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quency with which they are coming into contact with the criminal justice system, modern criminal law should be informed by modern science, and in particular by modern psychiatric thinking.

The problems with the existing law are many and serious. The current test for determining fitness to plead dates from 1836 and the current rules for determining legal insanity date from 1842. In those days, the science of psychiatry was in its infancy.

The application of these antiquated rules is becoming increasingly difficult and artificial. For example, the key concept of 'disease of the mind' has no agreed psychiatric meaning. As interpreted by the courts, it has even come to include conditions that are not mental disorders, such as epilepsy and diabetes. The stringent test of capacity for the purposes of fitness to plead also needs to be reconsidered and should be contrasted with the much wider test contained in the Mental Capacity Act 2005.

The Criminal Law Revision Committee and the Committee on Mentally Abnormal Offenders 1975 (the Butler Committee) suggested a verdict of ‘not guilty on evidence of mental disorder’ to avoid the stigma of insanity. They suggested this defence could apply where there was evidence the accused was suffering from one of a range of mental illnesses or abnormalities when he committed the actus reus of the offence even though he showed no evidence of having formulated the mens rea of that offence.

3. PROPOSALS FOR REFORM

The Butler Committee on Mentally Abnormal Offenders reported in 1975 that major reform was necessary. The Report recommended the introduction of a new verdict of 'not guilty by reason of mental disorder' which could be returned in two situations: a) where the defendant was unable to form the requisite mens rea due to mental disorder; or

b) where the defendant was aware of his actions but was at the time suffering from severe mental disorder.

proposals for reform made by the Butler Committee. Clauses 35 and 36 of the draft code bill detail the two circumstances in which the proposed mental disorder verdict would be returned: (i) where all the elements of the offence are proved but the mental disorder nevertheless should result in an acquittal (corresponding to the 'wrong' limb), and (ii) where the mental disorder precludes the required fault (corresponding to the 'nature and quality' limb).

Clause 35 provides:

'(1) A mental disorder verdict shall be returned if the defendant is proved to have committed an offence but it is proved on the balance of probabilities (whether by the prosecution or by the defendant) that he was at the time suffering from severe mental illness or severe mental handicap.

(2) Subsection (1) does not apply if the court or jury is satisfied beyond reasonable doubt that the offence was not attributable to the severe mental illness or severe mental handicap.'

Clause 36 seeks to provide for the defendant who, through mental disorder, acts without the requisite fault element. It states:

'A mental disorder verdict shall be returned if- (a) the defendant is acquitted of an offence only because, by reason of evidence of mental disorder or a combination of mental disorder and intoxication, it is found that he acted or may have acted in a state of automatism, or without the fault required