Informing the debate on the insanity defence
The Law Commission has released a discussion paper that examines the rules governing the defences of insanity and automatism and considers whether they are working.
It is widely acknowledged that there are problems with the existing rules in principle:
• It is not clear whether the defence is available in all cases
• The law lags behind modern psychiatric understanding
• The label of “insane” is outdated and, in relation to people with learning disabilities or epilepsy for example, simply wrong
• The case law on insane and non-insane automatism is incoherent and produces results that run contrary to common sense.
In 2012 the Commission published 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 Commission is 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 Commission website: www.lawcom.gov.uk
