Crime CLX-Insanity XVII

For those of you who are wondering why the defendant would rather be found not guilty by way of automatism instead of not guilty by way of insanity (see R v Kemp (1957), R v Sullivan (1983), R v Hennessy (1989), R v Burgess (1991) and R v Johnson (2007)), the answer is because, if the defendant is found not guilty by way of insanity he or she may have to spend some time in a mental institution (a secure detention facility) as per s.5 of the Criminal Procedure (Insanity) Act 1964.

Whereas, if the defendant is found not guilty by way of automatism, he or she is absolved of all criminal charges and the judge is not empowered to detain the defendant in a mental institution. Therefore, whether the defendant is found not guilty by way of insanity or not guilty by way of automatism becomes crucial, to the defendant, during sentencing.

S.5 of the Criminal Procedure (Insanity) Act 1964 reads as follows:-

Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.

(1) This section applies where—

(a) A special verdict is returned that the accused is not guilty by reason of insanity; or

(b) Findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.

(2) The court shall make in respect of the accused—

(a) Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.

(1)This section applies where—

(a) A special verdict is returned that the accused is not guilty by reason of insanity; or

(b) Findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.

(2)The court shall make in respect of the accused—

(a) A hospital order (with or without a restriction order);

(b) A supervision order; or

(c) An order for his absolute discharge.

(3) Where—

(a) The offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and

(b) The court have power to make a hospital order,

The court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) In this section—

  • “hospital order” has the meaning given in section 37 of the Mental Health Act 1983;

  • “restriction order” has the meaning given to it by section 41 of that Act;

  • “Supervision order” has the meaning given in Part 1 of Schedule 1A to this Act.

A hospital order (with or without a restriction order);

(b) A supervision order; or

(c) An order for his absolute discharge.

(3) Where—

(a) The offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and

(b) The court have power to make a hospital order,

The court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

Copyright © 2018 by Dyarne Ward

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