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Does insanity defence need reform?

Does insanity defence need reform?

Law Commission | Law Commission

2 min read Partner content

The body charged with reviewing the law has said changes may be needed to the insanity defence.

The Law Commissionhas released a discussion paper that examines the rules governing the defences of both insanity and automatism.

Automatism is rarely used, and means the defendant was not aware of his actions when making the particular movements that constituted the illegal act.

The case law on insane and non-insane automatism is “incoherent and produces results that run contrary to common sense”, and the law lags behind modern psychiatric understanding, according to the Commission.

It said there are “widely acknowledged” that there are problems with the existing rules, including a lack of clarity whether the defence is available in all cases..

In 2012 the Commissionpublished a scoping paper as part of a fact-finding exercise to investigate whether there were also problems with the law in practice.

Professor David Ormerod QC, the Law Commissioner leading on the project, said:

“We asked whether the law governing the insanity defence was causing problems in practice and, if so, what was the extent of those problems.

“From the responses we received, it is clear that there are indeed problems, but that practitioners largely work round them.

“However, it is also clear that practitioners think the work the Law Commissionis doing to reform the law on unfitness to plead is more urgently needed.

“For this reason, we are prioritising our work to bring the legal test for fitness to plead up to date so that it is fair and suitable for today’s criminal justice system.

“We would like, in due course, to return to our investigation of the insanity defence.

“In the meantime, we offer this paper to inform the continuing discussion 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.”

The discussion paper, Criminal Liability: Insanity and Automatism, is available on the Law Commissionwebsite:

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