The law on mental health needs clarifying, says QC

Professor Gerry Maher QC has told a conference at Northumbria Law School that law reforms in the UK need to address the issues surrounding criminal defences based on mental disorder.

Speaking on Mental Health Day, professor Maher QC, who is a Professor of Criminal Law at the University of Edinburgh, expressed his desire to see more clarification in the law and will soon present a paper which will explore the relationship between automatism and insanity.

Maher QC commented: "In its 2013 discussion paper, the Law Commission suggested that the relationship between the defences of insanity and automatism should be rationalised and reformed into what would in effect be one defence. Yet, in an earlier survey of Scots law, the Scottish Law Commission considered that the defences are, and should continue to be, entirely separate."

He continued: "I think it's important to consider various models of the relationship between the automatism and insanity. I believe that the contrast between the approaches of 'one defence' and 'separate defences' is too extreme and fails to capture the extent of similarities and dissimilarities which the defences involve.

"For me, clarifying criminal defences based on mental disorder is part of the unfinished business of law reform in the UK."

Maher will be speaking further about his research on 12 November which is expected to draw delegates from across the law profession, including lawyers, judges, barristers and academics. The seminar is a follow-up to a conference that the Northumbria Law School held in 2013 which discussed how defences of insanity and automatism was working in England and Wales.

Conclusions reached at the event were submitted to the Law Commission with delegates agreeing that the defences are in desperate need of reform.

The seminar also found a stigma issue with practitioners who find it difficult to approach the subject with clients as many would prefer to serve prison time rather than risk being admitted to hospital indefinitely.

Nicola Wake, senior lecturer of law at Northumbria University and convenor for the Criminal Justice Section of the Society of Legal Scholars, said: "Our last event provoked interesting discussion amongst delegates and everyone seemed to agree it's essential that any reforms to the insanity defence are informed by current work that is on-going in relation to unfitness to plead.

"The Law Commission issued a discussion paper on insanity, automatism and intoxication last year and is currently reviewing the law on unfitness to plead - the law is clearly in need of reform and this event provides an important platform for debate and discussion."