Abstract
The insanity rules in England and Wales are potentially per incuriam. While the modern interpretation of the M’Naghten rules recognises the Cognitive and Wrongfulness Limbs, a third Control Limb should be available to cover those whose mental illness manifests irresistible impulses to commit crimes. This third limb was contemplated by judges before and since M’Naghten. It is medically sound and juridically expedient. To continue to deny the third limb does a disservice to the common law. It also prevents a just resolution to cases involving a mentally ill defendant whose disease of the mind manifests in an uncontrollable impulse to act.
Introduction
All criminal defences, argued Blackstone, “may be reduced to this single consideration”, that of the “want or defect of will”.[1] Blackstone illustrated the truism that only voluntary acts may be culpable. The insanity defence, such as it is, should be no exception. However, the status quo of the law reveals an unjustified preference for certain types of mental illnesses over others. Namely, the defence is only available to deluded defendants. This contribution will argue that, as a matter of medicine and of law, it is better for the common law to see those inflicted by irresistible impulses as insane and to acquit them accordingly. This contribution will suggest that this change should be effected by the (re-)introduction of a Control Limb—that is, a test considering whether the defendant’s mental illness constituted an irresistible impulse which negated self-control from offending—to the existing insanity rules.
For this discussion, an irresistible impulse occurs where a defendant’s capacity to keep from criminal conduct is clinically inhibited by a recognised mental illness. Mere emotional stress, such as through extreme anger or aggrievement, though it may constitute a trigger for “loss of control” within the meaning of Section 54 of the Coroners and Justice Act 2009 (“CJA 2009”), are not irresistible impulses.[2] The closest analogy in existing law may be diminished responsibility, a partial defence to murder.[3] The reader may recall that, as provided by Section 52(1A)(c) CJA 2009, a partial defence may be established where the alleged murderer suffered from an abnormality of mental functioning which substantially impaired self-control. Still, two differences remain. The first is that proof of insanity affords acquittal by special verdict,[4] compared to the conviction of a lesser charge which results from proof of diminished responsibility. The second is that, given the greater degree of exculpation, and given the absolute formulations in the rest of the insanity rules, mere impairment of control may not be sufficient for insanity. This contribution prefers a definition of irresistible impulse as requiring proof that the medical condition effectively eliminated the capacity for control, as determined by expert psychiatrists.
This contribution will demonstrate that acceptance of irresistible impulses by incorporation of the Control Limb into the insanity rules is needed to correct a mistaken course in the jurisprudence and to deliver justice. The remainder of the work will be structured as follows: it begins by defining and discussing the law as it currently stands; it will then consider the medical fact of irresistible impulses and compares its impacts on free will with those of insane delusions; it concludes by suggesting a formulation of the Control Limb and consideration of counterarguments and impacts.
The Current Law
Establishment of the defence enables acquittal by the special verdict of not guilty by reason of insanity. While ordinary punishment, like fines or imprisonment, are excluded, the person so acquitted may still be subject to compulsory restrictions, such as a hospitalisation order.[5] Beyond the doctrinal need to match criminal sanction with culpability, insanity provisions also play an important tempering role by allowing mentally ill offenders to access proper medical treatment un- or under-available in custody.[6] Indeed, as custodial sentences are likely to worsen mental illnesses,[7] it is crucial that rules are in place to divert deserving patients to hospitals, not prison. It is submitted that the present insanity rules under-perform this critical function in addition to being principally incoherent.
The present rules will now be canvassed. By tradition, they were authoritatively set out by the House of Lords in M’Naghten’s Case.[8] Insanity is established when, labouring under a defect of reason caused by a disease of the mind, the defendant either: 1) did not know the nature and quality of her act, or: 2) did know it, but did not know that her act was wrong.[9] In this contribution, the first limb is referred to as the Cognitive Limb, and the second as the Wrongfulness Limb.
