Insanity is a legal concept not a medical one. In fact, forensic psychiatrists who deal all day with mentally disordered offenders rarely use the term. Often their use of it is with regard to their completion of psychiatric reports for the criminal courts. Otherwise, as one psychiatrist recently said, “I don’t go to work and ask people how they’re getting on with the insanity!” It just is not a medical concept.
We’ve known for decades that psychiatry and law are two massively high profile, important public disciplines and yet there is much to be said for the argument that they are incompatible. As I write in 2012, the law on insanity relates to a case which occured in 1843 Victorian England, R v M’NAGHTEN. If psychiatry were still operating to early Victorian standards we would still have county asylums and all the injustices and abuses that they often represented. Yet legally, we’re still right there!
Daniel M’Naghten shot Edward Drummond, the private secretary to Prime Minister and founder of the modern police service, Sir Robert Peel. Mr Drummond died of his injuries five days later and in 1843 there was no option of convicting for manslaughter on the grounds of dimished responsibility. Because the court found M’Naughten insane, he was acquitted of the offence and detained in Bethlem Hospital, London under existing mental health law. He was subsequently transferred to the “Broadmoor Asylum for the Criminally Insane”, now Broadmoor Hospital. A House of Lords committee were asked to advise on a set of rules to govern findings of insanity and their report contained a quotation which has formed the basis of the Rules and which breaks down into four parts:s
“Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
- Suffering from a “defect of reason”; AND
- Owing to “disease of the mind”; AND
- Did not know the nature and quality of the act; OR
- Did not know that what he was doing was wrong.
This remains the legal code for insanity in very many legal jurisidictions, including Norway, Australia Canada, Hong Kong, the Republic of Ireland and most of the United States. There are more. Nearly two hundred year old law and not substantially updated in light of undoubted developments in medicine and psychiatry – remember, what were thought mental disorders in the nineteenth century have been revealed to be a vast array of different neurological or psychological conditions and let us remember that asylums were also used for various categories of socially awkward individuals – for example in some cases, young single mothers. Of course, society now has a very different view about mental disorder now compared to 1843 so we should hope that the law keeps up!
The issue is actually more problematic in practice. One of the tensions between the NHS and the criminal justice system, is that mental illness is often cited by police or CPS as a reason not to prosecuted. I’ve written about prosecution elsewhere. But if the M’Naughten rules are still law, then “every man is presumed to be sane and responsible.” So why do we get cases of police or CPS saying that because someone is mentally ill they can’t be prosecuted “because we can’t prove the mens rea” or “because he lacks capacity”. Is mens rea
R v BURKE
The recent case of R v MB (2012) is interesting to consider: not because of insanity specifically – MB was found unfit to plead – but because the judgement examines the relationship between the two elements of an offence and is of relevance to how the law views the two. A quick reminder for those who may not have read earlier posts or would benefit from a reminder: all criminal offences involve an ‘act done’ – the actus reus; and the ‘guilty mind’ – the mens rea. For example, in an assault trial it would involve proving a punch thrown (the actus reus) and an intention to cause fear of unlawful violence (the mens rea). So for example, if a police officer punched someone (using reasonable force) in order to prevent a crime, the officer’s force would not be ‘unlawful’ and therefore the mens rea element of assault is not complete and the officer would be not guilty of assault.
MB, who suffers from Asperger’s syndrome, was arrested and prosecuted for voyeurism under the Sexual Offences Act after he lay on his back in a swimming pool changing area and was alleged to have looked under the dividing panels into the adjacent cubicle. A mother was changing her two youngs boys and the children were naked at the time. Having been found unfit to plead, the court had considered whether he had committed the ‘act done’. In other words, they had to consider the act of the offence and seperate it from the mental elements. If a court are satisfied of the ‘act done’ in the case of someone who is unfit to plead, they can still impose certain orders, for example a restricted hospital order under the Mental Health Act (s37/41). Because this was a sexual offence, they could also impose a requirement to comply with the ‘Sex Offenders’ register’ and impose a Sexual Offences Prevention Order (for example, to ban someone from visiting communal swimming pool changing areas or to at least impose conditions or restrictions on those visits.)
To convict someone of voyeurism it must be proved that not only that they looked at someone in circumstances where that person had a reasonable expectation of privacy, but that they did so for the purposes of sexual gratification. So in the MB case, having been found unfit to plead, the judge directed the jury that they need only be satisfied that he lay on the floor and looked, he did not direct that the extra element of the offence was complete – the part about “purposes of sexual gratification“. The Court of Appeal ruled that to prove the act was done, it was necessary in this case to prove MB was seeking sexual gratication. As they were not directed to do so, the jury had not determined this, and therefore the finding that MB had ‘committed the act’ was overruled. Therefore, so were various orders imposed upon him.
THE LAW COMMISSION
Today I attended an event hosted by my local CPS which involved a presentation by Professor David Ormerod from the University of London on insanity and automatism. Prof Ormerod is a Law Commissioner and currently undertaking a scoping exercise on the law relating to these areas. Within a month his team at the Law Commission will publish a scoping document containing 75 questions, not all of which will be of interest or relevance to all, but they seek the views of anyone and everyone on the subjects raised. All of this, is with a view to making suggestions to the Ministry of Justice about whether the law on insanity (and automatism) needs to be reformed; and potentially how. I encourage you to look at the Law Commission’s website and to contribute your experience where appropriate.
Incidentally, M’Naghten was arrested and charged; appeared and committed, tried and acquitted all within two months of the incident – it may be the Victorians were on to something after all?! And had these rules been in place, he’d have been found guilty.