Arguments for the abolition of the defence of mental impairment

Abstract

This article summarises arguments for abolishing the mental impairment defence, using the example of the defence in Victoria, taking a historical and comparative approach. It considers the defence in practice, its origins and stagnation in medieval and Victorian England, a better approach based on modern developments in the UK and Europe, its resistance to meaningful reform, and its failure to achieve its laudable, humane and principled aim of sparing vulnerable people with severe mental health problems from punishment. We conclude that the only way to actually achieve this aim is to abolish the mental impairment defence and replace it with an approach that allows for flexible mental health disposals for mentally disordered offenders based on clinical needs and, where necessary, the need for containment, incorporated in and aligned with mental health legislation, regardless of culpability, and with modern systems and services that bring Victoria out of the nineteenth century.

Key words:

• criminal law principles
• criminal responsibility
• mental impairment defence
• mentally disordered offenders

Ethical standards

Declaration of conflicts of interest

Author Rajan Darjee has declared no conflicts of interest

Author Tim Marsh has declared no conflicts of interest

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors. It analyses existing literature and did not involve the collection of new data.

Notes

1 Technically arson in the royal dockyards, espionage and piracy with violence remained capital offences, but unlike murder and treason the death penalty was not a mandatory sentence, and no executions for them occurred after the nineteenth century.

2 Scotland is a good jurisdiction to compare Victoria to, as it has a similar-sized population (5.5 million in Scotland and 6.3 million in Victoria in 2019), similar crime rates (about 60 homicides a year in Scotland and 50 a year in Victoria over the last decade) and the same rates of serious mental disorders (for example, the prevalence of schizophrenia is about 5 per 1000 people in Australia and in the UK).