Capacity

M’Naughten rules:

• Defect of reason

• Caused by a disease of the mind

• D did not know the nature/quality of act or that it was legally wrong

Insanity includes:

• Epilepsy (Sullivan)- authority for disease of mind

• Diabetes/hyperglycemia (Hennesy)

• Sleepwalking (Burgess)

• Effects of a tumor (Kemp)

Law commission suggests:

• Abolish insanity, replace with new defence based on lack of capacity ‘not criminally responsible by reason of a recognised mental condition’

• Get rid of internal/external factors

Criticism of insanity:

• Outdated and confuses legal v medical insanity

• Leads to hospitalisation where D poses no threat/incarceration where D needs medical help:

  • Windle, '“I suppose they’ll hang me for this” liable as he knew it was wrong; test narrow as he had psychiatric problems

  • Hennessy, not taken insulin & drove disorientated, he posed no real threat but was hospitalised

Automatism:

• Total acquittal, external factor, total loss of control

• “Not just zoning out” (Hill v Baxter)

• PTSD from rape, external (R v T)

• Hypoglycemia, insulin as external (Quick)

Basic intent crimes:

• Recklessness/negligence= basic

Mistakes:

• Those which prevent D from forming MR negate liability

• E.g. shooting a bird and accidentally shoot a person stood near it

Voluntary intoxication:

• O’conner: if drunk and made mistaken belief, cannot plead defence

• Majewski: intoxication in itself is reckless as they are recognising they may behave in an irregular way, thus forming MR for basic intent offences

Involuntary intoxication:

• Can use intoxication as a defence if they were unable to form MR

• Kingston: paedophie spiked, committed assault but still had intent

Intoxication criticism:

• Wy does recklessness in becoming intoxicated substitute to recklessness in committing offence?

• Highly intoxicated D who didn’t foresee their actions is punished for foresight they didn’t have

• Discriminates against addicts

• Kingston: even involuntary intox doesn’t absolve liability but:

  • Argument this is in public interest

Law Commission 2009 proposals for intoc:

• Replace specific/basic with:

  • Crimes requiring purpose: intox negate MR

  • Crimes allowing recklessness: intox not defence

• Shift away from Majewski and focus on whether D actually formed MR