Reforming mental condition defences and procedures in the criminal justice system in light of the Convention on the Rights of Persons with Disabilities

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Noonan, Michael Luke
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University College Cork
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The United Nations Convention on the Rights of Persons with Disabilities (C.R.P.D.) 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 C.R.P.D. was unprecedented, attracting widespread approval from states in all regions, and achieving the highest number of signatories to a U.N. Convention on its opening day. Whilst most of its provisions have been welcomed, the interpretation of several key articles by U.N. bodies has led to some unanticipated issues of compliance with areas of the criminal justice system. It has been argued that the C.R.P.D. requires the abolition of any criminal defence which relieves or mitigates liability because of a disability, and any procedures that declare an accused unfit to be tried based on mental impairment. The relevant mental condition defences for this study provide a defence based on a mental condition caused by an internal factor (insanity, diminished responsibility, and infanticide). No State Party to the C.R.P.D. has shown any inclination to abolish mental condition defences or procedures due to a perception that the interpretations advanced by the U.N. bodies are flawed and unworkable. The summary documents of the drafting process of the treaty show that the potential impact of the C.R.P.D. on criminal justice issues received almost no consideration during negotiations. This means that there has been very little consideration of how criminal law could be reformed in a way that is compliant with the C.R.P.D. As Ireland plans to ratify the Optional Protocol, which permits individuals to complain to the Committee about a C.R.P.D. violation, it is important to conduct a review of domestic law to identify what changes are required. This study establishes that mental condition defences and procedures can be reformed in a way that is C.R.P.D. compliant without the necessity of abolition. To identify whether the existing law requires reform, a normative framework is constructed from principles derived from the C.R.P.D. and used throughout the thesis to improve compliance. The normative framework’s key principle is the prohibition of the deprivation of legal capacity based on a defect in mental capacity. It also provides that determinations of criminal liability which fail to treat persons with disabilities as equals to others are discriminatory and must be abolished. It is determined that the insanity defence could be made compliant with the C.R.P.D. by the creation of several new mental condition defences. 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. The third new defence is for crimes without a subjective mens rea. These offences pose a particular challenge as they do not require moral fault. It is identified that, in exceptional circumstances, other human rights need to take priority and defendants who are incapable of receiving notice about the law because of a psychosocial disability should not be found liable. It is also found that the partial defences of diminished responsibility and infanticide infringe an offender’s right to legal capacity by holding them to a lesser standard of behaviour because of a disability. It is recommended that both defences should be abolished and replaced by discretionary sentencing for murder. Fitness to be tried hearings should be replaced with an assessment of what support is necessary for the accused to participate effectively in the trial.
Criminal law , Insanity , Convention on the Rights of Persons with Disabilities , Mental condition defences , Fit to be tried , Diminished responsibility , Infanticide
Noonan, M. L. 2023. Reforming mental condition defences and procedures in the criminal justice system in light of the Convention on the Rights of Persons with Disabilities. PhD Thesis, University College Cork.
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