For the trial to go ahead, the defendant must satisfy the fundamental precondition that they have sufficient capacity to be held responsible for the criminal offence they are on trial for.
Infancy:
The age of criminal responsibility in England and Wales is 10 years. [1]
Abolition of ‘Doli Incapax’ Rule:
The Doli Incapax rule was abolished in 1998. [2] It required that children under 15 knew that their behaviour was seriously wrong in order to try them at court. This creates a subjective problem.
In 1993, 2 ten year old boys murdered James Bulger (aged 2). There was heavy controversy over whether they should be tried because of the rule.
In R v JTB, D incited V to engage in sexual activity. Both were under the age of consent. The House of Lords held that the rule had been abolished under the Crime and Disorder Act 1998, so D could not rely on the defence of doli incapax infancy.
Fitness to Plead:
Whether the defendant is fit to plead takes reference to their mental capacity at the time of the trial.
A question of whether the defendant is ‘of sufficient intellect to comprehend the course of proceedings on the trial so as to make a proper defence… and comprehend the details of the evidence.’ [3]
The burden of proof is on the defendant to prove that they are unfit. The judge will make the decision based on medical evidence.
If the defendant is unfit, they avoid criminal conviction.
Unfit to Plead Reasons [4]:
The defendant is unfit to plead if they fail on one or more ability:
Understanding of the charges.
Deciding whether to plead guilty or not.
Exercising their right to challenge jurors.
Instructing solicitors or council.
Following the course of the proceedings.
Giving evidence in their own defence.
In M (John), D was convicted of various sexual offences against a minor. Medical evidence suggested that D suffered from short term memory loss caused by long term alcohol abuse, but he was otherwise capable of understanding the charges against him. D's appeal was dismissed.
Reform:
The modern approach is to adapt the trial process to be more inclusive, rather than prevent a case from going to trial at all. All assistance should be given to the defendant to allow them to stand trial.
Insanity:
Insanity takes reference to the defendants mental capacity at the time the offence was committed.
A question of whether the defendant has a medical condition that affects ‘the mental facilities of reason, memory and understanding’, [6] not whether the defendant has a mental condition. This is a question of law, not medicine.
M'Naghten Rules: ‘it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong’. [5]
The burden of proof is on the defendant the prove that they are insane.
If the defendant proves the defence of insanity, they receive a special verdict of not guilty. Judge decides between absolute discharge, a supervision order or hospital admission.
Denning LJ: ‘any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal’ [7]
In Sullivan, D attacks a man during an epileptic fit. Medical evidence suggested that D was making automatic movements without being conscious of them. The House of Lords upholds verdict of not guilty by reason of insanity.
Insanity is an infrequently used defence (<20 defences per year). [11]
Reform Suggestions [12]:
The Law Commission suggested that the rules established in M’Naghten are too wide in some aspects and too narrow in others, potentially breaching ECHR. They suggested abolishing the defence of insanity and replacing it with another defence based on a lack of capacity in a medical sense.
Diminished Responsibility:
Diminished responsibility is used where medical evidence shows some mental disorder but does not sufficiently satisfy the requirement for insanity.
The burden is on the defendant.
The defence is a partial defence to murder. This means that, if successfully argued, the changes charge to voluntary manslaughter.
In Clarence, D killed 3 children. D had low cognitive ability and successfully plead diminished responsibility. His charge was reduced.
In Brennan, the issue arose as to whether the jury can still convict of murder even if the partial defence of diminished responsibility is used. The court decided that the jury does not have this right – they can only charge under manslaughter once medical evidence proves diminished responsibility.
Homicide Act 1957, as modified by Coroners and Justice Act 2009:
s2(1) – D not guilty of murder if D was suffering from an abnormality of mental functioning:
s2(1)(a) – arose from recognised medical condition.
s2(1)(b) – substantially impaired D’s ability to:
s2(1A)(a) – understand the nature of D’s conduct.
s2(1A)(b) – form a rational judgement.
s2(1A)(c) – exercise self-control.
s2(1)(c) – provides an explanation for D’s acts and omissions in doing or being party to the killing.
s2(1B) – provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.
