Where defence counsel assents to the mental illness issue at trial and tenders psychiatric evidence supporting it, the defence of mental illness is 'set up' by the accused for the purposes of s 5(2) of the Criminal Appeal Act 1912, regardless of the accused's personal wishes. Even where an appeal against a special verdict might succeed on procedural grounds, s 7(4) requires the Court of Criminal Appeal to consider the mental illness evidence and, if it supports the same conclusion, to make the same order. Section 38 of the Mental Health (Criminal Procedure) Act 1990 does not require proof that the accused's actions would not have occurred but for the mental illness; it is sufficient to prove the accused was suffering from mental illness at the time of the acts.
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