The Rules Governing the Insanity Defence in Order to Determine When a Person Should Not Be Criminally Liable - Essay Example

? Critically evaluate the rules governing the insanity defense in order to determine when a person should not be criminally liable because of their mental condition at the time they committed an alleged offence Name Law Institution Tutor Date Introduction Is insanity defense viable? Insanity defense can be dated back to the biblical times and can be attributed to have emerged from a myth that mentally ill individuals were not to be held responsible for act committed especially if the acts committed by a sane person would have been criminal. However, this defense took shape in the modern sphere in 1843 in the Daniel M’Naghten1 case. The court found him insane whom in an assassination attempt to Robert Peel the British Prime Minister, mistakenly killed his secretary. This led to the formation of strictures whereby it was avowed that a defendant was required to have a mental condition or illness and even retardation that was required to be severe to an extent that the defendant had no insight as to the quality and nature of the act committed without the knowledge that the act was wrong. English law has reviewed the concept of insanity defense and is an area rich in evidence especially with reference to decided cases evaluating this defense. In this regard, this paper will critically analyze the insanity defense according to English law. Changes that have been made to the insanity defense will also be delineated and the paper will conclude with an assertion if insanity defense still exists. Body Critical Analysis and Determination of Liability Aspect To begin with, the English law stipulates that prior to passing judgment on an individual; the court has the responsibility of fulfilling two major components. Firstly, the court needs to prove actus reus which delineates that the defendant engaged in the conduct that was illegal as it was against the requirements of the law. Secondly, the court needs to prove mens rea illustrating the criminal intent in the act committed by the defendant. This is diversified in different courts as pertains to sanctions imposed. This shows that will is inculcated in criminal law illustrating responsibility of the defendant for his own behavior. However, the insanity doctrine precludes individuals from being responsible of their acts if they suffer from a mental illness that greatly hampers their ability to make concrete decisions (cognitive ability) or capacity to control behavior (volitional abilities) to an extent that their will becomes compromised.2 Insanity in English law is viewed from three main aspects. The first aspect entails insanity prior to the trial where despite the offender being in custody, he is insane. The English law requires that the Home Secretary detains the insane defendant immediately and receives a confirmation of insanity from two psychiatric doctors as pertains to the mental status of the defendant. The second clause of insanity is inculcated in unfitness of the defendant to plead following the defendant presenting with any of the six considerations stipulated under3. One consideration is the inability of the defendant too understand the charges, also inability to plead guilty or not and inability to challenge jurors. Consequently, inability to instruct counsel and instruct solicitors is also considered. Moreover, the inability of the defendant to follow proceedings and to give evidence in his defense is also reviewed.4 See R v Pritchard5and M (John)6. Following an assertion that the defendant is unable to plead, a second jury is usually set up determining if the defendant is guilty of actus reus. However, if the jury is convinced that the defendant is not liable for actus reus the defendant is acquitted. This cannot therefore lead to criminal conviction and hence the defense illuminating diminished responsibility is not viable as was the ruling in the case of Pierre Harrison ANTOINE v The United Kingdom7. The third aspect that inculcates insanity is insanity as the time of the offense. The major case that is used in this third aspect is the M’Naghten case that led to the adoption of the M’Naghten rule which asserts that at the time of defendant committed the offense; it must be proved that the defendant had a defect of reason. Consequently, the defect in reasoning needs to have resulted from a mind disease and the defect needs to have altered the insight of the defendant and he or she was not aware that the act he committed was wrong. The case of R v Clarke8 asserts that it needs not be mere absent mindedness and forgetfulness and it need to be proved that the defendant suffered from a defect of reason. Additionally, the disease of the mind needs to have caused the insanity inculcating any diseases that may alter the mental functioning of an individual. The English courts have gone ahead and classified disease that can be categories as being diseases of the mind as rulings made in relevant cases. In the case of R v Kemp9 it was ruled that arteriosclerosis qualified to be a disease that altered the mental functioning of an individual. Consequently in the cases of Bratty v A-G for NI 10; R v Sullivan11 epilepsy was inculcated as a disease that would alter the mental functioning of an individual and thus an epileptic defendant would use the insanity defense. Moreover, sleepwalking was ruled as a factor that altered the mental functioning of an individual and qualified as a mental defect as was ruled in the case R v Burgess12. Hyperglycemia resulting from diabetes is also classified as a disorder that can alter the mental functioning of an individual as was decided in the case of R v Hennessy.13 English law goes ahead and inculcates outside sources which might alter the reasoning capability of an individual giving rise to a “non-insane automatism”. This is a form a defense that translates to the defendant being acquitted without necessarily requiring attachments from an order in the hospital. An example is hypoglycemic state in a defendant following an insulin overdose in a diabetic patient as was decided in the case R v Quick. 