Redefining insanity : bringing the insanity plea into the 21st century

Abstract

In criminal law, certain prerequisites must coexist for an offence to have been committed. Firstly, the actus reus must occur, which is, the action that gives rise to the criminal activity as committed by the accused. The mens rea is also an indispensable prerequisite. This refers to the accused’s criminal intent to commit the act. In the event of an offence being committed by someone suffering from ‘legal insanity’, the mens rea is flawed. Therefore, the defence of legal insanity allows individuals to be exempt from criminal responsibility if ‘legal insanity’ at the moment of an offence is proven. This begs the question, what is ‘legal insanity’? The notion is of a purely legal nature and its interpretation varies significantly in different jurisdictions. Currently, the Maltese Criminal Code does not expressly define insanity, but Common Law influences and works from criminal theorists such as Sir Anthony Mamo have led to the understanding that ‘legal insanity’ refers to a ‘disease of the mind’1 that eliminated the accused’s capacity to know the nature of their act. The features of said disease are not elaborated upon, however. Consequently, Malta exemplifies one of the most restrictive interpretations in Europe. This thesis will explore the possibility of expansion of legal insanity under Maltese Law by analysing the current system with an understanding of the history and development of the defence. It will highlight the issues in the Maltese approach and compare and contrast the local system to other foreign jurisdictions. Finally, arguments will be presented for the introduction of diminished responsibility to cater for the mentally ill and intellectually disabled, who do not satisfy the conditions for legal insanity as it stands. To conclude, suggestions in respect of the above will be made to revive the antiquated defence and bring it into the 21st century.