The insanity defence and international human rights obligations

Abstract

In England and Wales, there has been growing concern that the traditional insanity defence based on the M’Naghten Rules is in breach of international human rights obligations under the European Convention for the Protection of Human Rights. This article examines whether current versions of the insanity defence in Australia and New Zealand breach the right to liberty set out in Article 9(1) of the International Covenant on Civil and Political Rights. Applying the criterion set out by the European Court of Human Rights in Winterwerp, the authors argue that versions of the defence in the Australian Capital Territory and Tasmania go some way toward meeting the criteria. However, there the majori..