by Dr JONATHAN SHAPERO, consultant forensic psychiatristEnglish law has long accepted the principle that some offenders are not fully responsible for their actions when committing crimes. Edward II declared that under common law a person was insane if their mental capacity was “...no more than that of a Wild Beast”.
The first known transcript of an insanity trial is dated 1724, but until the Criminal Lunatics Act 1800 there was no specific provision for disposing of insane offenders. The 1800 Act provided for their indefinite detention, but it was several more years before that detention was directed towards hospital rather than prison.
The age when a person first becomes criminally responsible is held to be 10 under English law and recent publicity in the case of Jon Venables has once again raised the question of whether this is appropriate.
When a mentally disordered person appears before an English Court the first question that must be answered is: “is he/she fit to plead?” That is determined by deciding if they understand the charge, know the meaning of ‘guilty’ and ‘not guilty’, can meaningfully instruct their lawyers, follow a trial or challenge a juror.
There is then the issue of how, and to what extent, mental disorder may affect criminal responsibility. In England in the late 18th and early 19th century there was a series of celebrated trials where defences were raised claiming that the defendants’ criminal responsibility was impaired by reason of mental disorder. After the trial of Daniel McNaughton (sometimes spelled M’Naghten) the ‘insanity’ rules were codified and became known as the McNaughton Rules. Those are the same rules we sometimes use even today to determine the issue of criminal responsibility in a few cases involving mental disorder.In 1843 McNaughton was tried for the murder of Edward Drummond, who at the time was the personal secretary to the Prime Minister Sir Robert Peel (ironically credited with the founding of the first ‘modern’ state-run police force). McNaughton suffered from delusions which led him to plan Peel’s murder by shooting him, but he mistook Drummond for the Prime Minister. Following the trial the House of Lords asked a panel of judges to provide guidance for juries who consider cases where a defendant pleads insanity, and they produced the McNaughton Rules.
The rules state: “To establish a defence on the ground of insanity it must be clearly proved that, at the time of committing 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 that what he was doing was wrong.”
A successful defence using the rules leads to acquittal with the special verdict ‘not guilty by reason of insanity’, and provides an interesting case where, despite the acquittal, the law still has a major say in the subsequent disposal of the accused. Under the most modern version of the law, the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, there are three possible disposals: they are absolute discharge, a Community Supervision Order or a Hospital Order (with or without a Restriction Order which effectively provides indefinite hospitalisation).
Psychiatry and the law have always been uneasy bed-fellows, but somehow we still get along. For example, the term, “insanity” is no longer used in psychiatry but is still enshrined in the “Insanity defence”. However both Psychiatry and the Law have both moved on (a little) since 1843, and while there are still a few cases each year where the Insanity defence is raised, there are also many other ways of dealing with mentally disordered offenders.
For homicide cases we have the defence of diminished responsibility defined in Section 2(1) of the Homicide Act 1957. This states: “Where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”
A specialised version of the diminished responsibility defence is enshrined in the Infanticide Act of 1938, which allows for a woman who kills her own child when it is aged less than one year, if she is mentally disordered as a result of the pregnancy or childbirth, or the effects of lactation.