The Insanity Defence: Is It Still Fit for Purpose?

The M'Naghten Rules formulated in 1843 have provided the basis for the insanity defence in many Western countries, including New Zealand. Although many candidates for the insanity defence experience psychosis, the principal determining factor is whether they knew their criminal act was morally wrong, a difficult metaethical judgement. In New Zealand the advent of methamphetamine abuse has created a significant challenge for forensic assessors in differentiating between mental disease and chronic intoxication, raising the question of whether the insanity defence as currently formulated is fit for purpose in assessing criminal culpability in such cases. The article explores this problem through an examination of a number of leading cases, noting the variable character of expert testimony on insanity where methamphetamine is involved. The article then examines the question of whether evidence of mental states falling short of insanity may be utilised to support a palliative claim reducing murder to manslaughter. A tentative new approach invites consideration of allowing investigation of insanity in cases involving meth-induced paranoia, whether or not the threshold of disease of the mind is met. In the concluding sections the article examines the impact of developments in cognitive neuroscience and asks whether neuroscience can help in determining criminal responsibility and whether it supports a "control limb" in a reformulated insanity defence. The article concludes with a brief discussion of mental disorder and impulsive aggression

Sexual Predators, Extended Supervision, and Preventive Social Control: Risk Management Under the Spotlight

The purpose of this article is to assess the legitimacy of the preventive detention model represented by New Zealand's Parole (Extended Supervision) Amendment Act 2004 in light of the legislative response to sex offenders in other jurisdictions, notably the United States and England. It is argued that the growing legislative practice of imposing administrative detention post-sentence represents a dangerous trend in criminal justice and disguises a largely undeclared agenda to isolate and demonise sex offenders as a class. It also has implications for other offender groups who may be targeted because the particular class is perceived as presenting a particular type of risk. Since the empowering legislation is often passed in haste and without due consideration of its long term impacts, it bears the hallmarks of a pre-reflective, “at least we’re doing something,” response to the problem of sex offending. It also provides a context for pretextual and sanist judicial values to operate, permitting distorted and illinformed judicial decision-making, particularly where judges’ thinking is infected by populist punitive approaches. Invariably, such legislation and the policy surrounding it, fails completely to address fundamental causal patterns underlying sex offending phenomena.It is suggested that in order to address these phenomena squarely, it will be necessary to abandon the current tendency towards isolating sex offenders and refocus our energy on traditional responses of retribution, reform and rehabilitation within conventional principles of criminal process

Doctors are aggrieved – should they be? Gross negligence manslaughter and the culpable doctor.

Doctors may also be criminals. Mercifully, this is a rare event but no health professional is infallible, mistakes happen and the challenge is to distinguish inadvertence from wilful disregard for the consequences. Healthcare professionals are uneasy about the readiness of the current law to attribute criminal responsibility accompanied by a failure to recognise the highly pressurised context in which sub-standard practice occurs. This article argues that the offence of gross negligence manslaughter is improperly defined and fails to target those doctors whom society should criminalise. Alternatives to gross negligence manslaughter to include culpable homicide adopted in Scotland and the major departure test favoured by New Zealand are considered before advocating a more radical approach—the sliding scale of negligence. Using existing tests in civil and administrative law, a more objective test of gross negligence is proposed, with culpability as a mandatory requirement for a doctor to be convicted of a crime. It is contended the law must move away from the stance a patient’s death is required for medical negligence to become a crime, an outcome bias, to a conduct biased offence. There is no underlying reason why culpable gross negligence causing serious harm should not also be subject to criminal sanction. The recent sentencing guidelines demonstrate the law is sophisticated enough to distinguish reprehensible conduct from careless behaviour. It is now time for the legal test to also acknowledge all the circumstances of the alleged crime

Fitness to Plead - International and Comparative Perspectives

An edited collection which discusses fitness to plead from a comparative and international perspective dealing with a range of different jurisdictions

The Insanity Defence - International and Comparative Perspectives

Compares the theory and practice of the insanity defence in a wide variety of common law and civil law jurisdictions, including England, Wales, Scotland, Germany, France, the Netherlands, Norway, Australia, New Zealand, China, Canada, and the United States of Americ

Legal insanity in The Netherlands: Regulations and reflections

This chapter discusses the characteristics of the insanity defence in the Dutch criminal justice system. In the Netherlands, a state with a moderately inquisitorial system, insanity evaluations can be ordered by the prosecution or by the court. In only a small minority of cases is the defence raised by the defendant. A first characteristic of the Dutch insanity defence is that there is no legal criterion specifying the conditions under which the presence of a mental illness substantiates an insanity plea. This is different from other legal systems, where the criteria for insanity are usually specified—an example is the M’Naghten Rule in Anglo-American jurisdictions. A second characteristic is that, while many jurisdictions use the dichotomy ‘sane’ versus ‘insane’, in the Netherlands three levels of criminal responsibility are used: responsibility, diminished responsibility, and (complete) insanity. A third characteristic concerns the fact that forensic psychiatrists and psychologists must render an explicit opinion about the defendant's (degree of) criminal responsibility (in the absence of a legal criterion for insanity). These three features of the Dutch system remain a topic of debate. This chapter discusses the Dutch regulations and case law, together with relevant practical problems and scholarly reflections

Therapeutic jurisprudence : implications for judging (1) <Translation>

ここに訳出するのは、ニュージーランド・オークランド大学ロースクールのウォーレン・ブルックバンクス教授による論文(Warren Brookbanks, Therapeutic jurisprudence: implications for judging, The New Zealand Law Journal, December 2003, pp463-472)である。同論文は、ロトルアで行われた地方裁判官会議(District Court Judges' Conference)におけるブッルクバンクス教授の講演の原稿をもとに加筆修正し、 The New Zealand Law Journal (LexisNexis)に掲載したものである。本訳稿は、ブルックバンクス教授の了解を得て、これを訳出したものである