F3.8 – Exception in Case of Defence of Insanity

Question 1

(i) If the accused raises the defence of insanity, who bears the burden of proving it?

(ii) On what standard of proof?

Answer 1

(i) the accused.

(ii) on a balance of probabilities.

(M’Naghtens Case (1843) 10 Cl & F 200; Smith (Oliver) (1910) 6 Cr App R 19; Sodeman v The King [1936] 2 All ER 1138).

Question 2

Under s6 of the Criminal Procedure (Insanity) Act 1964, if the accused is charged with murder and raises either the issue of insanity or diminished responsibility, what shall the court allow?

Answer 2

The prosecution to adduce evidence tending to prove the other of those issues.

The burden on the prosecution will be to prove the other of those issues beyond reasonable doubt (Grant [1960] Crim LR 424, per Paul J).

Question 3

If the accused is alleged to be under a disability rendering the accused unfit to plead and stand trial on indictment, who may raise the issue?

Answer 3

Either the prosecution or defence.

(see the Criminal Procedure (Insanity) Act 1964, s. 4, and generally D12.2 et seq.).

Question 4

If the prosecution contend that the accused is under a disability rendering the accused unfit to plead and stand trial on indictment and this is disputed by the defence:

(i) who bears the burden of proof?

(ii) what is the standard of proof?

Answer 4

(i) the prosecution

(ii) satisfy the court beyond a reasonable doubt (Robertson [1968] 3 All ER 557).

Question 5

If the defence contend that the accused is under a disability rendering the accused unfit to plead and stand trial on indictment and this is disputed by the prosecution:

(i) who bears the burden of proof?

(ii) what is the standard of proof?

Answer 5

(i) the defence

(ii) balance of probabilities (Podola [1960] 1 QB 325).