In Golds, it was decided that the meaning of ‘substantially impaired’ is an ordinary English word, so should be left to the jury to decide what it means. If the jury need further assistance, they should be told it means ‘important or weighty’.
In Dowds, D killed their partner V by stabbing 60 times with a knife while intoxicated. They appealed on ground that his acute intoxication was a medical condition but the appeal was dismissed. The court noted that the presence of a recognised condition is only relevant to bringing up the defence, not proving it entirely.
Automatism:
This defence can be used when an external cause causes non-insane automatism.
If the defence is successful, it will lead to an acquittal.
In Quick, D suffered from hypoglycemia. The external cause was the insulin, so automatism defence could be relied upon.
In Hennessy, D suffered from hyperglycemia. Since the cause was internal (diabetes), the defence could not be relied upon (used insanity instead).
Prior Fault:
The defendant cannot take advantage of a condition if it arises through their own prior fault.
In Bailey, D took insulin and did not eat enough. Therefore, their automatism was self-induced and the defence could not be relied upon.
Intoxication:
'a person whose awareness is impaired by intoxication shall be taken to be aware of that which he would have been aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment' [13]
Specific Intent Crimes:
Neither voluntary or involuntary intoxication is a defence, but it may prevent a person from forming the necessary mens rea for the offence.
In Coley, D was a regular and heavy user of cannabis and played violent video games. Dressed in dark clothing and a balaclava, he entered his neighbours house and stabbed her. When interviewed by police, D said he had ‘blacked out’ and had no memory of the events. Evidence suggested that the cannabis caused a psychotic episode whereby he thought he was a character in a game. However, his voluntary intoxication did not prevent D from forming the intent found by the jury, so the appeal was dismissed.
Basic Intent Crimes (Intention, Recklessness or Negligence):
Voluntary intoxication is never a defence to crimes of basic intent, but may be a defence for involuntary intoxication.
Intoxication and Other Defences:
Intoxication does not necessarily prevent the defendant from using another defence, however. EG: diminished responsibility or insanity, which was merely aggravated by the intoxication.
In Dietschmann, D attacked and murdered V while voluntarily drunk. As D’s mental abnormality, despite the drink, substantially impaired his reasoning he could rely on diminished responsibility. Conviction changed from murder to manslaughter.
References:
[1] Children and Young Persons Act 1963 s16 [2] Crime and Disorder Act 1998 s34 [3] R v Pritchard (1836) 7 C. & P. 303 [4] R v M (John) [2003] EWCA Crim 3452 [5] M'Naghten's Case (1843) 10 C & F 200 [6] R v Sullivan [1984] AC 156 [7] Bratty v Attorney General for Northern Ireland [1963] AC 386 [8] R v Hennessy [1989] 1 WLR 297 [9] R v Burgess [1991] 2 WLR 1206 [10] R v Kemp (1957) 1 QB 399 [11] Law Commission, Criminal Liability: Insanity and Automatism Supplementary Materials (2012) B12 [12] Law Commission, Criminal Liability: Insanity and Automatism Scoping Paper (2012); Law Commission, Criminal Liability: Insanity and Automatism A Discussion Paper (2013) [13] Public Order Act 1986 s6(5)
Cases Mentioned:
R v JTB [2009] UKHL 20
R v M (John) [2003] EWCA Crim 3452
R v Sullivan [1984] AC 156
R v (Tania) Clarence (2014)
R v Brennan [2014] EWCA Crim 2387
R v Golds [2016] UKSC 61
R v Dowds [2012] EWCA Crim 281
R v Quick [1973] QB 910
R v Hennessy [1989] 1 WLR 297
R v Bailey [1983] 1 WLR 760
R v Coley and others [2013] EWCA Crim 223
R v Dietschmann [2003] UKHL 10 Crim LR 550
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