#3591 - Capacity Defences - Criminal Law

• These are generally treated as excuses. They deny MR entirely, essentially claiming that D was not morally in control of his actions.

INFANCY

• The age of criminal responsibility in England is 10. Children under the age of 10 are incapable of committing crimes (known as doli incapax).

• There used to be a rebuttable presumption that children under 14 were doli incapax, but this was removed by Crime and Disorder Act 1998 (position clarified in T).

• England has been criticised for its relatively high age of criminal responsibility. In Scotland it is 12, France 13 and Spain 16.

• Note that when a person has a child commit a crime for them, the child is treated as an innocent agent and the person procuring the offence will be found guilty of the offence proper.

• Both Keating and Lord Steyn have expressed concern that the UK’s stance on the age of criminal responsibility may breach Art 40.1 of UN Convention of the Rights of the Child.

NON-INSANE AUTOMATISM

• The extent of this defence is limited to situations in which D has acted in a manner out of his control, caused by external factors. Lord Denning said that its use should be restricted to acts done while ‘unconscious, and to spasms, reflex actions and convulsions’.

• Note that the loss of control must be complete.

• LEADING CASE: AG’s Ref. 2 of ’92 – D was a lorry driver who was driving for a long period of time. He entered a trance-like state, swerved onto the hard shoulder and then swerved back onto the road. Because he swerved back, it showed that he retained a certain degree of control – the defence requires complete loss of control.

• Self-induced states of automatism will not provide a defence – Bailey.

INSANITY/INSANE AUTOMATISM

• Note that insanity is relevant in two contexts: as a substantive defence, but also with regard to fitness to plead/stand trial.

Fitness to plead:

• Rule laid down in Criminal Procedure (Insanity) Act 1964. Note that D may be detained under the Mental Health Act 1983 if found unfit to plead. It may, however, result in a supervision order or an absolute discharge.

• The leading case is Pritchard, in which is was established that D must be ‘of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence, to challenge a juror to whom he may wish to object and comprehend the details of evidence.”

• The burden of proof is on the person who raises the insanity issue.

Substantive defence:

• The defence is hazy in terms of its boundaries. Note that often a successful insanity plea will result in detention under the Mental Health Act 1983, but this is not necessarily the case.

• The M’Naghten rules are the authoritative criteria by which eligibility for the insanity defence is judged. There is a general presumption that everyone is sane, and the M’Naghten rules are used to disprove sanity. They are as follows:

  • D was suffering from a defect of reason

  • The defect of reason emanated from a disease of the mind

  • It resulted in D being unaware of the nature or quality of his act OR if he was aware of the nature/quality, he did not know that his act was wrong.

• While the rules may seem clear, many of the terms are loose, and the exact scope of the extent has not been clearly defined. In many way is has been treated on a case by case basis (not great for legal certainty):

  • ‘defect of reason’:

    • Clarke – the cessation of a relevant deliberative favulty for however brief a period.

  • ‘disease of the mind’ has been subject to many interpretations:

    • Kemp – anything affecting faculties of memory, reason, or understanding.

    • Sullivan – controversial case where D injured someone while thrashing during an epileptic fit. This was branded insanity.

    • Quick – D went into diabetic hypoglaecemia. D was not insane because his condition was caused by external factors – lack of food and insulin he had taken.

    • Hennessy – the flip side of Quick. D didn’t take his insulin. Because this was an internal factor, he was granted the insanity defence. Hennessy and Quick cannot be reconciled.

    • Burgess – sleepwalking was found to be a disease of the mind. Bizarre broadening of the insanity defence. Raises the question (along with Sullivan) of whether the defence needs to be renamed.

  • nature/wrongness of act:

    • Lord Diplock explains what is meant by this in Sullivan.

    • Criticism was attracted in the case of Windale, when D had his insanity defence taken away for commenting that ‘I suppose they will hang me for this’. There was clear appreciation of the legal wrongness, but many argue that knowledge of moral wrongness is what should really be considered (see the Butler Report).

• Theory/criticism:

  • Mackay and Mitchell suggest getting rid of the distinction between internal and external factors, allowing the reconciliation of Quick and Hennessy. They point to the Canadian system, which takes a more holistic approach (see the case of Stone).

  • Lord Devlin accepted the ‘disease of the mind’ aspect of the defence is very broad, but defends it on the basis that the third...