14 Subsequently, drugs and drinks have also been classified as “non-insane automatism’ as was decided in the cases of R v Burns 15 and the case of R v Roach 16. In finality as the third aspect illustrated, there needs to be proving that the defendant did not know that the act he or she was committing was wrong. However, if it is proved that the defendant knew that what he was doing was wrong even though they believed that what they were doing was not morally upright, they cannot use the insanity defense. This was affirmed in the cases of R v Codere17; R v Windle18and R v Johnson19. Provocation is a concept that has revolved the legal system in the United Kingdom for a long time and serves as the basis of determination of liability aspect with reference to the insanity defense. Reference has been made especially as pertains to women who end up killing their abusive patterns and is an issue that reviews the propositions by the government and those made by the Law Commission. Though the United Kingdom government has not embraced the provocation concept, the Law Commission asserts that there needs to be provisions as pertains to individuals who kill secondary to desperation and fear especially following long term abusive relationships. With this regarded, cases conducted in English law will be discussed with an aim of analyzing and determining the liability aspect. 20 Provocation has been used as a defense and has successfully been used by majority of women and has ended up having lesser sentences of manslaughter compared to murder that calls for a life sentence. This therefore necessitates the need to understand provocation which has been defined21that the jury must perceive that there was provocation that culminated to the defendant loosing self-control. Having garnered enough evidence, it is upon the jury to decide if the same conduct depicted by the defendant would have been depicted by and individual who was reasonable. This serves as a basis to determine if indeed provocation can serve as a basis of insanity defense. See R, v A22; R, v Ahluwalia23. Many misconceptions revolve around the insanity defense and it has thus been documented as among the most controversial issue as pertains to criminal law. Calls have been made to the abolishment of the law and majority of reforms have been made with reference to the insanity defense liability. There is fear among the public and the judiciary that the insanity law may be overused especially since it has a narrow scope. Secondly, controversy surrounds the use of the insanity defense in exclusively crimes that are regarded as being heinous. Consequently, there controversy that defendants who are acquitted on the prospects of insanity simply get away with their crimes and are released more quickly than other people. Consequently, these people who are let loose are regarded as being dangerous yet they are let loose and not taken to jail to serve a sentence on the basis of insanity. However, these have been asserted by researches as flawed beliefs as pertains to the insanity liability defense.24 Criminal liability on an insanity defense is an issue that is also faced with plenty of ethical challenges. These challenges exist in the psychiatric that is taking care of the defendant. Mental health conditions face ample challenges to the psychiatrics as a result of their volatility and the sifting of the symptoms with which the clients present with. There are clients who are being treated for a mental disorder and upon committing a murder crime, this either aggravates or makes their condition better. There are clients whose symptoms disappear following the crime and the psychiatric is faced with an ethical dilemma of whether to disclose this information to the court or not. Consequently, some crimes trigger an outburst in mental health symptoms in patients who despite recovering engage in a criminal activity. Consequently, the defendant may have had the illusions and shared them with the psychiatric during a counseling session. The psychiatric faces an ethical dilemma on the information to use in court as pertains to assessing the criminal liability of a client on insanity defense.25 Moreover, the insanity defense has been challenged as pertains to the viability and generalization of the defense. Critics argue that the M’Naghten verdict was made on the basis of the political climate and thus questions the viability of the insanity defense. This defense was arrived at following attempt of assassination of the prime minister and the verdict was aimed at quelling the situation that existed at the point in time. This therefore questions the viability of generalization of the ruling and using the insanity defense in other cases that are not politically related. Consequently, feminists have avowed that the ruling was gender biased is meant to decide cases where men are convicted and not in cases where women are