The Cognitive Limb tests whether the defendant appreciated the physical characteristics and consequences of her act, as would be understood by a reasonable person.[10] The Wrongfulness Limb tests whether the defendant knew her act to be either legally or morally wrong, as judged by the ordinary standard of a reasonable person;[11] or, as Tindal CJ put it: where the act was contrary to law, whether “the accused was conscious that the act was one which he ought not do”.[12] Notably, the current rules concern themselves with whether the defendant was aware of her conduct and either of its illegality or immorality. For instance, in Windle, the defendant killed his wife by administering to her a lethal dose of aspirin pills following her constant expression of her desire to commit suicide.[13] Goddard LCJ accepted that the defendant “may have thought it was a kindly act” to end the victim’s perceived unhappiness, thus he may have believed he was not committing a moral wrong.[14] Nonetheless, Goddard LCJ excluded insanity because, even mentally ill as the defendant may have been, he still knew that he had committed an unlawful killing.[15] Similarly, in Bell, the defendant drove recklessly into multiple pieces of property.[16] His defence was that he believed he was possessed by God and only hit vehicles containing evil spirits.[17] As in Windle, Goff LJ ruled out insanity because “the [defendant] was plainly in physical control of his actions” and because he ought to have known his act was unlawful due to the “obvious and serious risk” involved in driving dangerously.[18] Thus, a sound understanding of one’s act always proved legal sanity.[19]
Considering the above, the M’Naghten rules see insanity only as a condition wherein the afflicted individual cannot comprehend some physical, legal, or moral element of the objective world. It may be seen from Windle and Bellthat subjective factors, such as believing that one was committing a mercy killing or that God mandated certain cars be destroyed, were irrelevant to insanity. Consequently, the common law restricts exculpatory mental diseases only to those that undermine perception.
This restriction is a natural result of M’Naghten’s context. Very specific questions, only aimed at clarifying the law vis-à-vis “insane delusions” were put to the judges.[20] They understandably confined themselves to explaining what manner of delusion released an individual from criminal responsibility. They justifiably held that it was when an individual could not know what she was doing or could not tell right from wrong. Doctrinally, criminal liability hinged on the accused’s capacity for rational judgement. Therefore, an accused so deluded that she had no awareness cannot be culpable,
The Issues with the Current Law
The existing grounds for exculpation by insanity may be conducive to justice where they apply. However, this contribution suggests that they remain unduly narrow. Two issues arise with the current exclusion of the irresistible impulse. First, delusions are not the only symptom of mental illnesses capable of negating will to such an extent wherein criminalisation is inappropriate. Secondly, the judicial treatment of the Control Limb is questionable as a matter of precedent. These points are discussed in turn.
Irresistible Impulses as a Condition
As early as 1876, psychiatrists recognised that insanity came in more forms than delusion.[21] In the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”)—the leading diagnostic tool for mental illnesses published by the American Psychiatric Association—“disruptive, impulse-control, and conduct disorders” are recognised.[22] There, psychiatrists record conditions, such as conduct disorder, pyromania, and kleptomania, which impair or eliminate patients’ “behavioural regulation” such that their actions “violate the rights of others (e.g., aggression, destruction of property)” and thus the law.[23] The symptoms of these disorders vary in their effect on the patient’s capacity for self-control.[24] In some cases, the criminal impulse created by the disease may be deemed clinically irresistible, due to its pervasiveness or persistence.[25] The irresistibility of the thieving impulse borne by kleptomania, for instance, may be evidenced by reports of potentially overwhelming tension, anxiety, or obsession with the item prior to the theft, and irrational gratification afterwards.[26] It follows that modern psychiatry recognises patients who suffer from a type of insanity without delusion, such that they make uncontrolled decisions while still perceiving the world around them normally. A case study may be of assistance in understanding the problems with punishing the prima facie criminal acts of these patients.
In Keal, the defendant was charged with grievously injuring his parents and grandmother.[27] He had very poor mental health, suffered from a drug addiction, and attempted suicide the day prior to the attack.[28] Expert psychiatrists agreed that he suffered from a psychotic episode during the commission of the offences.[29] For his part, he claimed that he had been possessed by the Devil and could not control his actions; he shouted apologetically as he attacked.[30]Concerningly, the Court of Appeal endorsed an interpretation of the insanity rules that insisted on proof of the defendant’s failure to understand that his act was unlawful and immoral.[31] Mr Keal’s apology was taken to convey his understanding of his acts and his appreciation of their illegality and immorality. His conviction was upheld on that basis.
There is some difficulty reconciling Mr Keal’s conviction with the traditional justification of criminal liability as a condemnation of deliberate, culpable behaviour contrary to societal standards. Consider how Mr Keal may have suffered from an irresistible impulse in the sense that the symptoms of his mental illness overpowered his self-control.[32] He appreciated the physical characteristics and consequences of stabbing his father with a knife, puncturing his mother with a pair of scissors, and bludgeoning his grandmother with a bat.[33] He understood that his actions were unlawful and immoral. Nevertheless, his disease prevented him from rationally applying his understanding to formulating his behaviour. In effect, he perceived sanely but acted insanely. Under the current rules, his sound perception is fatal to his plea of insanity.
