Insanity in English law
Encyclopedia
English criminal law
English criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community...
based on the idea that the defendant was unable to understand what he was doing, or, that he was unable to understand that what he was doing was wrong.
The defence comes in two forms; where the defendant claims he was insane at the time of the crime, and where the defendant asserts he is insane at the time of trial. In the first situation, the defendant must show that he was either suffering from a disease which damaged the functioning of the mind and led to a defect of reason that prevented him from understanding what he was doing, or that he could not tell that what he was doing was wrong. In the second situation, the test is whether or not the defendant can differentiate between "guilty" and "not guilty" verdicts, instruct counsel and recognise the charges he is facing. If successful, he is likely to be detained under the Criminal Procedure (Insanity) Act 1964, although judges have a wide discretion as to what to do.
Use of insanity as a concept dates from 1324, and its criminal application was used until the late 16th century in an almost identical way. The defence, if successful, either allowed the defendant to return home or led to him being incarcerated until he was granted a royal pardon; after 1542, a defendant who became insane prior to the trial could not be tried for any crime, up to and including high treason. During the 18th century the test to determine insanity became extremely narrow, with defendants required to prove that they could not distinguish between good and evil and that they suffered from a mental disease which made them incapable of understanding the consequences of their actions. The current wording comes from the M'Naghten Rules
M'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...
, based on the trial of Daniel M'Naghten
Daniel M'Naghten
Daniel M'Naghten was a Scottish woodturner who assassinated English civil servant Edward Drummond while suffering from paranoid delusions...
in 1843.
The defence of insanity has been subject to intense criticism, particularly from the Butler Committee, which noted that the rules were "based on too limited a concept of the nature of mental disorder", highlighting "the outmoded language of the M'Naghten Rules
M'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...
which gives rise to problems of interpretation" and that the rules were "based on the now obsolete belief in the pre-eminent role of reason in controlling social behaviour... [the rules] are not therefore a satisfactory test of criminal responsibility". The Committee proposed reform of the law in 1975, followed by a draft bill from the Law Commission
Law Commission (England and Wales)
In England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
in 1989; so far, these have both been ignored by successive governments.
History
The idea of insanity in English law dates from 1324, when the Statute de Praerogativa Regis allowed the King to take the lands of idiots and lunatics. The early law used various words, including "idiot", "fool" and "sot" to refer to those who had been insane since birth, and "lunatic" for those who had later become insane, or were insane with some lucid intervals. In the criminal law, insanity was used as a defence in a roughly identical way from this point until the late 16th century; if an insane person commits a crime, he was not punished in the same way that a sane felon who committed the same crime would be. This was for several reasons; firstly, the cruel punishment usually meted out to felons to set an example would not have the same effect on the insane. Secondly, as felonies required a mens reaMens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
, an insane person could not be guilty because they did not have the capacity to hold a mens rea. Thirdly, the phrase furiosus solo fitrere punitur was used; "a lunatic was punished by his madness alone".
In many cases, the insane defendant was released and allowed to go home; in some, he was held in prison until the King decided to grant him a pardon. A lunatic who became insane prior to the trial could not be executed, nor, after 1542, trialled for felonies up to and including high treason. It was then established that somebody found not guilty due to insanity should be immediately released; up until the beginning of the 19th century, this was almost all that could be done, although the Vagrancy Act 1714 allowed two Justices of the Peace
Justice of the Peace
A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions...
to confine a dangerous lunatic. The test of insanity was extremely narrow; defendants had to prove that they were incapable of distinguishing between good and evil, and, following the trial of John Firth in 1790, that they suffered from a mental disease which made them incapable of "forming a judgment upon the consequences of [their] actions".
Trial of James Hadfield
On 15 May 1800, James HadfieldJames Hadfield
James Hadfield or Hatfield attempted to assassinate George III of the United Kingdom in 1800 but was acquitted of attempted murder by reason of insanity....
attempted to assassinate George III of the United Kingdom
George III of the United Kingdom
George III was King of Great Britain and King of Ireland from 25 October 1760 until the union of these two countries on 1 January 1801, after which he was King of the United Kingdom of Great Britain and Ireland until his death...
; he had come to believe that the second coming of Christ would be brought about by his own death, and therefore attempted to be judicially executed. Hadfield approached the King in the royal box at the Theatre Royal, Drury Lane
Theatre Royal, Drury Lane
The Theatre Royal, Drury Lane is a West End theatre in Covent Garden, in the City of Westminster, a borough of London. The building faces Catherine Street and backs onto Drury Lane. The building standing today is the most recent in a line of four theatres at the same location dating back to 1663,...
, firing a pistol at him; however, the King was bowing to the audience at the time, and the shot passed over his head. He was tried on 26 June 1800 at the Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
, and his counsel, Thomas Erskine
Thomas Erskine, 1st Baron Erskine
Thomas Erskine, 1st Baron Erskine KT PC KC was a British lawyer and politician. He served as Lord Chancellor of the United Kingdom between 1806 and 1807 in the Ministry of All the Talents.-Background and childhood:...
