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term ‘insanity defence’ refers to permitting the defendant to be not
convicted on the basis that they are ‘criminally insane’ and so they would be
hospitalized or given medical aid instead of being acquitted like other
defendants who are not guilty.’Insanity’ and the ‘disease of the mind’ are cruxes of
the defence. Insanity is proven based on the M’Naghten rule in which the
defendant did not know the “nature and quality of the act”
that he or she was committing or did not know that what they were doing was
wrong. The
term ‘disease of the mind’ is often interpreted differently however in the case
of R v Kemp (1957), Devlin J
stated ”It does not matter … whether the defect of reason is due to a
degeneration of the brain or to some other form of mental derangement. That may
be a matter of importance medically, but it is of no importance to the law,
which merely has to consider the state of mind in which the accused is, not how
he got there.” This signifies that the development of the mental disorders is
irrelevant and only the state of mind in which the defendant was in during the
incident is crucial in the insanity defence.

In my
opinion, the insanity defence should be abolished due to factors such as the
defence being quite unnecessary, unethical and discriminatory. However, others
may argue that it should not be abolished and instead be reformed or keep the
defence the same as it is.

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reason why the insanity defence should be abolished in England and Wales is
that it is unnecessary. In the case of R v Hennessey
(1989) the defendant raised
the automatism defense but the judge ruled that the ‘special defense’ would be
appropriate for his case however the defendant had appealed against his
conviction rather than using the insanity defense.This could
have been due to the fact that being hospitalised does parallel to being convicted
except ,using the insanity defence would mean that Hennessey would have been labelled
as being ‘insane’.  According to the 1991
eight state study commissioned by the National Institute of
Mental Health, the insanity defence is used in less than 1% of all
court cases and it has success rate of 26% which makes the defence quite
as not all defendants use this defence.The majority of defendants who use the insanity defence would be acquitted without it, as they
lack either the mens rea (the intention to commit the crime)or the actus reus(objective element of the crime)to be convicted. There are many
reasons why defendants don’t use this defence frequently – which leads to my
next point.

The insanity defence is discriminatory as it
prevents mentally disabled defendants from being acquitted
similar to how other defendants. Rights such as freedom from detention and
access to equal justice are being infringed as people with mental disabilities
are treated differently and no one would want to be labeled as ”criminally
insane” as insanity is often associated to madness, loss of reason and lunacy
and everyone has the right to be let out if they are proven ‘not guilty’. So,
many would argue that if the criteria is met then the individual should
acquitted like other defendants. If insanity
were abolished, most defendants who might have met its criteria would more
fortunate, as they would now be acquitted via the normal route of seeing
whether there is an mens rea and
actus reus and so they would not be categorised into a group of
”criminally insane” individuals.  Mr Kuby, a Civil Rights lawyer,who
was against the abolishment of the insanity defence, in a debate on nationally-broadcast public
television show stated that 2′
Under our system of justice, we only punish people who know the difference
between right and wrong and people who are capable of making a choice between
right and wrong. For that reason we don’t criminalize small children. Even if a
two year old burns down the whole house, we don’t hold her accountable. For the
same reason, we don’t criminalize the insane.’ Kuby suggests that ‘insane’
individuals should not be ‘accountable’ for their actions as they are often
unaware of their actions when they commit a crime.

Additionally, the insanity defence is highly stigmatising as many would argue that there is a likelihood that the
person who may not be guilty may commit the crime if they are mentally unstable
and so the defendants would be seen by dangerous by individuals of the society
however this is not accurate as only 3% of people with mental
illness are violent meaning that the rest of the people with mental illness are
not violent3. This stigmatises the defendants as not all of them
would commit a crime again e.g. if they did not have the intention to commit
the crime(mens rea) they wouldn’t do the crime again, and using the defence
discriminates them as they are called insane. It would impact the defendant themselves and
their plea, as they would avoid pleading insanity due to the fear of being
stigmatised and marginalised by society. Also people who have diabetes,epilepsy and other health
conditions that are not regarded as the ‘disease of the mind’ would not want to
use the insanity defence for their plea as the health conditions that they have
don’t necessarily affect them mentally and they might have been in a state of
insane automatism while committing the crime.Insane automatism is related to insanity and
so the defendants’ verdict would be ‘not guilty by reason of insanity’. By abolishing this defense people with mental
disorder will experience less stigmatism as there would no ‘special verdict’ to
label accused individuals as being ‘insane’.

