Reforming Laws Regarding Criminal Responsibility of Mentally Disordered Offenders in Thailand: The Insanity Defence under Section 65 of the Criminal Code of Thailand

Abstract

This research article aims to make recommendations to reform the insanity defence and disposal in Thailand, through a comparative study with the jurisdictions of England and Wales and Scotland.

Currently, mentally disordered offenders are often dealt with inappropriately under Thailand’s criminal justice system, since the current legislation and system in Thailand contains a loophole, which allows these offenders to be prosecuted under the ‘ordinary’ criminal justice system. Consequently, they end up serving a sentence, which is normally imprisonment. In practice since the offenders usually do not receive medical treatment within prisons. Moreover, as they tend to serve less time than their original sentence due to the department of correction’s policy, the chance that mentally disordered offenders would be rehabilitated, and safely released back into society is very slim. Consequently, there is a chance that they would re-offend, and in this context, public’s safety is at risk. Moreover, mentally disordered offenders, specifically those who suffer from severe mental disorders such that they lack rational capacity, do not belong in prison nor should they receive punishment, as punishing them would not fulfil the objectives of the criminal law nor would it satisfy society’s morality regarding punishment.

Thus, this research article proposes that the insanity defence in Thailand must be reformed by substitute the current insanity defence with the proposed ‘defence of criminal incapacity’. In this regard, mentally disordered offenders would receive proper rehabilitation, be treated more fairly, and the risk of them re-offending would be lower. Thus, this would simultaneously make Thai society safer and could prevent problems associated with crime committed by mentally disordered offenders.