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Gun Control
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Americans are faced with an ever-growing problem of violence. Our streets have become a battleground where the elderly are beaten for their social security checks, where terrified women are viciously attacked and raped, where teen-age gangsters shoot it out for a patch of turf to sell their illegal drugs, and where innocent children are caught daily in the crossfire of drive-by shootings. We cannot ignore the damage that these criminals are doing to our society, and we must take actions to stop these horrors. However, the effort by some misguided individuals to eliminate the legal ownership of firearms does not...
people who respect the law itself, the people who would only use firearms for legal purposes anyway. And when we give people the right to defend themselves, we find that criminals start looking for other victims out of fear that they will become the victims themselves. We must work to reduce crime in America, but we should look at the problem realistically, and develop plans that would be effective. It is obvious that gun control laws are neither realistic, nor effective in reducing crime. Therefore, we must direct our efforts toward controlling crime, not controlling legal ownership of firearms.
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It has been well-established feature of...It has been well-established feature of the English legal system that rules of criminal law are addressed to rational and responsible persons who have the capacity to control their actions and understand and comply with rules. Persons lacking such capacity should not be held criminally culpable even if some wrong may have been done, as it is believed that they are "sick rather than evil." It is from this central concept that the defences of Insanity and, to some extent, Diminished Responsibility derive. Whilst the latter was more recently established by the Homicide Act in 1957, Insanity is stems from an 1843 common law authority and has perpetually been at the centre of controversy. Although in principle it plays an important role in both protecting interests of mentally disordered by providing means for their treatment and protecting public interests in subjecting such dangerous persons to restraint, the lack of clarity over its precise scope accentuated by its antiquity has led to absurd decisions which undermine its credibility. The extent to which diminished responsibility alleviates its inherent deficiencies and provides a better guide to kinds of mental disorders that should exempt persons from criminal liability is however questionable. The main difficulty for both lies in determining a dividing line between sanity and responsibility on one hand and insanity and irresponsibility on the other. The question of insanity may arise at the time of the trial if there are concerns that the defendant is unable to appreciate the significance of the trial and is thus 'unfit to plead.' Whilst prior to 1991, such an individual would be incarcerated in a mental institution without proof that the crime had been committed, the Criminal Procedure Unfitness to Plead Act holds that if a there is a finding of 'unfitness' the defendant may only be incarcerated after the definitional elements of the crime have been proved before a jury. This has strengthened the law and brought it more in line with human right requirements. More significantly, where the defendant is considered fit to plead there is the vital question of the defendant's state of mind at the time of the alleged offence. The rules that provide guidance in determining this issue were laid down in M'Naughton 1843 in which the House of Lords delineated the circumstances in which the accused cannot be held legally culpable for his conduct. Rules state that a person is presumed sane unless it can be proved that at the time of the offence he was suffering from "such a defect of reason, from a disease of the mind as not to know the nature and quality of the act he was doing or if he did know, that he did not know what he was doing was wrong." Due to presumption of sanity, the burden of proof is on the defence to prove insanity on balance of probabilities although in exceptional circumstances judge or prosecution may also raise issue of insanity where facts so indicate. However this conflicts with principle that in criminal cases burden of proof should always be on prosecution and may potentially be a contravention of Article 62 of ECHR whereby defendant is always innocent until proven guilty, although some speculate that it merely imposes an evidential onus on the defence. Nevertheless, in order for a successful plea, the defence must establish various elements: The main area of contentions has been the interpretation of 'disease of the mind,' the definition of this which has sparked the most controversy. The definition is a legal one and remains distinct from the medical one even though the Criminal Procedure Unfitness to Plead Act 1991 requires evidence to be given by 2 or more medical practitioners before insanity can be established. However this is not of great significance as the courts have interpreted term so as to include states of mind which doctors would be unlikely to characterise as being a 'disease of the mind,' deciding that it is not merely confined to diseases of the brain alone but covers the mind in all its aspects. This was clarified in Kemp 1957 in which it was held that the defence was available to the defendant who