, argued that although Hadfield's planning of the attack meant that the normal defence of insanity would not have been sufficient, the true test of insanity is delusions and "frenzy or raving madness", which Hadfield suffered from. Several medical experts testified that Hadfield's injuries at the Battle of Tourcoing, where he was repeatedly struck in the head by a sabre, had caused insanity, and Lord Kenyon
Lloyd Kenyon, 1st Baron Kenyon
Lloyd Kenyon, 1st Baron Kenyon, PC, SL, KC was a British politician and barrister, who served as Attorney General, Master of the Rolls and Lord Chief Justice. Born to a country gentleman, he was initially educated in Hanmer before moving to Ruthin School aged 12...
immediately sent the jury away to reach a decision. Their verdict was "not guilty; he being under the influence of insanity at the time the act was committed", the first time a jury had been asked to give a reason for their decision and the origins of the phrase "not guilty by reason of insanity".
The result of the case was the Criminal Lunatics Act 1800
Criminal Lunatics Act 1800
The Criminal Lunatics Act 1800 was a British Act of Parliament that required and established a set procedure for the indefinite detention of mentally ill offenders...
; Parliament, concerned that similar criminals could be allowed to go free, provided that somebody found "not guilty by reason of insanity" should be remanded in custody until granted a royal pardon. The 1800 Act also put limits on what crimes a defence of insanity could be used for. Prior to the Act, it could be used in any case, but the new legislation limited the defence to indictable offences
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
.
The M'Naghten Case
Daniel M'Naghten
Daniel M'Naghten was a Scottish woodturner who assassinated English civil servant Edward Drummond while suffering from paranoid delusions...
attempted to assassinate Robert Peel
Robert Peel
Sir Robert Peel, 2nd Baronet was a British Conservative statesman who served as Prime Minister of the United Kingdom from 10 December 1834 to 8 April 1835, and again from 30 August 1841 to 29 June 1846...
, Prime Minister of the United Kingdom
Prime Minister of the United Kingdom
The Prime Minister of the United Kingdom of Great Britain and Northern Ireland is the Head of Her Majesty's Government in the United Kingdom. The Prime Minister and Cabinet are collectively accountable for their policies and actions to the Sovereign, to Parliament, to their political party and...
. Approaching a man he believed to be Peel, M'Naghten fired into his back, in fact killing Edward Drummond
Edward Drummond
Edward Drummond was a British civil servant, and was Personal Secretary to several British Prime Ministers. He was murdered by Daniel M'Naghten, whose subsequent trial gave rise to the M'Naghten Rules, the legal test of insanity used in many common law jurisdictions.Drummond was a scion of the...
, Peel's secretary. Immediately arrested, he was charged with murder and trialled on 3 March 1843 at the Old Bailey
Old Bailey
The Central Criminal Court in England and Wales, commonly known as the Old Bailey from the street in which it stands, is a court building in central London, one of a number of buildings housing the Crown Court...
. He was assisted in his defence by two solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s, four barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s including Alexander Cockburn
Sir Alexander Cockburn, 12th Baronet
Sir Alexander James Edmund Cockburn, 12th Baronet Q.C. was a Scottish lawyer, politician and judge. A notorious womaniser and socialite, as Lord Chief Justice he heard some of the leading causes célèbres of the 19th century.-Life:Cockburn was born in Alţâna, in what is now Romania and was then...
and nine medical experts, along with eight lay witnesses. Both sides agreed that M'Naghten was insane; the question was what constituted a valid legal defence of insanity. The judges decided that "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 what he was doing was wrong", which was boiled down to "did the defendant know what he was doing, and if so, that what he was doing was wrong?". This established the M'Naghten Rules
M'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...
, which remain the principal method of deciding insanity in English law.
Trial of Lunatics Act 1883
The Trial of Lunatics Act 1883Trial of Lunatics Act 1883
The Trial of Lunatics Act 1883 is an Act of the Parliament of the United Kingdom, allowing the jury to return a verdict that the defendant was guilty, but insane at the time, and should be kept in custody as a "criminal lunatic"...
was the next development in the law, allowing the jury to return a verdict that the defendant was guilty, but insane at the time, and should be kept in custody as a "criminal lunatic". This Act was passed at the request of Queen Victoria
Victoria of the United Kingdom
Victoria was the monarch of the United Kingdom of Great Britain and Ireland from 20 June 1837 until her death. From 1 May 1876, she used the additional title of Empress of India....
, who, the target of frequent attacks by mentally ill individuals, demanded that the verdict be changed from "not guilty" so as to act as a deterrent to other lunatics; the phrasing of "guilty of the act or omission charged, but insane so as not to be responsible, according to law, for his actions." remained in use until the Criminal Procedure (Insanity) Act 1964.
Current law
Under the current law there are two applications of the insanity defence; where it is claimed that the defendant was insane at the time that he committed the crime, and where it is claimed that he was insane at the time of the trial and thus unable to effectively defend himself. The defence is most commonly used in the Crown CourtCrown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
, since it was previously believed that it required a jury; in DPP v Harper [1997], it was decided that the defence could also be applied in the Magistrates' Court
Magistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
.
