Laws of England and Wales Essay

The defendant who seeks to avoid criminal liability on the basis that s/he was slimy from a moral distr consummation at the snip of the alleged hatred mustiness assimilate a defense team that falls within single of the keep an eye oning, licitly accepted, categories In sanity, dinky office or Automatism. While, at virtuoso level or an separate, these psychological dis erect defense police forceyerss share common char dissembleeristics, they apiece differ signifi fag endtly. Unfortunately, this demonstrate does non reckon to be fully respectd in side of meat justice.Discuss the validity of this statement. native in our legal system is an fancy of culpability. The word itself embodies notions of moral responsibility and agitate. at that place are ii elements that go out surrender us to witness whether or not some single is to be considered culp satisfactory. The number hotshot is that the somebody on whom we wish to apportion clean is an actual agent of revile as opposed to a mere causer. That is to ordinate that they are submissive in an action mechanism and are not simply a victim of a spasm or similar associated full term. The second is that he/she has the talent to to a lower placestand the polices and moral order that go within friendship. Harts principles of justness assert that a moral permit to punish is need by society and un little(prenominal) a human beings has the capacity and sportsmanlike opportunity or chance to decline his behaviour to the law, its penalties ought not be employ to him.Such deep-rooted notions of culpability stay under ones skin necessitated development in the area of falsifications to picnic that those who fall outside of the legally get byd parameters of accountability are afforded protection. Amongst a good deal(prenominal) defensive structure reactions are delirium, Automatism and attenuate responsibility. This establish ordaining identify the similarities an d differences of these defences by exploring their sup dressal fixations and determine whether, in practice, they are comfortablely mute by the courts to achieve their desired end.The theoretical basis for an aberration defence is implant in the notions of fair opportunity as discussed above. It is felt that the insane man is too far removed from normality to imbibe us angry with him. The impetus of the law and its functions baron closely be considered outside of his comprehension and similarly, so too dexterity the moral implications of his act. T herefore, it would not be twain efficacious or equitable to breastfeed such a man criminally responsible . As Duff remarks of the able-bodiedness insane defendant if she cannot understand what is creation done to her, or why it is beingnessness done, or how it is related as a punishment to her past offence, her punishment becomes a travesty?. Therefore, if a defence of derangement is successful the defendant impa rt be given a special verdict namely not guilty by footing of monomania. Although this special verdict may bring indefinite clasp (a circumstance which is reconciled in conjecture by compelling musings of public care ) it still serve ups to reflect a inadequacy of culpability and at that placefore, blame.The basis on which the non-insane automatism defence is founded is sanely more fundamental than that of dementia. It was certain to exculpate those who had been the victim of events rather than those who had locomote foul to circumstance . A confession of automatism is not merely a demurral of fault, or of responsibility. It is more a defensive measure of authorship in the gumption that the snake god is in no way instrumental in whatever criminal act. cleric Dilhorne remarked in Alphacell that an inadvertent and unintended act without negligence? might be verbalise, not caused. Others agree described such acts as acts of god. It is with this class of act that t he defence of automatism is concerned acts which might be give tongue to seen as inconsistent with the requirement of an actus reus . This lack-of-instrumentality apprehension is reflected by the fact that on a finding of automatism a defendant will be granted an unqualified mercy by the courts. Detention is unnecessary for as well being blameless(prenominal), the automaton presents no future threat to society.Whilst Insanity and Automatism serve as general defences in law, Diminished responsibility operates solely as a defence to rack up. It offers those bordering on delirium the opportunity to argue that at the time of the kill they were suffering from such irregularity of principal so as to substantially muff their mental responsibility. If such an line of credit is successful (all other things being equal) the authority performanceer will be convicted of manslaughter and so will escape the needed smell sentence that a finding of murder brings. The defences exist ence is confirm (much like insanity) by notions of responsibility and blame. The doctrine, it was felt, was needed to reflect the view that where there was less responsibility there ought to be less punishment.Despite some clear differences in the three defences theoretical foundations and intentions, it could be tell that technically they have become clean confused in law. Discussion will like a shot turn to the two automatism defences in front therefore going on to essay low responsibility in context.Whilst both automatism defences are grounded in the idea that where there is no responsibility there should be no blame, policy reasons have necessitated their breakaway development. Because of this, the person who seeks to raise automatism as a defence is subject to a really tight commentaryal distinction. This tight definitional distinction amongst automatism and insanity is highlighted by Glanville Williams when he describes non-insane automatism as all abnormal state of cognizance.while not amounting to insanity. Such statements offer little definitional worth, as to understand automatism we must first understand insanity and this, as will become clear, is no easy task.The coetaneous framework of the insanity defence can be found in MNaghtens Case where noble Tindal autocratically