suffered from arteriosclerosis and attacked his wife whilst in a state of unconsciousness. This condition was not considered a 'disease of the mind' in medical terms but it was held that for the purposes of insanity, 'disease of the mind' meant any internal disorder affecting the "ordinary mental faculties of reason, memory and understanding" so that the "condition of the brain was irrelevant." This has had far reaching consequences so that conditions such as epilepsy, sleepwalking and cerebral tumours can also give rise to a finding of legal insanity. In Sullivan 1984 the defendant kicked and injured a friend during an epileptic seizure. Despite medical evidence indicating that epilepsy was not a 'disease of the mind' since in medical terms a disease of the mind is a disorder of the brain functions, which must be prolonged for a period of time, the court held that this was irrelevant. Even though the defendant's condition was "temporary and intermittent" it was a disease of the mind as during a seizure, mental faculties could be impaired to the extent of causing a defect of reason. The policy reasons for rendering such conditions as 'diseases of the mind' were explained by Lord Denning in Bratty 'v' A-G for N Ireland 1963 "Any mental disorder which manifests itself in violence and is prone to recur is a disease of the mind." Cleary one can understand the desire to protect the public from violence, yet not only are there some mental disorders which do not manifest themselves in violence, such as Kleptomania which therefore would not be diseases of mind for purposes of the defence, it seems absurd to render epileptics as dangerous as individuals suffering from severe psychosis. This absurdity has been perpetuated by the courts through drawing of illogical distinctions. A limiting factor on what constitutes a disease of the mind is that the condition must arise from an internal factor so that a state of automatism engendered by external factors is not sufficient for legal insanity. The rigidity of this internal/external divide was illustrated in Quick 1973 in which a diabetic committed an assault whilst in a hypoglycaemic state. The Court of Appeal held that insanity was not available to him as the condition was caused by the failure to take food after taking insulin, which was an external factor. However an illogical distinction was drawn in Hennessy 1989 in which the accused who was also a diabetic failed to take insulin due to stress and depression becoming hyperglycaemic. Having been charged with driving whilst disqualified, it was held that insanity was the appropriate defence since his condition was symptom of his diabetes and this was 'internal' to him. A similar line of reasoning was used in Burgess 1935 where the defendant attacked a friend but claimed that he has been sleepwalking and thus had acted unconsciously. Defence of non-insane automatism was denied to him since sleepwalking was "a transitory disorder due to an internal factor which had manifested itself in violence and was prone to recurrence." Lord Lane did accept that it was incongruous" to label such conditions as insanity. The distinction between internal and external causes is fundamentally flawed. We are forced to conclude that epileptics and sleepwalkers are insane if they commit an act whilst unconscious, and the problem is particularly acute with diabetics; the law maintains that a diabetic in a hyperglycaemic state is insane whilst one in a hypoglycaemic state is not when the results of their conditions are medically similar. They are essentially attempting to draw a distinction between conditions caused by a 'disease of the mind', which may recur and are thus a threat to the public and those caused by an external factor such as concussion which can be easily treated and have the feature of an accident. The difficulty clearly appears to be in delineating a dividing line between insanity and non insane automatism. If it is decided that the defendant is suffering from a 'disease of the mind' it must be proved that it induced a defect of reason. The courts have taken this to mean a complete loss of the power of reasoning, not mere confusion or absentmindedness as in Clarke 1972. This defect of reason must be such that the defendant does not know the nature and quality of his act. In Codhere 1916 this was held to mean the physical rather than moral nature of the act. Thus it is necessary for the defendant to prove that due to 'disease of the mind' he was unaware of what he was doing or did not appreciate the consequences of his act. Prof. Kenny provided an example of "the madman who cuts a womans throat under the idea that he is cutting a loaf of bread. However this is a highly stringent test as it is argued that even a radically psychotic person will appreciate the nature and quality of their acts in this limited sense. In a similar manner the requirement that the defendant must not have knowledge that his act is wrong has been narrowly interpreted. In Windle 1952 it was held that this meant legally 'wrong' so that even if a defendant is aware his act is morally wrong, the defence will fail if he knew his act was prohibited by the law and that it transgresses the ordinary standards adopted by reasonable men. Critics argue that "knowledge of the law is hardly an appropriate test upon which to base ascription of responsibility to the mentally disordered." It is indeed a narrow ground of exemption as even the grossly disturbed will be aware, for instance, that murder is an offence by law. In Sutcliffe 1981 the defendant