Absence of Choice: Reforming the Insanity Defence

Article 12 of the Convention on the Rights of Persons with Disabilities protects the legal capacity of a person with a disability. This article has been interpreted to require the abolition of any criminal defence which negates responsibility based on a mental disorder, such as the insanity defence. The proposed abolition of the insanity defence is a radical departure from the criminal law’s traditional approach to criminal responsibility and has thus far been resisted or ignored by States Parties. This paper will consider whether it is possible to modify the insanity defence to achieve the aims of the C.R.P.D. without the necessity of abolition. It will be argued that defence could be compliant with Article 12 by replacing the evaluative and volitional limbs (where a jurisdiction has a volitional limb) with an excuse that focuses on the defendant’s ability to generate alternative choices. It will also be noted that the ability to raise the defence must be limited to the defendant, and the defence must be precluded in circumstances where there has been moral fault. This research is funded by the Irish Research Council's Government of Ireland Postgraduate Scholarship.