This appears unjustifiable as a principle. If we take Blackstone’s point that criminal sanction should only be wielded against culpable acts, the law seems ignorant of the excusatory nature of under-voluntary irresistible impulses. In deciding which defendants are acquitted, courts should not stop at whether they were aware of the world around them, but ought to carry on asking if they were capable of using that awareness to make a rational judgement.[34] Currently, a defendant is excused if they cannot internalise objective reality. It is difficult to understand how the defendant who could understand their situation, but cannot use that information meaningfully, is less worthy of an excuse. Without that final step, the defendant did not have agency. She might have understood how her actions may be criminal; she may even intend those criminal consequences due to the inevitability of their occurrence from her conduct. Though,
Admittedly, an individual suffering from a condition which eliminatesding
The Treatment of Irresistible Impulses in Case Law
It will be recalled that the M’Naghten rules equate insanity with delusion. Later cases held that those rules were exhaustive and universally applicable.[35] However, M’Naghten may not have been intended to be read as an authority on the whole of insanity. A line of older precedent may confirm that the Control Limb is not novel to the common law. Indeed, it may have been a longstanding but overlooked component on equal footing with the Cognitive and Wrongfulness Limbs. In that case, the courts may be obligated to discuss it with greater detail.
The relevance of capacity for self-control to insanity was acknowledged prior to and—albeit infrequently—since M’Naghten. Three years before M’Naghten, one member of that bench: Denman LCJ held, in Oxford,[36] that if the commission of the offence was due to “some controlling disease… which [the defendant] could not resist, then he would not be responsible”.[37] This may have been the earliest formulation of the Control Limb.
It will be recalled that the Judges were not asked of a “controlling disease” in M’Naghten. That context may explain why Tindal CJ omitted conditions undermining control when speaking for the bench. It follows that the view of M’Naghten as exhaustive, with the effect of excluding irresistible impulses from insanity, is unwarranted. Otherwise, the judges’ (especially Denman LCJ’s) silence on Oxford would have been difficult to understand.[38]
The holding in Oxford was not entirely discarded following M’Naghten. In King v Fryer, decided in 1915, Bray J considered that the M’Naghten rules “does not… completely state the law”.[39] He directed a jury that if the defendant’s mental disease “depriv[ed] him of the capacity to control his actions”, it ought to find him insane.[40] In Ronald True’s case, decided in 1922, McCardie J set out the M’Naghten rules, but continued to state that if the defendant “through mental disease [has been] deprived of the power of controlling his actions”, the jury should return the verdict of “guilty but insane”.[41] Both sets of directions contemplate the possibility for mental illnesses to sufficiently negate control to excuse otherwise criminal conduct.
Of course, it is untenable to say that the e
Changing the Law
This contribution will propose a formulation of the Control Limb. It is that notwithstanding whether a defendant understood the characteristics and the wrongfulness of her conduct, if she suffered from a recognised mental illness such that her ability to keep from that conduct is effectively eliminated (for instance, by clinically significant, persistent, and overwhelming urges, anxiety, tension, or obsession), she is legally insane. The threshold for “effectively eliminated” will be higher than merely impacted or impaired, as those circumstances are covered by the diminished responsibility partial defence.[44] However, the effect on control does not need to rise to acts that are “wholly involuntary”[45] or performed with a “complete destruction of voluntary control”[46] due to unconsciousness as required by the automatism defence. The distinction is that while automatism is predominantly regarded as only applicable in relation to mindless action, such as “spasms, convulsions and reflex acts”,[47] or conduct during a blackout of consciousness,[48] satisfaction of the proposed Control Limb does not require the total lack of awareness, but only that control against offending is overwhelmed by the medical condition. Unlike a defendant pleading automatism, a defendant pleading under the proposed Control Limb will be successful even if she maintained awareness of her conduct throughout the commission of the offencs
| Applicable Defence | Degree of Control is… | Operative Medical Condition |
| Loss of Control | Lost through a “qualifying trigger”.[49] | None.[50] |
| Diminished Responsibility | “Substantially impaired…”.[51] | “… abnormality of mental functioning…”.[52] |
| Insanity by the Control Limb | Effectively eliminated by persistent and clinical urges. | Conduct disorder, pyromania, kleptomania, etc. |
| Automatism[53] | “… unconscious involuntary action…”[54] due to blackout or reflexive conduct. | Epilepsy, sleepwalking, hypoglycaemia, etc.[55] |
Figure 1: Various Defences Involving Conditions Impacting Self-Control
Evidence for such “effective elimination” of control will primarily be supplied by psychiatric diagnosis, much like the case under the other two limbs. It will be determined on the balance of probabilities, as with proof of the existing limbs of insanity.[56] On the facts, the jury must find that it is more likely than not that the force of the disease is such that an ordinary person would not be able to resist its urges, whether due to the strength of a specific moment of impulse or due to the pervasive and long-running consistency of the impulse.