undertook his divinely endorsed mission to kill prostitutes. Even though he was severely schizophrenic he knew his actions were contrary to law and thus failed to satisfy test for insanity. This indicates that this is certainly not a satisfactory test of criminal responsibility. Although much effort is made to rationalise insanity, it is in practice rarely invoked "“ at present only 2/3 cases are brought each year. For many the consequence of a successful plea is a strong deterrent, as it does not result in an unqualified acquittal but the defendant receives a special verdict of 'not guilty by reason of insanity.' Previously the result of a special verdict was automatic committal to a mental institution with prospect of indefinite detention. A defendant faced with such a possibility often pleaded guilty rather than use of a defence that was in principle available to them, even when they were not morally liable or medically insane. This was clearly an unsatisfactory state of affairs. Although the outcome remains where the charge is murder, the Criminal Procedure Unfitness to Plead Act 1991 provides judges with a range of non penal measures which has increased flexibility so that the sentence can now more closely reflect the seriousness of the offence committed. Although this is definitely an improvement it has still not led to a rise in insanity pleas. Where the charge is murder, most prefer to use the specific defence of 'diminished responsibility' as the period of imprisonment is shorter and is considered a more acceptable alternative than indefinite incarceration in a mental institution. As can be seen there are many weaknesses of the defence of insanity. The M'Naughton rules, have in particular been criticised not only due to the archaic terminology which have little congruence to modern language of psychiatry, it has been said that they are based on "too limited a concept of the nature of mental disorder." They provide an exclusively cognitive test for determining insanity, which is narrow and deficit. However Lord Devlin has supported this emphasis on cognition since it is "reason which makes a man responsible to law"¦which distinguishes him from animals which emotional order does not. So it is fitting that nothing other than a defect of reason should give complete absolution." This reflects the courts unwillingness to develop the law in order to take account of medical progress. When the test was first developed insanity was indeed associated with power to reason but now it is understood that insanity in fact affects not only this but the whole personality. Thus a person who is medically 'insane' may know nature and quality of their act and that it is wrong yet perform it under impulse. However under current state of affairs, they would fail the legal test of insanity and although it has been proposed that insanity should accommodate such individuals who act on irresistible impulse, as they are the ones who are a "danger to society," Lord Steward stated that this was a "fantastic theory"¦which if were to become part of criminal law would be merely subversive." However whilst schizophrenics are not considered insane, the rules have been "broadened and stretched" so that they are wide enough to cover diabetics and epileptics who in any other context would be not be considered 'insane.' Although the courts have continued to maintain that the legal definition may remain reasonably separate from the medical, this is becoming more difficult to uphold without absurdity. It is anticipated that the enactment of the Human Rights Act 1998 may prompt change in this area, as it requires a stronger relationship between legal and medical criteria used to assess insanity. Article 51 allows the "lawful detention of persons with unsound mind" but holds the question of unsoundness must be resolved by reference to "objective medical expertise." Even though the 1991 Act requires evidence from two medical practitioners, this does not preclude the detention of those such as Sullivan and Burgess who by the standards of the medical profession are not of 'unsound mind.' In Quick Lawton LJ argued "common sense is affronted by the prospect of a diabetic being sent to hospital when in most cases the medical condition can be rectified by quickly pushing a lump of sugar into defendants mouth." This constitutes a fundamental contravention of human rights. However under Section 6 courts are obliged to apply convention rights even if this means departing from previous precedent so that in the near future cases such as Sullivan may be a rarity. This will certainly strengthen the current law immensely and is especially desirable given that many other proposals for reform have been ignored by successive Governments, so that the law has remained static and rigid. The defence of diminished responsibility has alleviated many of the deficiencies of insanity, although since it is a specific defence, it may only be pleaded to charge of murder and thus any change is only noticeable where homicide is concerned "“ the position with regards to other less serious offences is likely to remain the same. Further a successful plea will only constitute a partial excuse lowering conviction to manslaughter, although this is still considered a more acceptable alternative than indefinite incarceration in an institution. Unlike insanity, it is defined in statute, under section 2 of the Homicide Act 1957 which states that person may be found guilty of manslaughter "if he was suffering from such an abnormality of mind, whether arising from a condition