

When a person is facing prosecution in a criminal trial, he or she may be found “unfit to plead and to stand trial”. The legal test for determining fitness to plead has numerous faults.  It dates from 1836 when the science of psychiatry was in its infancy. The law developed in a piecemeal way and independently of developments under the European Convention on Human Rights on “effective participation” as part of the right to a fair trial.

Given the vulnerability of people with learning disabilities and of those with mental illness, modern criminal law should be informed by modern science, and in particular by modern psychology and psychiatric findings.

The legal test for fitness to plead needs to be reformed so that it is fair and suitable for the criminal justice system of the 21st century.




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