Insanity at the time of the crime
Where the defendant is alleged to have been insane at the time of committing the offence, this issue can be raised in one of three ways; the defendant can claim he was insane, the defendant can raise a defence of AutomatismAutomatism (law)
-Definition:Automatism is a rarely used criminal defence. It is one of the mental condition defences that relate to the mental state of the defendant. Automatism can be seen variously as lack of voluntariness, lack of culpability or excuse...
where the judge decides it was instead insanity, or the defendant can raise a plea of diminished responsibility
Diminished responsibility
In criminal law, diminished responsibility is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental functions were "diminished" or impaired. The defense's acceptance in American...
, where the judge or prosecution again show that insanity is more appropriate. Whatever the way in which a plea of insanity is reached, the same test is used each time, as laid out in the M'Naghten Rules
M'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...
; "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 what he was doing was wrong".
"Disease of the mind" is not a medical term; it instead means that the defendant must show he was suffering from a disease which affected the functioning of the mind, which does not necessarily have to be a disease of the brain. This was confirmed in the case of R v Kemp [1957] 1 QB 399
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, where the defendant's arteriosclerosis
Arteriosclerosis
Arteriosclerosis refers to a stiffening of arteries.Arteriosclerosis is a general term describing any hardening of medium or large arteries It should not be confused with "arteriolosclerosis" or "atherosclerosis".Also known by the name "myoconditis" which is...
led to him assaulting his wife while unconscious. It must then be shown that this disease of the mind led to a "defect of reason"; that the defendant's ability to reason was impaired by the disease. Alternately, the defendant can try to show that he did not know "the nature or quality of his act or that it was wrong". The first requires proof that the defendant did not know what he was doing; that he had no awareness of what he was happening, that he was unaware of the consequences of his act or that he knew what he was doing, but was deluded as to the circumstances; for the latter, Jonathan Herring gives the example of a man who "thought he was killing a monstrous person when he was in fact killing a person". When arguing that the defendant was "not knowing the act was wrong", "wrong" is taken to mean "illegal", as set out in R v Windle [1952] 2 QB 826
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
.
Insanity at the time of the trial
If a defendant at the time of trial claims he is insane, this hinges on whether or not he is able to understand the charge, the difference between "guilty" and "not guilty" and is able to instruct his lawyers. If he is unable to do these things, he can be found "unfit to plead" under Section 4 of the Criminal Procedure (Insanity) Act 1964. In that situation, the judge has wide discretion as to what to do with the defendant, except in cases of murder, where he must be detained in hospital.Criticism and attempted reform
The law in this area is often criticised because it sets a legal standard for insanity, not a medical one. In R v Quick and Paddison [1973] QB 910Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, for example, the courts decided that an assault committed when the defendant was suffering from hypoglycemia
Hypoglycemia
Hypoglycemia or hypoglycæmia is the medical term for a state produced by a lower than normal level of blood glucose. The term literally means "under-sweet blood"...
due to the taking of insulin was not insane in nature, while in R v Hennsey [1989] 1 WLR 287
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
it was held that a crime committed while the defendant was suffering from hyperglycemia
Hyperglycemia
Hyperglycemia or Hyperglycæmia, or high blood sugar, is a condition in which an excessive amount of glucose circulates in the blood plasma. This is generally a glucose level higher than 13.5mmol/l , but symptoms may not start to become noticeable until even higher values such as 15-20 mmol/l...
did constitute insanity. As a result, the existing law allows some diabetics to be acquitted while others are declared insane, something one academic describes as "absurd". In R v Sullivan, a man was charged with grievous bodily harm under the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
after assaulting his friend during an epileptic seizure
Epilepsy
Epilepsy is a common chronic neurological disorder characterized by seizures. These seizures are transient signs and/or symptoms of abnormal, excessive or hypersynchronous neuronal activity in the brain.About 50 million people worldwide have epilepsy, and nearly two out of every three new cases...
. The House of Lords ruled that Sullivan was indeed insane, and that "it does not lie within the power of the courts to alter [the insanity test]". Some critics have professed "unease" at the powers of the courts to confine people found not guilty by reason of insanity in mental hospitals, arguing that discussion of mental health should be limited to the mens rea of the crime; if the mental condition of the defendant voided the offence's mens rea, he should be acquitted.
The Butler Committee's report in 1975 submitted the law of insanity to intense criticism, saying that it is "based on too limited a concept of the nature of mental disorder", noting "the outmoded language of the M'Naghten Rules
M'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...
which gives rise to problems of interpretation" and that the rules were "based on the now obsolete belief in the pre-eminent role of reason in controlling social behaviour... [the rules] are not therefore a satisfactory test of criminal responsibility". An additional criticism given is that the defence puts the burden of proof onto the defendant, while in all other cases the burden is on the prosecution. The Butler Committee proposed reform, which was repeatedly ignored by successive governments; the Law Commission
Law Commission (England and Wales)
In England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
drafted a Criminal Code Bill in 1989 which altered the rules on insanity, but this was again ignored.