convicted. This is evidenced in cases where insanity defense has been challenged in cases of postpartum psychosis women who use the insanity defense umbrella as defense. This therefore illustrates that insanity defense is a verdict that was more of politically generated rather than judicial generated and thus should not be a viable measure.26 Changes that have been suggested to the rules and whether insanity defense is likely to continue to exist Criticism of the M’Naghten rule It has been avowed that there is an anomalous burden that has been placed on the necessity to provide proof that reflects insanity as a viable defense. In comparison to other defenses, the defense usually has the responsibility of providing evidence that exonerates the defendant and id thus aimed at proving the innocence of the defendant. However, with reference to the insanity defense, the defense is aimed at providing evidence that does not exactly exonerate the defendant but shows that the defendant was insane and was not aware of the activities that he committed at the time and thus should not be held viable for the crime committed. Secondly, the M’Naghten rule uses the term “wrong” to assert that upon the act committed by an upright individual, it appears wrong to the society. An Australian High court ruled that the term wrong is a debatable concept and should be held in the context of being morally wrong and there is no measure to delineate how wrong an activity can be. This is since the society is bestowed with the responsibility of developing rules and regulations that need to be followed by the society and failure leads to adverse consequences. However, an appropriate measure to evaluate the “wrong” clause is vague thus diminishing the usefulness of the clause. See R, v Windle27. Critics avow that the law is not justified to let lose people who know their actions are wrong but go ahead and commit the offense and then use the insanity defense to garner acquittal. This therefore invalidates the insanity defense and thus need for lack of its continued existence in the English Law. 28 Moreover, criticism to the M’Naghten rule has been based on the theory on which the rule is anchored. The rule is anchored on the concept of partial insanity, a model that has been outdated and has passed the test of time and thus should not be used in English law. This is challenged by the advances that have been made in the psychiatric field as pertains to treatment modalities. This has made insanity a vague defense since every individual can have access to psychiatric treatment and thus the sickness should not be used as a cover to garner acquittal for crimes committed. See Hill 29; Re Bohmann, Caesar and Watmough v Bohrmann30. Consequently, the insanity defense is anchored on cognitive factors of an individual since mental disorders impair the cognitive function of an individual and thus generation of an insanity defense. This rule is depicted as being flawed since it does not inculcate the irresistible impulse of an individual also known as the volition concept and thus is not a viable measure of insanity defense. This is since cognitive function of an individual is not the only prerequisite that determine the functioning of an individual. Though the English law has not yet incorporated the irresistible impulse clause, this has been implemented in several of jurisdictions in North American commonwealth countries. This therefore challenges the viability of English law using insanity defense which solely relies on the impaired cognitive function of an individual. Irresistible impulse is another change that was implemented into the insanity defense with an aim of inculcating advanced psychiatric treatment. Previously, the M’Naghten rule asserted that an individual would not be held liable for a crime that he or she did not know was wrong as a result of a mental illness. However this rule was being challenged prompting the need to revise this rule by embedding impulse into the insanity defense. Psychiatrics asserted that mental illnesses could lead to the inability of an individual to resist the impulse to commit murder and thus un-willfully commit the heinous act. This was the first revision to the prevailing test of impaired cognitive ability and it did not go uncontested. Critics asserted that every human being had impulse and thus despite having a mental condition or not, this was a normal phenomenon for every human being. It was avowed that the society required individuals to control their impulses failure to which they would be held responsible for the consequences of their impulsive behaviors. This is since everyone can use inability to control impulse as a defense and no measurement tool exists through which ability to control impulses can be evaluated and appropriateness determined. However despite the loopholes in the Irresistible Impulse revision, at the commencement of the 20th Century, one half of the states had adopted it in supplementation to the M’Naghten rule.31 Objectification of the insanity defense is another view that critics use to criticize the viability and the effectiveness of the M’Naghten rule. The conditions which are used as a clause to insanity defense when viewed in medical terms are not subject to insanity and cannot be classified as mental disorders. One such medical condition is an epileptic fit or an individual who has had a hyperglycemic coma. These are not mental health conditions but are rather metabolic imbalances that predispose an individual to hallucinations and delusions. This