English Law Commission Project on Defences of Insanity and Automatism

The Law Commission of England has published what it calls a scoping paper on insanity and automatism:

"When should a person not be criminally liable because of their mental condition at the time they committed an alleged offence? This is the question posed by what is called the defence of 'insanity'. "

"Similarly, a person might not be criminally liable because they lacked conscious control of their actions at the time of committing the alleged offence for a reason other than their mental condition. This might amount to a defence of 'sane automatis'" under the current law."

"The current rules that govern the insanity defence (also referred to as 'insane automatism') date from 1843. They have been widely criticised for a number of reasons: 

• it is not clear whether the defence of insanity is even available in all cases
  
• the law lags behind psychiatric understanding, and this partly explains why, in practice, the defence is underused and medical professionals do not apply the correct legal test
  
• the label of “insane” is outdated as a description of those with mental illness, and simply wrong as regards those who have learning disabilities or learning difficulties, or those with epilepsy
  
• the case law on insane and non-insane automatism is incoherent and produces results that run counter to common-sense (...)"

"When we have considered the responses to this scoping paper we will consider how best to take the project forward to ensure that the law in practice is fit for purpose in the 21st century and reflects the changing approach to people with mental illness."

The accompanying material looks at the situation of the law in England and Wales as well as in other jurisdictions, such as Australia, New Zealand, Canada, Ireland, Hong Kong, India, the US, Scotland, South Africa and Northern Ireland.