Conflicts with International Law If defendant proves the absence of men reas due to insanity, there would not

be any crime committed and no conviction could be charged by the court following the concept of not guilty by reason of insanity (NGRI) and courts may order the accused to be confined in a mental illness hospital for treatment until the courts find the accused to be fit to be released. However, this is in contrast with Article 5 of the European Conventions of Human Rights. In Article 5 (1) of ECHR, it has been stated that everyone has the right to liberty and security of the person and Article 5(1)(a) stated that detention of a person could only be done after the conviction of a person by a competent court meaning to say that unless a person is convicted as guilty by the court, none hold the right to detain oneself from his freedom. In R v Sullivan, Lord Diplock used the case as the foundation in defining insanity. In his judgment, he stated that it does not matter whether the disease is caused by an organic cause or functional or as to whether it being permanent or temporary provided that the disease subsisted at the time of the incident. However, in the Article 5 (e) of the European Conventions of Human Right where it mentioned that for one person to be detained in mental hospital, one has to be fully mentally disorder: either being of neurotic or psychotic. In saying so, people who were claimed as insane due to other causes such as hyperglycemia and epilepsy could not be possibly confined. Then, judgment in cases ie R v Sullivan and R v Burgess are largely exposed to criticisms. Guilty but Mentally Ill Currently nine states are experimenting with a guilty but mentally ill verdict or its equivalent. They permit a guilty but mentally ill verdict as an alternative choice for jurors to the traditional insanity defense. Were, however, guilty but mentally ill to be the only verdict possible (besides guilt or innocence), this would be the abolitionist position in disguise. The idea of moral blameworthiness would be diminished within the law. This does not seem right. There are also problems with guilty but mentally ill as an alternative choice to the traditional insanity defense. Guilty but mentally ill offers a compromise for the jury. Persons who might otherwise have qualified for an insanity verdict may instead be siphoned into a category of guilty but mentally ill. Thus some defendants who might otherwise be found not guilty through an insanity defense will be found guilty but mentally ill instead. The guilty but mentally ill approach may become the easy way out. Juries may avoid grappling with the difficult moral issues inherent in adjudicating guilt or innocence, jurors instead settling conveniently on guilty but mentally ill. The deliberations of jurors in deciding cases are, however, vital to set societal standards and to give meaning to societal ideas about responsibility and nonresponsibility. An important symbolic function of the criminal law is lost through the guilty but mentally ill approach. There are other problems with guilty but mentally ill. Providing mental health treatment for persons in jails and prisons has, over the years, proved a refractory problem (16). Yet the guilty but mentally ill approach

makes sense only if meaningful mental health treatment is given defendants following such a verdict. In times of financial stress, the likelihood that meaningful treatment for persons guilty but mentally ill will be mandated and paid for by state legislatures is, however, slight. This has been the outcome in Michigan (the state that first embarked upon the guilty but mentally ill approach) where even though they have been found guilty but mentally ill, felons have received no more treatment than they would have prior to the new law. Alternatively, whatever limited funds are available for the treatment of mentally ill inmates may be devoted to guilty but mentally ill defendants, ignoring the treatment needs of other mentally ill but conventionally sentenced prisoners who require mental health treatment in prison. The guilty but mentally ill plea may cause important moral, legal, psychiatric, and pragmatic problems to receive a whitewash without fundamental progress being made. We note that under conventional sentencing procedures already in place, judges may presently order mental health treatment for offenders in need of it. Furthermore, a jury verdict is an awkward device for making dispositional decisions concerning a person's need for mental health treatment.
Shah SA: Some interactions of law and mental health in the handling of social deviance. Catholic University Law Review 23:674-719, 1974 Roth LH: Correctional psychiatry, in Modern Legal Medicine, Psychiatry and Forensic Science.Edited by Curran W, McGarry AL, Petty C. Philadelphia, FA Davis Co, 1980 Rogers JL: 1981 Oregon legislation relating to the insanity defense and the Psychiatric Security Review Board. Willamette Law Review 18:23-48, 1982