Dsouza, Mark; Ormerod, David; (2023) Reforming the insanity defence in England and Wales. In: Mackay, Ronnie and Brookbanks, Warren, (eds.) The insanity defence: international and comparative perspectives. Oxford University Press: Oxford, UK. (In press).

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Abstract

English law’s insanity defence has been subjected to sustained and cogent criticism. It is outdated in its understanding of psychiatry and was devised for trial procedures that are unrecognizable to those familiar with modern day practice. The defence is little used but has generated a disproportionate number of appeals. It creates arbitrary distinctions in application by its requirement for a ‘disease of the mind’, and its relationship with sane automatism and pleas based on intoxication is complex and incoherent. Controversially it imposes a legal burden of proof on the defendant. The scope for reform is obvious. With an increasingly enlightened attitude to mental health issues in the criminal justice system, there is an opportunity for law reform to create a defence which deals fairly and equitably with mentally disordered offenders. The Law Commission for England and Wales—whose statutory function is to ensure that the law is as fair, modern, and simple as possible—examined the defence and prepared a discussion paper tentatively proposing a new defence for someone ‘not criminally responsible by reason of medical condition’. This chapter explores the Commission’s work and assesses the prospects for further reform and legislation.

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