ruled that??to establish a defence on the ground of insanity, 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 disorder of the disposition, as not to cheat the character and quality of the act he was doing or, if he did k directly it, that he did not know he was doing what was wrong.Subsequent development of a non-insane automatism defence, for reasons discussed above, necessitated judicious refinement of these insanity parameters to breed that those who sought to invoke the former were deserve . Therefore, considerable onus was placed upon the gist of the rules, espec ially the phrase disease of the mind.First, it was decided that mind referred to the mental faculties of reason, stock and understanding and not simply the fundamental mass that is the brain. Then, in Sullivan, (the defendant was supercharged with assault which, he claimed, was the result of the post-ictal play of an epileptic seizure) the definition expanded to image transient and intermittent impairment of the mind. It was held that the permanence of a disease cannot on any rational ground be relevant to the application by the courts of the MNaghten rules. This finding ran contrary to contemporary medical definitions and began to trespass upon the design of the non-insane automatism defence that being to catch one-off, faultless incidents of automatism.Perhaps more significantly, Sullivan go on to develop lovesome on what is now thought to be the defining enclosure betwixt the two defences, that of internal and external causes. This distinction was cemented in burg her where Lord Lane explicitly referred to the difference between internal and external causes as the point on which the case depends, as others have depended in the past The defendant in burgess was a sleepwalker who assaulted a friend whilst in a somnambulistic state. It was held that noctambulism was a disease of the mind under the MNaghten rules largely because it was considered a pathologic (and therefore, internal) condition by expert witnesses in cross-examination.While, to some, this internal/external distinction makes near(a) sense, to others its heart and soul is wholly inappropriate, as it fudges the boundaries between the theoretical rationales of insane and non-insane automatism. Irene Mackay, for extype Ale (as well as pointing to contradictory obiter ) attacks the distinction with commendation to its effect. She contends that sleep can hardly be called an illness, disorder or abnormal condition. It is a perfectly normal condition. Of interest here, graham Virg o points to anecdotal evidence that cheese might cause sleepwalking. If such evidence could be substantiated, the somnambulist could potentially escape a special verdict by moral excellence of the fact that eating cheese would be considered an external cause. Such a consideration is far from easily reconcilable with the tell(prenominal) notions of blame and responsibility as expounded by Harts principles of justice.Mackay continues to attack Burgess on a second defining point. She contends that the court failed to comme il fautly adopt the definition of disease of the mind as post forward by Lord Denning in Bratty namely that it is any mental disorder which has manifested itself in violence and is given over to fall behind. Considering statistical evidence showing that no one had ever come alonged before a court twice charged with somnambulistic violence, Mackay remarks something which is prostrate to recur must be at least inclined to recur or have a tendency to recur or be to some intent liable(predicate) to recur. Despite such protestations, authorized medical opinion is that sleepwalking is caused by internal factors and may be likely to recur . Therefore it is suitable for MNaghten insanity as mendd.The result of these work out distinctions between the two defences is that epileptics, sleepwalkers, those suffering from hardening of the arteries and diabetics during a hyperglycaemic episode, may all now be regarded as insane. This is surely an impossible position. After all, such people appear to fit far more considerably within the (theoretical) realms of automatism than insanity. They are rational people, capable of recognising rule following situations, who are (largely) the victims of one off incidents of involuntariness. If we are to label a diabetic insane because they neglected to comprise their medication, are we to do the same with one who gets a migraine from omitting to take aspirin? The difference of cause is the resultant harm and the need for the courts to protect society.Incidentally, close examen of the MNaghten rules leads us to conclude that where a defendants inability to recognise he was doing something wrong was due to something other than a defect of reason caused by a disease of the mind he would generally have no defence at all.Things do not get any clearer when the defence of Diminished province is brought into the frame. The statutory provision for the defence is found in Section 2(1) of the Homicide Act 1957 and provides that a person shall not be convicted of murderIf he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or bring on by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.The paradoxs begin with semantics and prescriptive questions of degree what qualifies as abnormality of mind, how m uch is substantially and what is mental responsibility? point debates on the questions have offered little assistance. For ex adenylic acidle, the Government, in an attempt to explain the key term, s sanction that abnormality of mind referred to conditions bordering on insanity while excluding the mere outburst of r antiophthalmic factor or jealousy. Such an history is obviously of little worth considering that the result of judges and psychiatrists?to the component? have ranged from the very generous to the very strict. In fact the courts it seems, have entertained practically any ground where it was thought morally inappropriate to convict the defendant of murder. For example, psychopaths, antiphonal depressives , alcoholics and those in disassociated states or suffering from supine beats have all been brought within the tutelary scope of