Mental incapacity and criminal liability: Redrawing the fault lines?

The proper boundaries of criminal liability with respect to those with questionable mental capacity are currently under review. In its deliberations in the areas of unfitness to plead, automatism and the special verdict of not guilty by reason of insanity the Law Commission for England and Wales have been cognizant of particular difficulties in fairly attributing criminal responsibility to those whose mental capacities may or may not have impinged on their decisions, either at the time of the offence or at trial. And they have referenced the potential breaches of the European Convention on Human Rights (ECHR) posed by the state of our current laws. However, in their efforts to remedy these potential deficiencies is the Law Commission heading in a direction that is fundamentally incompatible with the direction embodied by the United Nations Convention on the Rights of People with Disabilities (CRPD)? Whether one must cede sensibly to the other, or whether some compromise might emerge, perhaps through an extension of supportive services or through the development of disability-neutral criminal law, forms the subject of this paper.