Reform of Defences - example essay

There are several controversies in sentencing, such as in the cases of Brown (1994) and Wilson (1997). Brown did not have a defence of consent, whereas Wilson did despite the fact that the ‘victims’ in Brown did not need medical care, whereas the victim in Wilson did. It is noted that these cases are distinguished by the fact pain for sexual gratification is not allowed, while causing it for body adornment is allowed. This could be because the judges are trying to impose their own moral values to law, which would be illegal because it would be judicial law-making. The same thing happened to Emmett (1999) where it was ruled that there is no defence if harm is more than ‘transient or trivial’ injury. Yet in Wilson it was allowed.

For sexual offences the defence of consent is not always available. E.g. s5 of the Sexual Offences Act 2005: rape of a girl under 13. It is a presumption that a girl under 13 is never to be able to consent to sexual intercourse, therefore the crime of rape is also a strict liability offence. The problem arose in the case of G (2008), where a 15 year old boy has sex with a 12 year old girl that he thinks is of the same age as him. He is convicted of rape. He appeals to say that his human rights have been breached but unsuccessful. The House of Lords gave a verdict of 3 to 2. The fact that 2 judges were in favour of D shows how difficult law in this area is.

Furthermore, when it comes to euthanasia no-one can consent to their own death at the hand of others. This absurdity of this is shown in R (on the application of Pretty) v DPP (2001) where Mrs. Pretty knew she was going to become totally paralyzed and wanted her husband to kill her when she becomes that way. She applies to the DPP for guidance on this matter and it was decided that as a rule V must take his own life, if he was killed by D, D is guilty of murder, or guilty of assisting suicide if D merely assisted them. In the case of R (on the application of Purdy) v DPP (2009), it is unclear whether D is guilty of assisting suicide if he takes V to a country where assisted suicide is legal. In both cases, the Pretty and Purdy applied for judicial declaration that their to-be suicide assisters are not to be prosecuted as they have consent, but this has been refused by the DPP.

The most obvious problem with insanity is that its definition insanity is old as set out in the M’naghten case (1843). This definition is legal rather than medical. This means that people suffering from certain mental disorders do not come within it, e.g. from irresistible impulses (Byrne) and people who can’t stop themselves from doing something. However, those suffering from physical illnesses such as diabetes (Hennessy), brain tumors or hardening of the arteries (Kemp) or sleepwalkers (Burgess) are legally insane.

Insanity overlaps with automatism. It becomes necessary to see if the defendant is put into an automatic state by an internal or external factor. If it is an internal factor, that is insanity. If it is external, it is automatism which is a complete defence. All illnesses, mental or physical, affecting the mind, will suffice for insanity. Therefore there is no longer non-insanity defences to epileptics and diabetics. This creates an strange position for diabetics, where there defence relies on them failing to take insulin or failing to eat after taking insulin (Sullivan & Quick).

The decision in Windle is also disputed. It was ruled that D cannot be classed as insane if he knows what he is doing is legally wrong, even though he does not know that it is morally wrong.

The word insanity has a social stigma. It is inappropriate for most people, especially diabetics and epileptics.

The burden of proof of insanity is on the defendant. This is contrary to Art 6 of the European Convention on Human Rights saying D is innocent until proven guilty.

Proposed reforms are made in 1953, the Royal Commission on capital punishment suggested that the M’Naghten Rules should be extended to add that D ‘was incapable of preventing himself from doing the act’. This was responded by the introduction diminished responsibility. But this is only for murder, not available for anything else.

In 1975, Butler Committee suggested that insanity should be replaced with ‘evidence of mental disorder’. But this would not solve anything, it is only a name change. The same goes for the the Law Commission’s Draft Criminal Code in 1989 which proposed that insanity is changed to “evidence of severe mental disorder/handicap”.

None of these proposals have been implemented. Nevertheless, the sentence is at the discretion of the judge meaning the judge can be flexible depending on whether the defendant is truly insane or not.