Furthermore, the insanity defence
can be argued as unethical as the defence is used by the courts as a way to
detain non-convicted defendants, on the basis of what they could do in the
future if they are released. This is seen as immoral as we cannot assume that a
defendant can go on to commit further crimes if they are released which to the
idea of being stereotypical towards mental illnesses.Defendants should not be
detained on the basis of what they might
do, but instead only on the basis of their crimes that they have
committed. Curtis D. Wilbur stated in his article4
‘ defense of insanity is a trap for
the insane, and a way of escape for the sane’ which shows how the defendants
with mental illnesses can be impacted by the defence as, even if they are not
guilty they can be hospitalised or they could have a restriction order placed
on them meaning that they are ”trapped” similar to how a convicted individual
would be in prison.

Others may argue that the
insanity defence should be kept the same as it is a part of the defendant’s
rights. They should be able to have equal access to justice like other

 There has many debates on the theme of
insanity defence and this can be seen in the debate between advocates Professor
Norval Morris and Professor Richard Bonnie. Morris was the advocate for abolition
whilst Bonnie was the advocate against abolition of the insanity defence. Both
had agreed that ‘the insanity defence is not an efficient device’5
which exemplifies how there are improvements that could be made to the defence. It should be reformed by removing the courts power
of ”disposal” as hospitalisation and treatment of mentally ill should be
dealt by medical services not the judge as the verdict heavily depends on what psychiatrists and other
doctors think and their analysis of the defendants’ mental health. One improvement
that can be made for the insanity defence is that the law should clearly
distinguish what is a ‘disease of the mind’ and physical health condition.

And defendants should
be acquitted normally after proven not guilty and then if needed, the defendant
can have medical treatment or have a restriction order if there are issues
caused by the defendant. If it was to be abolished, there is a likelihood that
it would have negative consequences on the society as the courts might let
potentially dangerous people free and this could affect the wellbeing of the
society and many would argue that the wellbeing of the society is more
important and would outweigh the defendant’s rights. Also, many think that the
defence should be kept but the name of the defence should be changed so then it
is less stigmatising for the defendants and even though the number of people
using this defence is low, there are still individuals using
the defence in England and Wales. This idea was suggested by the Law commission
as they suggested on replacing the term ‘insanity
defense’ with a defense of ‘not guilty due to recognised medical condition’
which is less stigmatising and discriminatory.

In conclusion, I
think that the insanity defence should be abolished as there would be less
stigmatism as people would not be labelled as ‘criminally insane’ and same
rules apply to everyone so no one would be treated differently.

1Lisa A. Callahan, Henry J. Steadman, Margaret A. McGreevy and Pamela Clark Robbins, ‘TheVolume and Characteristics of Insanity Defence Pleas: An Eight-State
of the American Academy of Psychiatry, Vol. 19, Issue No. 4, (1991).

DebatesDebates #110, Warren Steibel (Producer and Director), HBO Studios,
“Should The Insanity Defense Be Abolished?”- Transcript (August 26,

foundation, ‘Stereotypes about people with mental illnesses'(2017)

4 Curtis D. Wilbur,
‘Should the insanity defence to criminal charge be abolished?’ , Vol. 8, No. 10 (October, 1922),
page. 631, American Bar Association Journal

Morris , Richard Bonnie ,Law Joel J. Finer, Cleveland State University, ‘Should
the Insanity Defense be Abolished – An Introduction to the Debate'(1986)


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