While this contribution sees great force in counterarguments, it also provides several responses in turn. The first counterargument is that whether an impulse was irresistible, that is, whether the defendant’s mental illness sufficiently diminished or eliminated self-control, is too subjective to be a usable legal test.
To begin, it is worth noting that, ultimately, the insanity rules test subjective mental functioning. For better or for worse, defences on medically diagnosed lack of control, such as insanity, diminished responsibility, and automatism, depend on deference to medicine. Asking if a mental condition prevented a defendant from controlling her urge to steal, for instance, is not very different from asking if a similar condition prevented her from understanding that she had taken an item belonging to another or that theft is illegal. The same subjectivity pervades a question on the existence of a sufficiently overwhelming urge as one on the non-existence of understanding or perception. Both involve determinations on internal, mental processes. Admittedly, delusions are further removed from normal mental functioning than urges,
An irresistible impulse must be irrational. Thus, where the commission of an offencs
Neither could it be said that juries are incapable of making findings on a defendant’s capacity for control. The partial defence of diminished responsibility will be recalled. In Byrne,[62] Parker CJ held that one “abnormality of mind” the jury must consider for that defence is whether the defendant had “the ability… control… acts… in accordance with… rational judgment”.[63] It would be inconsistent to suggest that juries can determine diminished responsibility by impaired self-control but cannot determine irresistible impulses negating self-control. A difference in degree is not insurmountable.
Additionally, if proof is required that juries be able to render verdicts considering a Control Limb, that is supplied by Australian and South African experience. In Queensland, “a person is not criminally responsible” if, at the time of the act or omission, some mental irregularity deprived “the person… of capacity to control the person’s actions”.[64] In South Africa, a defendant is not guilty if he “lost the power of will to control his conduct in reference to the particular act charged as an offence”.[65] These Commonwealth jurisdictions also practice a version of the common law, and instruct juries in much the same manner as in English and Welsh courts. Australian and South African jury members are comparable to their English and Welsh counterparts. They demonstrate the possibility for our analogous institutions to cope with questions involved by
The second counterargument, as stated by Burnett LCJ, is that any adoption of a Control Limb would be best left for Parliament.[66] There are three reasons supporting the judiciary, through the Supreme Court, to enact this change. First, while the Control Limb is not now a part of the insanity rules, neither is it entirely novel. It had been a part of the common law, but was abandoned, on one view, due to misinterpretation. It is the function of the senior courts to correct jurisprudence by overruling incomplete lower court holdings. Secondly, it would be inappropriate for our courts to abdicate their reformative role, while they send defendants—like Mr Keal—who may satisfy the proposed Control Limb and who are certainly ill, to custodial sentences, thereby denying or significantly limiting care. Judicial deference to Parliament overlooks the active role the courts play in furthering injustice by denying the special verdict to a class of patients who offend. Thirdly, judicial action is not repugnant to statutory change. On the contrary, a new precedent is often a catalyst for parliamentary attention on an issue.[67] The advantages of Parliament enacting reform, such as its conduciveness for consultation, for more comprehensive change, and for democratic support are not lost. It may be that a Supreme Court decision is the key to initiating an overall review of unsatisfactory insanity rules and its doctrinal inconsistencies.
