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Criminal Law: "A critical discussion of the defence of Insanity"

Criminal Law: "A critical discussion of the defence of Insanity"

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An essay for the 2012 Undergraduate Awards Competition by Nathan Carney. Originally submitted for Civil Law at None, with lecturer Ms. Sinead Ring in the category of Law
An essay for the 2012 Undergraduate Awards Competition by Nathan Carney. Originally submitted for Civil Law at None, with lecturer Ms. Sinead Ring in the category of Law

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Published by: Undergraduate Awards on Aug 30, 2012
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03/27/2014

 
Abstract:
The dissertation which I have personally written and have chosen to put forwardfor consideration by The Undergraduate Awards revolves around an area of law whichunequivocally fascinates me. For some time I have had an unquenchable thirst to study thearea of Criminal Law, and so when given the honour of not only reading Law at University,but to undertake an essay pertaining to the field of Criminal Law as part of my coursecurriculum, I seized the opportunity.
 
My essay relates to the Defence of Insanity under Criminal Law, entitled; “
 A critical 
discussion of the defence of Insanity” 
.In the essay I have written, I have placed considerable emphasis on how the law has evolvedover time, by reference to both the Common Law and Statutory positions. I feel that whilethe paper exhibits great complexity, it gives a conclusive analysis on how different factorsinfluence the defence, such as how a jury may prejudice the fair hearing of an individual ontrial, who raises the defence. By this I mean that there is a certain stigma attached to the
idea of ‘insanity’, and so it is difficult even in modern times to successfully raise the issue of 
Insanity as a Criminal Law defence. This naturally prompted me to question whether or notthe law needs to be altered.I mentioned previously that I examined how the law on Insanity has evolved over time. Thisis a particular pertinent and engrossing factor in the field of law under discussion. If one
considers the escapades which ensue during the 1975 film One Flew Over The Cuckoo’s Nestwhich starred Jack Nicholson taking up residence in a “mental institution”, we can blata
ntlysee how our society has advanced since then through the development of science and achanging perspective on Mental Health. The welfare of those who offend and successfullyraise the offence of Insanity is now considered high priority. Such offenders are notsubjected to a prison sentence but rather to a rehabilitation programme monitored by thecourts, and this is a major benefit of the law on Insanity. This is a point which I have pursuedin my essay through the citation of various Common Law, Statutory and Academic stances.In conclusion, with extensive reference to academic commentary, the dissertation I havewritten consults the ways in which the law in this area may be further developed and/orchanged for the greater good, as well as how it has evolved over time. I have endeavouredto make this essay worthy of accreditation. Exclusive of the bibliography but inclusive of thefootnotes, the total word count of the essay is 5,384. The paper has been examined andassessed by a University Criminal Law lecturer and I have been awarded a First Class HonourGrade 1 for my endeavours.I would like to take this opportunity to sincerely thank you for considering my dissertationfor The Undergraduate Awards 2012.
Essay:
The Criminal Law (Insanity) Bill 2002 was brought before the Oireachtas on Dec 10
th
 2002 in Seanad Éireann. The main objective of the bill is
to amend the law relating to the
 
Criminal Law Essay on the Insanity Defence Page 2
trial and detention of persons suffering from mental disorders who are charged with offencesor found not guilty by r 
eason of insanity”
1
.
The Defence of Insanity carries with it greatpertinence in the area of Criminal Law. This essay will focus on the various aspects of theInsanity defence, such as when it is appropriate to raise the defence, how it impacts on thelaw, the advantages and disadvantages of being able to afford the defence to offenders, aswell as how the area of law may be in need of further development and perhaps reform. Thedefence of Insanity has been the subject of considerable academic commentary, the authors of which provide interesting perspectives and thought provoking questions. This particular areaof law is governed by Legislation and Case Law, both of which deserve equal considerationat this point in time. This is the first example of where there is conflict within the defence of Insanity and will be discussed further on. It may be said without fear of contradiction that themain aspiration of the courts is to protect individuals who offend and would face criminalprosecution if it were not for the fact that they did not have the mental capacity to be heldresponsible for a crime because of a mental disorder. McAuley and McCutcheon
2
comparethe defence with the actions of a child. Under Irish law a child will not be penalised in thesame manner as an adult because of their mental capacity being much less. These authorshighlight the distinction between Insanity and Automatism as defences. They write that theaccused qualifies for the automatism defence
“where his bodily actions are produced by aconvulsion, spasm, concussive blow to the head or an attack by a swarm of bees”
3
but that
“where the defendant’s inability to choose or control his conduct is due to m
ental impairment 
the defence of insanity arises”
4
. As is stated quite succinctly by Liz Campbell
5
andcolleagues;
“The primary reason that defences exist is fairness. It is a fundamental theory of 
1
The Bar Council of Ireland,
The Criminal Law (Insanity) Bill 
2
Finbarr McAuley & J. Paul McCutcheon,
Criminal Liability 
(Roundhall, Dublin: 2000)
3
Ibid 635
4
Ibid 635
5
 
Liz Campbell, Shane Kilcommins & Catherine O’ Sullivan,
Criminal Law in Ireland, Cases and Commentary 
(Clarus Press, Dublin: 2010)
 
Criminal Law Essay on the Insanity Defence Page 3
criminal law that a person should only be punished if he meets all of the actus reus and mens
rea elements of the offence…actus non facit reum nisi mens sit rea maxim”
.Th
e Criminal Law (Insanity) Act 2006 (“the 2006 Act”) is the prevailing legislation in thearea of Insanity, but as will be demonstrated, the Mental Health Act 2001 (“the MH Act”)
bears a certain degree of significance when discussing Insanity. The 2006 Act was enacted on12
th
April 2006 and came into force on 1
st
June 2006. Hanley highlights the three forms of Insanity which arise in Irish law pursuant to legislation. The first of these refers to the mentalstate of the accused at the time s/he commits the offence. Where it emerges that the accusedwas insane at that time, s/he will be
declared ‘not guilty by reason of insanity’. The secondform of Insanity surfaces when the individual accused of the crime in question is ‘insane’ at
the time the case is being heard in court
. At this point an ‘unfit to be tried plea’ is
invoked.The final form of Insanity arises under Section 6 of the 2006 Act where the accused ischarged with the offence of murder, but was insane at the time of the illegal act. When this
happens, s/he may have their murder charge “
reduced to manslaughter 
 
on grounds of diminished responsibilit 
 y”
. This provision of the statute is intriguing because it underlines
and accepts that there are varying degrees of mental disorder but that no person’s level of 
neurosis may be so elevated as to warrant him/her an absolute defence to a killing. Section 1
of the 2006 Act talks about a ‘Mental Disorder’, which is the term used to describe
thethreshold the accused must meet so as to qualify for the defence of Insanity. As per thelegislation, a Mental Disorder
“includes
 
mental illness, mental disability, dementia or any
disease of the mind but does not include intoxication”
8
. As Campbell and her co authorspoints out, the 2006 Act gives a narrow interpretation of what amounts to a mental disorderand therefore the Mental Health Act 2001 has been consulted because
it defines ‘mental
6
Ibid 875
7
Ibid 993
8
Criminal Law (Insanity) Act 2006 S.1

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