Insanity and blaming the mentally ill - a critique of the prior fault principle in the Law Commission’s discussion paper

In 2013, the Law Commission published important provisional proposals for replacing the current insanity defence with a new special verdict of “not criminally responsible by reason of recognised medical condition”. Despite the passage of time, the proposals are an important starting point for reforming the defence of insanity. One proposal was that the new verdict, unlike the current defence, should be subject to the prior fault principle. This article takes issue with that proposal. We argue that introducing fault and blame into mental illness is unwarranted. We conclude that instead the focus should be on strengthening the disposals available following the special verdict to ensure that suitable help and support is provided while at the same time enhancing public protection by providing that those who reject the support offered may face the prospect of adverse consequences.