means that the insanity defense is objectification of medical conditions and is not a mental disorder per see. Through this evidence, there is justification to review the loopholes that exist in the M’Naghten rule and modify the rule to incorporate only mental disorders and not general medical conditions. This incongruence has been asserted by the House of Lords and also by the Court of Appeal although they have asserted that it is indeed beyond their jurisdiction to alter that law and thus it is upon the legislation to make another rule and abolish the insanity defense since it is flawed with very many shortcoming and has been passed by the increasing wake of advancement in psychiatric treatments. See R v Sullivan32; R v Brugress33 The Butler Committee in English law was the major reform made in 1975 that entailed remodeling the insanity defense. This committee recommended the inculcation of a new clause “not guilty by reason of mental disorder”. However, this defense rather than the insanity defense could be returned in two circumstances. The first circumstance entailed the inability of the defendant to achieve the requirements of the mens rea as a result of the mental condition that the defendant was suffering from. Consequently, another provision for return was where the defendant had insight of his actions though he had a severe mental disorder. These are the two requirements that had to be fulfilled for the not guilty by reason of mental disorder. This incorporates two ideas that did not exist in the M’Naghten rule: “severity” of the mental disorder. The defendant does not have to only suffer from a mental disorder but needs to be suffering from a severe mental disorder. Consequently, the defendant needs to have insight that the action was wrong but his cognition impaired and thus leading to the jury arriving a ruling of not guilty by reason of mental disorder. 34 The35 is another change that has taken place with reference to the insanity defense and was developed in place of s. 4 Criminal Procedure (Insanity) Act 1964. Section 1 deals with acquittals made on insanity grounds, it asserts that unless there is oral or written evidence from two medical practitioners who are registered, the jury will not return a verdict with reference to Trial of Lunatics Act 1883. Also, with mandate from the Mental Health Act of 1983 as pertains to requirement that proof is sort regarding the mental condition of the defendant and this information will be used to grant acquittal to the defendant on the basis of insanity. Section 2 deals with findings that illustrate defendants are not fit to plead while section 3 describes the powers that are conferred to individuals who are not guilty by virtue of insanity. Section 4 of the act outlines the appeal provisions for such defendants while section 5 repeals the orders under the 1968 and 1964 Act with section 6 illuminating interpretation of the Act. Moreover, section 7 describes the consequential and minor amendments with section 8 entailing the repeals, savings and transitional provisions. The Act also has schedules with schedule one outlining a repeal of orders that are required for admission and schedule 2 describing repealed treatment and supervision of orders. Schedule 3 contains consequential and minor amendments with schedule 4 outlining repeals available as pertains to the unfitness of insane defendants to plead.36 Changes to the insanity defense rule can be traced back to before 1970s following an outcry among the public with reference to the NGRI clause which has become rampant in the recent past. During the 1970s convict spent many years in criminally insane institutions and some even ended up spending a lifetime in these institutions. It was regarded that by acquitting the mentally ill, this was a sign of compassion since they were not to be held responsible for acts they were not aware they had committed. This was a source of solace for the public since they were sure that the acquitted person in mental institution would remain there for a long time and would not be walking free in the streets to commit crime again. However, 20 years since then has an increase in the NGRI’s form the mental institutions. This has been supported by reference to two main factors. The first factor asserts that the insanity individuals acquitted deserve the same equal protection and due process as is the constitutional right of every citizen. This further makes it imperative to keep the individuals longer in the mental hospitals hence the need to release earlier. Secondly, the advances being made in psychiatric treatment have contributed to the short time that the acquitted convicts on insanity defense spend in the mental hospital. This has led to an uprising in the number of NGRI who are walking down the streets with the same privileges as normal citizens as though they had never committed a crime. This has led to the public being less receptive to the NGRI verdict and hence necessitating the review and adjustments to be made in the insanity defense. 