Finally, on the practical impacts, it should be remembered that the present regime fails to afford certain offenders the necessary mental health care because they do not exhibit the required,of
Conclusion
In conclusion, there are mental illnesses which cause sufferers to be unable to control their impulses. The modern common law fails to see these conditions as inducing legal insanity. The reasons for this exclusion do not fully explain away issues of doctrine and precedent. By reintroducing the Control Limb insanity defence, more patients can receive the help they need, more of those accused can properly escape unjust stigmatisz
[1] William Blackstone, Commentaries on the Laws of England (vol IV, 4th edn., Clarendon Press 1768), 20.
[2] The reader will note that English Law requires a defendant who seeks to plead insanity to suffer from a recognised medical condition called a “disease of the mind”, though not necessarily a purely mental illness, which impairs “mental faculties of reason, memory, and understanding”. R v Sullivan [1984] AC 156, 172. A defendant acting in anger or out of aggrievement cannot plead insanity because she would lack the qualifying medical condition. See also Ronnie Mackay, ‘The Insanity Defence in English Law’, in Ronnie Mackay & Warren Brookbanks (eds.) The Insanity Defence: International and Comparative Perspectives (OUP 2022) 21, 27-28.
[3] Coroners and Justice Act 2009, ss 52-53.
[4] The “special verdict” is termed “not guilty by reason of insanity”. Trial of Lunatics Act 1883, s 2(1) as amended by Criminal Procedure (Insanity) Act 1964, s 1.
[5] Criminal Procedure (Insanity) Act 1964, s 5.
[6] Law Commission, Insanity and Automatism (Discussion Paper, 2013), para 1.70.
[7] ibid para 1.72.
[8] Daniel M’Naghten’s Case (1843) 10 Cl & F 200.
[9] ibid 200.
[10] R v Codere (1917) 12 Cr. App. R. 21, 27.
[11] ibid 27-28; R v Windle (1952) 36 Cr. App. R. 85, 89; R v Bell [1985] RTR 202, 202-203. While Codere, Windle, and Bell were chiefly concerned with whether the defendant knew his act to be legally wrong, in R v Keal [2022] EWCA Crim 341, at [41], Burnett LCJ held that it was necessary for the defendant, in pleading insanity, to prove that he did not know his act to be both unlawful and immoral. Therefore, legal and moral wrongfulness are relevant to the Wrongfulness Limb; both are essential to satisfy the test.
[12] M’Naghten’s Case (1843) 10 Cl & F 200, 210.
[13] R v Windle, (1952) 36 Cr. App. R. 85, 87, 89.
[14] ibid 88-89.
[15] ibid 87, 90. The defendant “told the police that he supposed he would be hanged” for poisoning his wife, which demonstrated his awareness of the physical characteristics and consequences of his act and of murder’s illegality.
[16] R v Bell, [1985] RTR 202, 202.
[17] ibid 204.
[18] ibid 207-208.
[19] An additional point of interest is the attempt to characterise an irresistible impulse as something the defendant could not know is wrong, thus incorporating the Control Limb into the Wrongfulness Limb. However, this approach was rejected by the Privy Council in Attorney-General of South Australia v Brown [1960] UKPC 10.
[20] M’Naghten’s Case (1843) 10 Cl & F 200, 203. Admittedly, in Windle, Goddard LCJ held that “the M’Naghten Rules have… been generally applied to all cases of insanity, whatever the nature of the insanity or disease of the mind from which the offender is suffering” at (1952) 36 Cr. App. R. 85, 90. However, this contribution goes on to discuss why Goddard LCJ may have erred in holding that M’Naghten was intended to be universally and exhaustively applicable in insanity cases.
[21] Henry Maudsley, Responsibility in Mental Disease (D Appleton 1876), 132.
[22] See generally: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edn, American Psychiatric Publishing 2013), 461-480.
[23] ibid 461.
[24] ibid.
[25] Ludwig Lowenstein, ‘Kleptomania: Research Review (1993-2002)’ (2003) 167 JPN 148, 148.
[26] Bharat Saluja, Lai Gwen Chan & Dani Dhaval, ‘Kleptomania: a case series’ (2014) 55(12) Sing. Med J. 207, 209.
[27] R v Keal [2022] EWCA Crim 341.
[28] ibid [6].
[29] ibid [13].
[30] ibid [4], [9], [16].
[31] ibid [41].