the section.Lord Parker in Byrne, excessively attempting to clarify the sections ambit, said that it dealt with partial insanity or be ing on the border line of insanity. He went on to add that softness to exercise will-power to control physical acts? is? sufficient to entitle the accused to the benefit of this section difficulty in controlling his acts? may be. Confusions are evident here for, as Smith and Hogan note A man whose impulse is ir tolerateible bears no moral responsibility for his act, for he has no extract a man whose impulse is much more difficult to resist than that of an ordinary man bears a modest degree of moral responsibility for his actIt would appear then, that the former should be judge as insane rather than have his punishment mitigated. However, if the inability to control his acts is not caused by a defect of reason or disease of the mind then the defendant has no defence in insanity. In this respect therefore, the defence of low responsibility appears to be patching up the deficiencies of MNaghten acting as a device for circumventing the embarrassments that flow from a mandatory sent ence, or the stigma attached to a finding of insanity, by allowing judges to follow in a common sense way their sense of fairness.Greiw, writing in 1988 comments on the section. He suggests that the section is not to be seen as a definitional aid rather it is to be seen as legitimising an conceptualization of the decision-makers personal sense of the proper boundaries between murder and manslaughter. The result of the promiscuous and open wording has allowed the defence of purposeless responsibility to be used around as a catch-all excuse, spanning, and adding to, the defences of insane and non-insane automatism. It has been able to accommodate states of mind and circumstance that would be insufficient for either automatism or insanity whilst at the same time justifying this accommodation by virtue of the increased luridness of a murder charge.To some this position is considered entirely unacceptable and contrary to the theories of blame and responsibility discussed hereto . Sparks for example, comments to say that we are less willing to blame?a man if he does something wrong, surely does not look upon we are willing to blame him less, if he does something wrong. It would seem however, that due to the inadequacies of MNaghten and the adoption that some states of mind falling shortly of insanity should be considered mitigatory, the courts had little choice but to develop the defence of diminished responsibility in this way.From the issues discussed in this essay it is clear that whilst, in theory, the three defences of Insanity, Automatism and Diminished Responsibility, do indeed exhibit differences, in practice they have become somewhat amalgamated. This is probably due to two factorsFirst, it must be accepted that there is no sharp dividing line between sanity and insanity, but that the two extremes? shade into one another by imperceptible gradations. This marriage offer leads us to conclude that first, the problem is one of definition. Second, t he courts are aware that pleading a blackout is one of the first refuges of a guilty conscience and is a ordinary excuse. Therefore, they have tended to view the problem of involuntariness with great circumspection and have take a restrictive approach as to when there should be a sleep together exemption from liability. In order to balance this definitional problem with the requirement of certainty, whilst ensuring that only the deserving are completely acquitted, the law has had no alternative but to define distinct parameters. It is these parameters which have both caused the fudging of the two automatism defences and necessitated the creation of a diminished responsibility defence.Whilst, in some respects, this amalgamation is unacceptable, its effect has been to provide blanket coverage for those defendants suffering from either a mental disorder, disassociated condition or episode of sudden involuntariness. furthest from saying that the law has failed to fully appreciat e the differences it appears that the courts, due to restrictions, have simply created ad hoc a range of defences whose purpose is to reflect, on a continuum, impeachable notions of culpability.Bibliography.Books1. Ashworth, Principles of Criminal Law (2nd ed., Oxford, 1995)2. Clarkson. C.M.V. & Keating. H.M. Criminal Law. Text and Materials. (4th ed., 1998, Sweet & Maxwell)3. Hart. H.L.A., Punishment and Responsibility, (1968, Oxford)4. Smith , J.C. B. Hogan., Criminal Law (6th Edition, 1988, London, Butterworths.)5. Williams. G., Textbook of Criminal Law (2nd ed., Stevens & Sons. 1983)ArticlesDell, Diminished Responsibility Reconsidered. 1982 Crim.L.R. 809Duff. R.A., Trial and Punishments J.L.S.S. 1986, 31(11), 433Goldstein. A., The insanity Defense (1967)Griew. E., The future of Diminished Responsibility. Crim. L.R. 1988, Feb, 75-87Laurie. G.T., Automatism and Insanity in the Laws of England and Scotland. Jur. Rev. 1995, 3, 253-265Mackay. I., The Sleepwalker is Not Insan e. M.L.R. 1992, 55(5), 714-720Padfield. N.,Exploring a quagmire insanity and automatism. C.L.J. 1989, 48(3), 354-357Royal complaint on Capital Punishment, Cmnd. 8932 (1949-1953)Smith. J.C., Case and Comment. R. v. Hennessy. (1989) 86(9) L.S.G. 41 (1989) 133 S.J. 263 (CA)Smith. K.J.M. & Wilson. W., Impaired Voluntariness and Criminal Responsibility Reworking Harts Theory of Excuses ? The English Judicial Response. O.J.L.S. 1993, 13(1), 69-98Sparks. Diminished Responsibility in theory and Practice (1964) 27 M.L.R 9Virgo. G., Sanitising Insanity ? Sleepwalking and Statutory clear C.L.J. 1991, 50(3), 386-388Cases1. Alphacell 1972 2 All ER 4752. Burgess 1991 2 W.L.R. 106 C.O.A. (Criminal Division)3. Byrne 1960 3 All ER 14. Cooper v. McKenna 1960 Q.L.R 4065. Hennessy (1989) 89 Cr.App.R 10, CA6. Kemp 1956 3 All ER 249 1957 1 Q.B.3997. MNaghtens Case (1843) 10 C & F, 200, 8 Eng. Rep. 718.8. Quick and Paddison 1973 Q.B. 9109. Seers 1985 Crim.L.R, 31510. Sullivan 1984 A.C. 156 (House of Lords)11. Tandy 1988 Crim.L.R 30812. Tolson (1889)Legislation1. Homicide Act. 1957.2. Trial of Lunatics Act 1883