37 Medical testimony is another change that has occurred in the insanity defense. Prior to the 19th century a psychiatric was no required to give any testimony as pertains to the mental status of the defendant. Judgment as pertains to the mental status of the defendant was made by the defense counsel. This was not made on the basis of a medical examination or test but was based on behaviors of the defendant that led the counsel to believe that the defendant’s cognitive ability was impaired. Consequently, psychiatric health was still at its infancy stages and was regarded as incurable hence majority of the physicians were not educated enough to provide evidence. However, following the recent advancements in mental health and psychiatry, a physician is required to provide results of a mental examination and test carried out on the defendant to assert that the defendant is indeed insane. This therefore illustrated that the insanity defense has changed to incorporate the physician testimony which did not previously exist.38 Conclusion Insanity defense is one of the issues that have a historical repeal in English Law. This is attributed to the history of mental health illnesses which has been there ever since the existence of man and till 1843 when it was first used as a defense. The English requires that prior to passage of judgment on a defendant, the jury needs to prove actus rea which entails that the defendant engaged in a criminal act and mens rea outlining that the defendant had criminal intention in committing the act. However, as pertains to the insanity defense, the jury needs proof that the defendant had his cognitive ability impaired by a mental disorder and that this clouded his judgment and was not aware of the criminal act committed. This entails the M’Naghten rule that was developed and saw the genesis of the insanity defense. As pertains to the liability aspect of the insanity defense, English Law delineates three conditions that the jury must ascertain to acquit the defendant. To start with, there has to be proof that the defendant had altered mental capacity prior to the trial, during the trial or had altered mental health while committing the offense. Provocation has also been used in English law as pertains to liability aspect in the insanity defense. Moreover, diseases which qualify to serve as having altered the mental functioning of the defendant have been stipulated in decided case and include: epilepsy, hyperglycaiemia, sleeping sickness, and atherosclerosis. Moreover, English Law has incorporated automatism which inculcates disorders outside but that can impair the mental functioning of an individual. Non-insane automatism includes hypoglycemia from increased insulin use and also excessive drugs and drinks intoxication. Various changes have taken place in English Law with reference to insanity liability. The first change is the expertise in psychiatric health that has led to improvement in treatment modalities for clients suffering from mental illnesses. This has led to the inculcation of the equal protection clause and due process in the treatment of defendant. Moreover, it has led to the embedding of medical witness in cases dealing with insanity as a form of defense. Also the Butler Committee is another change that has taken place as pertains to the insanity defense. This has inculcated the irresistible impulse which lacks in M’Naghten rule. This is since impulse determines the ability to control insurgences and provocations. Moreover, the Butler committee also included the term severe in defining mental defect since following the advancement in mental health treatment, only a severe case can lead to commitment of a crime. In finality the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 has been developed that not only illustrates the unfitness of an insane defendant to plead, but also has chapters and schedules that expound on the criminal procedure to be followed. The evidence on the liability aspect and changes that have taken place reveal that the insanity defence no longer exists as it has been passed by time. In its place, the English Law has developed Acts that currently review the “not guilty by reason of mental disorder” clause. BIBLIOGRAPHY A. CASES Bratty v A-G for NI [1963] AC 386 Daniel M’Naghten [1843] UKHL J16  Hill (1851) 2 Den 254 M (John) [2003] EWCA Crim 3452 Pierre Harrison ANTOINE v The United Kingdom (2960/00) [2003] ECHR 709 R v A, [2001] UKHL 25 R v Ahluwalia, [1992] EWCA Crim 1 R v Brugress [1991] 2 All ER 769 at 778, R v Burns 58 Crim App R 364 R v Clarke [1972] 1 All ER 219 R v Codere (1916) 12 Cr App R 21 R v Hennessy [1989] 1 WLR 287 R v Johnson [2007] EWCA Crim 1978 R v Kemp (1957) 1 QB 399 R v Pritchardand (1836) 7 C&P 303 R v Quick [1973] 3 WLR 26 R v Roach [2001] EWCA Crim 2698 R v Sullivan [1984] AC 156 at 173, [1983] 2 All ER 673, per Lord Diplock R v Windle [1952] 2 QB 826 Re Bohmann, Caesar and Watmough v Bohrmann [1938] 1 All ER 271 B. STATUTORY LAW Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 Draft Criminal Code Bill (1989) (Law Com. No. 177) Homicide Act 1957 S3 s. 4 Criminal Procedure (Insanity) Act 1964 C. JOURNALS A. Bickle ‘Proposed reforms to partial defences and their implications for mentally disordered offenders’ Journal of Mental Health Law 38; 2008: 38-52 B. Hale, Mental Health Law (London, Sweet & Maxwell 2010 5th edn) Mackay “Fact and Fiction about the Insanity Defence” [1990] Crim LR 247. Mackay The Operation of the Criminal Procedure (Insanity) Act 1964 N. Harford-Bell and A. Bartlett, ‘Mental Health Defences: the relevance of mental health issues to a legal understanding of crime’. in Bartlett, A and McGauley, G (eds) Forensic Mental Health: concepts, systems and practice (Oxford, Oxford University Press 2010) R. Borum, & S. Fulero, “Empirical research on the insanity defense and attempted reforms: Evidence toward informed policy.” Law and Human Behavior, 23(3); 1999: 375-93 W. Reid, “The Insanity Defense: Bad or Mad or Both”, Journal of Psychiatry Practice, 2000: 1-4. Read More