of retarded development of the mind or any inherent causes induced by disease or injury, as substantially impaired his mental responsibility for his actions." Given the difficulty of establishing insanity, diminished responsibility is seen as more accessible due to its wider scope. It encompasses a greater variety of conditions as it makes an allowance for lesser degrees of mental impairment "“ it requires proof of only impaired responsibility not complete absence of responsibility. Thus unlike insanity it accommodates cases where the defendant acts under irresistible impulses as in Byrne 1960 where the defendant was a sexual psychopath who attacked and mutilated his victims due to perverted sexual urges, stronger than normal impulses, which he was unable to control. However it is still a dubious issue for the courts to resolve due to the narrow dividing line between "he did not resist his impulse and he could not resist his impulse." Essentially the question is one for the jury to resolve, deducing from medical evidence whether the accused was suffering from an abnormality of mind, defined as the "lack of ability to form rational judgement or exercise willpower to control ones acts"¦wide enough to cover minds activities in all its aspects." This abnormality must have been caused by an inherent source which is much wider than the requirement for insanity that 'disease of the mind' be caused by an internal factor as it includes any malfunctioning of the mind. However emotions such as rage, hatred or external factors such as drugs and alcohol cannot be put forward for obvious reasons of policy. Yet some flexibility is retained as although intoxication will not support a defence, alcoholism may suffice when arising from "disease or injury" as when there is gross impairment of judgement or if drinking was involuntary arising from a craving, which the defendant could not resist as reinforced in Tandy 1989. Thus it is clear that a person does not have to be 'mentally disordered' to be exempted from full liability; in Miller it was allowed for someone who killed in a fit of jealousy and in Smith for a woman suffering from pre menstrual tension. However even if the jury are satisfied that the defendant suffered from an abnormality of mind there remains the important question of whether it was sufficient to have substantially impaired his responsibility i.e. was the difficulty in controlling the impulse substantially greater than would be experienced by an ordinary person. As established in Simcox 1964 the impairment need not be total but must be more than trivial. There should also be evidence to support this contention and this is where the defence begins to become less clear and a less reliable guide on the mental disorders that will exempt individuals from liability; It has been speculated that Section 2 encourages role confusion between the judge, jury and medical profession. It is argued that it is in the hands of psychiatrists and doctors to establish or rebut the defence with medical evidence, which is undesirable, as they should not be delivering opinions on legal and moral responsibility, these being jury issues. However in practice despite the importance of medical evidence, it is ultimately for the jury to decide whether abnormality of mind is sufficient to have substantially impaired judgement and they are in a position to reject unanimous medical evidence as in Sanders 1991 in which the accused conviction for the murder of his mistress was upheld despite the fact that two psychiatrists had testified that he was suffering from depression at the time. Ultimately the question resolves itself into a moral one for the jury "“ whether they believed that the accused deserved to be convicted of murder. This led Glanville Williams to state, "the defence is interpreted in accordance with the morality of the case rather than as an application of psychiatric concepts." In Sutcliffe, for instance, there was unequivocal evidence of the defendant's abnormality, as he had been compelled to act due to irresistible impulses, yet the jury convicted him of murder. It was desirable that a man accused of such notorious crimes, if guilty should bear the label of murderer. This leads to inconsistency and arbitrary development of the law so that the concept is no longer a reliable guide on the disorders that will lead to exemption. Ultimately, despite being statutorily defined, diminished responsibility, although a definite improvement on previous state of affairs, suffers from similar problems as insanity in terms of imprecision of scope. On one hand the definition of Section 2 is considered intensely loose as it has been suggested that it too readily available for defendants who kill, for instance, but then produce medical evidence of long term depression which is sufficient for a successful plea and on the other, it appears that the defence may sometimes be wrongly refused on the grounds of policy as in Sutcliffe. It is to be hoped that between the narrow scope of insanity and wide scope of diminished responsibility, defendants who lack the capacity to think rationally and control their actions due to mental disorder are ensured justice.   

It has been well-established feature of the English legal system that rules of criminal law are addressed to rational and responsible persons who have the capacity to control their actions and understand and comply with rules. Persons lacking such capacity should not be held criminally culpable even if some wrong...

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