Undiminished Responsibilities

I read a throw-away remark on Twitter this week, about mental health professionals – specifically psychiatrists – being the experts to determine whether or not someone’s mental health condition has caused offending behaviour or whether it was quite coincidental. This self-evidently obvious statement is, in fact, quite wrong! It is, ultimately, a matter for courts, not psychiatrists to determine such things. Specifically, it is a matter for inexpert juries of lay people who may have to wade through complex, contradictory material relating to psychiatric diagnosis and reach a view about what was going on inside someone’s head at the time of an offence.

We’ve seen this in several fairly high-profile trials over the last year or so – here are just a couple of examples –

1. Nicola EDGINGTON – prosecuted for murder and attempted murder whose offer to plead guilty to manslaughter on the grounds of diminished responsibility was rejected and a full murder trial held. The jury rejected her argument and convicted her of murder.
2. Aras HUSSEIN – prosecuted and tried for murder, also having offered plead guilty to manslaughter on the grounds of diminished responsibility. The jury found him guilty of murder and he was sentenced to prison despite acceptance that he had serious mental health problems.

Meanwhile, the Appeal Courts also have a role to play in getting this right. It has been known that following convictions for murder, defendants return to the higher courts to present new evidence. In the infamous case of farmer, Tony MARTIN – the man who shot a burglar in Norfolk – the Court of (Criminal) Appeal substituted a conviction of manslaughter on the grounds of diminished responsibility after hearing new evidence. This was also true of James PETROLINI, who was convicted of murder along with another man. The irony of this latter case, is that upon the Appeal succeeding, his prison sentence was replaced by a restricted hospital order. The timing meant that as his accomplice was released from 18yrs in prison, he was moved onto an order which guaranteed his indefinite detention until the psychiatrists in charge of his care and the Ministry of Justice were satisfied it was safe and appropriate for him to be released!


So the law has a suite of checks and balances to keep challenging outcomes and a range of verdicts to suit different kinds of relationship that some defendant’s mental health has to their offending. We saw during 2013 that the man who attacked PC Adam KOCH in a Birmingham mosque was found not guilty of attempted murder by reason of insanity. This occured relatively soon after another attack against police officers in London led to the conviction of Christopher HAUGHTON for the same offence of attempted murder, despite the fact that he was so unwell that he was eligible for detention under the Mental Health Act from the point of the committing the offence, right through to sentencing. In other words there are three kinds of relationship between offending behaviour and mental health, according to the law —

  1. Not guilty by reason of insanity – a defendant is not criminally convicted for their actions.
  2. Guilty on the grounds of diminished responsibility (alternative only to a charge of murder) – responsible for actions, although liability is diminished because of mental ill-health.
  3. Guilty as charged – fully responsible for actions, notwithstanding evidence of mental ill-health.

It is a feature of law, however, that whichever of the outcomes is reached, there is just one likely outcome: a restricted hospital order. This outcome is also likely if the prosecution case did not get as far as a trial because of a defendant having been found unfit to plead or stand trial. It remains a likely outcome for convicted defendants, too – only those convicted of murder will be sentenced to a mandatory prison sentence and even then: there is still provision within the Mental Health Act to transfer such prisoners to hospital, if required.

The point of this short post is twofold — to ram home again and again, that all of these complex decisions are legal issues for juries, courts and legal officers, not medical issues for psychiatrists. Of course, it is right and proper that those providing care for vulnerable people have a say in the process but we also know that psychiatric opinion can differ and that the resolution of all of this is the trial process and the ultimate arbiter: a jury. The second purpose is to show that when trusted to get on with it, juries sometimes go with the flow, the sometimes forge their own path through the evidence and regardless of which, the higher courts exist to challenge outcomes or hear new evidence.

I rather like our legal system in this respect – I’d even say I’m very proud of it and we should remember: it is the basis for the mental health and criminal justice interface the world over.

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


3 thoughts on “Undiminished Responsibilities

  1. Your post raises some interesting issues around whose role it is to decide in court the link between mental health issues and offending behaviour. However, I think it’s also worth mentioning that the view that psychiatrists are the ‘experts’ to make decisions in this area is perhaps not representative of the profession as a whole. As a student nurse I spent time on clinical placement in a secure hospital for offenders with mental health difficulties, and this sometimes involved escorting clients to and from court, and being present during the trial. I was impressed by the honesty and candour of the psychiatrists under cross-examination in sometimes quite complex cases that involved deciding whether the defendant’s mental health difficulties meant that they were not criminally responsible for their actions when the offence was committed. Some would even go so far as to admit they didn’t know the answers to some of the questions posed by prosecution barristers, due to the inexact nature of psychiatric diagnosis and difficulties in making any 100% definitive assertions as to any causal links in offending behaviour.

    Tweets such as the one you mention reflect a pompous ‘psychiatrist knows best’ attitude and deserve to be criticised, but in my experience, not all forensic psychiatrists have the same attitude!

  2. This is a fantastic article! I am starting my law degree in September, and I am aspiring to become a lawyer, specialising in mental health law. I think our legal system is getting there with regards to the correct relationship between the law and mental health, for example, the new project of putting a mental health nurse in every police station. However I do believe there is a long way to go, we have learnt so much more about mental disorders over the last 20 years, however the laws surrouding these issues seem slow to change, and so they seem outdated.I also believe that definitions in the law of what constitutes ‘insanity’ or ‘diminished responsibility’should match those given by a mental health expert, rather than just a definition created by the courts.

  3. 21 April 2014

    Dear Mental Health Cop

    I agree with you that the Jury is very important indeed. Without it there can be total miscarriages of justice, irrespective of psychiatric views, the jury can make their own minds up.

    Thank you so much

    Rosemary Cantwell

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