Reforming the insanity defence in Ireland to comply with the Convention on the Rights of Persons with Disabilities

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is the first human rights treaty of this century. It aims to ensure that persons with disabilities have full and effective inclusion in society and are not the subjects of discrimination. Support for the CRPD was unprecedented, attracting widespread approval from states in all regions, and achieving the highest number of signatories to a UN Convention on its opening day.

Whilst most of its provisions have been welcomed, the interpretation of several key articles by UN bodies has led to some unanticipated issues of compliance with areas of the criminal justice system. In particular, it has been argued that the CRPD requires the abolition of any criminal defence which relieves or mitigates liability because of a disability. The relevant mental condition defence focused on in this article is the insanity defence.

No State Party to the CRPD has shown any inclination to abolish the insanity defence due to a perception that the interpretations advanced by the UN bodies are flawed and unworkable. This article establishes that the insanity defence can be reformed in a way that is CRPD compliant without the necessity of abolition. It is proposed that the cognitive limb of insanity should be replaced by a legal rule which allows for evidence of a psychosocial disability to negate mens rea. The evaluative and volitional limbs should be replaced with a new defence which focuses on the defendant's ability to generate alternative choices.