[32] While Mr Keal was certainly deluded in the sense that his psychosis caused him to believe he was acting at the behest of the devil, two of the four expert psychiatrists believed that the delusion was a “command hallucination” which amounted to a “compulsion” to act. The two experts: Dr O’Shea and Dr Singh testified that “[Mr Keal] was… compelled to [commit the offenses]” by his illness, and that his apologetic attitude afterwards did not undermine this diagnosis. Therefore, Mr Keal’s case can be considered under the proposed Control Limb, especially as his defense under the existing limbs were rejected. R v Keal [2022] EWCA Crim 341, [17]-[18].
[33] ibid [3]-[5].
[34] Law Commission, Insanity and Automatism (Discussion Paper, 2013), para 4.14. The Law Commission makes the same recommendation in Conclusion 3.
[35] R v Windle (1952) 36 Cr. App. R. 85, 90.
[36] R v Oxford (1840) 9 C & P 525.
[37] ibid 546.
[38] Edwin Keedy, ‘Irresistible Impulse as a Defence in the Criminal Law’ (1952) 100(7) U.Pa.L.Rev. 956, 961.
[39] HL Deb 15 May 1924, vol 75, cols 449. Lord Darlington quoted Bray J’s directions in the case in a debate in the House of Lords. The case itself does not appear to have been reported.
[40] ibid.
[41] ibid cols 450. Lord Darlington also quoted McCardie J’s directions in the same debate. The case also does not appear to have been reported.
[42] R v Kopsch (1927) 10 Cr. App. R. 50, 51.
[43] R v Keal [2022] EWCA Crim 341, [45].
[44] Coroners and Justice Act 2009, ss 52-53.
[45] Coley and others v R [2013] EWCA Crim 223, [22].
[46] Attorney-General’s Reference (No. 2 of 1992) [1994] QB 91, 95.
[47] Ronnie Mackay, Mental Condition Defences in the Criminal Law (Clarendon Press 1995) 63. See also R v Cottle [1958] NZLR 999, 1020.
[48] R v Quick [1973] QB 910, 910, 915.
[49] Coroners and Justice Act 2009, s 54(1).
[50] ibid s 55(3)-(5). The “qualifying triggers” are s 55(3): “fear of serious violence”, s 55(4): “a thing… done or said (or both) which… constituted circumstances of an extremely grave character, and caused… a justifiable sense of being seriously wronged”, and s 55(5): “a combination of… (3) and (4)”.
[51] Homicide Act 1957, s 2(1)(b) as amended by Coroners and Justice Act 2009, s 52(1).
[52] Homicide Act 1957, s 2(1A)(c) as amended by Coroners and Justice Act 20019, s 52(1).
[53] The author is aware of the distinction between “insane” and “non-insane” automatism, as delineated by whether the unconscious conduct was caused by an internal or external factor. However, this distinction is irrelevant to the present discussion, as it does not bear on the requisite level of self-control. On the distinction, see Bratty v Attorney General for Northern Ireland [1963] AC 386; R v Quick [1973] QB 910; R v Hennessy [1989] 2 All ER 9.
[54] Bratty v Attorney-General for Northern Ireland [1963] AC 386, 401.
[55] Jonathan Bird, Margaret Newson & Krystyna Dembny, ‘Epilepsy and automatism’ in Susan Young et al. (eds.) Forensic Neuropsychology in Practice: A guide to assessment and legal processes (OUP 2009) 165, 166.
[56] R v Keal [2022] EWCA Crim 341, [21]-[22].
[57] R v Codere (1917) 12 Cr. App. R. 21, 28.
[58] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edn, American Psychiatric Publishing 2013), 476, 478.
[59] ibid.
[60] ibid 478.
[61] ibid 476, 478.
[62] R v Byrne [1960] 2 QB 396.
[63] ibid 396.
[64] Criminal Code Act 1899, s 27(1).
[65] Queen v Hay (1899) 16 Cape SCR 290.
[66] R v Keal [2022] EWCA Crim 341, [49]-[51].
[67] For example, the Supreme Court decision Barker v Corus (UK) plc [2006] UKHL 20 prompted Parliament to include Section 3 in the Compensation Act 2006. The legislation effectively reversed the Supreme Court’s decision that an individual tortfeasor causing personal injury by negligent exposure to asbestos fibres are only severally liable with other tortfeasors in respect of a single case. The example is not to say that Parliament would reverse any Supreme Court decision on insanity, but rather that judicial action may prompt parliamentary action, in agreement or discord, which may be considered when determining whether it is sound for a court to act on a matter of change.
Bo Jia Zhang
King’s College London LLB 2026