Still "insane". But for how much longer…?

We are pleased to welcome this guest post from Dr. Louise Kennefick, Lecturer in Law at NUI Maynooth.

With the news that the Department of Justice and Equality is to conduct a review of the Criminal Law (Insanity) Act 2006 (as amended), the insanity defence is back in the limelight once again, and not a moment too soon. The recent Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, court proceedings (e.g. D.P.P. v. W.B. discussed below), and A Vision for Change have all played their part in mobilising the government.

The review comes at a turbulent time for the defence in England and Wales also, where the Law Commission there is due to publish a Consultation Paper on the topic early next year.  In anticipation of the CP, Dr. Sally Cunningham of the University of Leicester organised a panel of experts to discuss the reform of the insanity defence at the SLS Conference at Cambridge University earlier this month.

The panel consisted of Professor David Ormerod, Law Commissioner of England and Wales, Professor Gerry Maher, Q.C., of the University of Edinburgh and Dr. Lisa Claydon of the University of the West of England. I represented the Irish contingent. The panel was honoured to have as Chair of the session, Professor Ronnie Mackay of de Montfort Law School, whose research of the defence in the English courts covers many years and who is author of the seminal text on the area, Mental Condition Defences in the Criminal Law. Having those who formulate the law in England and Wales (Prof Ormerod), Scotland (Prof Maher) and Jersey (Prof Mackay), collectively focusing on this topic resulted in a dynamic, cross-jurisdictional analysis.  The discussion served to highlight the unsatisfactory state of the law of insanity in Ireland in particular, notwithstanding the introduction of CLIA 2006.

The title of Professor Ormerod’s paper, “Problems with the insanity defence in England and Wales” set the tone for the session.  Much of what he outlined correlates with the Irish position given its reliance on the M’Naghten Rules as the cognitive element of the defence, though the two jurisdictions diverge on the issue of volitional insanity, which was confirmed as part of the common law in Ireland following the decision in Doyle v. Wicklow County Council.  One of the fundamental problems with the Rules stems from the fact that it is now accepted that many defendants with a mental disorder can understand the nature of their act and know that it is wrong, even though they may have been driven (irresistibly or not) by fear, anger or delusion to override moral concerns. Volitional insanity, though expanding the M’Naghten Rules in Ireland, is far from problem free. The Butler Report (1975) highlights the central criticism of the test when it asks: “How can one tell the difference between an impulse which is irresistible and one which is merely not resisted?”

The key problems outlined by Professor Ormerod relate to the continuing use of the term “insanity”, the fact that the special verdict it is “out of step” with current medical and psychiatric understanding, the confusion surrounding the rationale of the defence, and its lack of use in practice. The overarching sentiment of the panel was one of frustration as to the continuing use of the label “insanity” in the legal lexicon of England and Wales and Ireland, a term which Professor Ormerod described as “inaccurate, unfair and stigmatising”.  Certainly, the use of legal insanity as an excusing condition can be argued for in terms of its function as a legal classification, however, that argument is trumped on the grounds fair labelling. If reluctance to dispense with the term “insanity” flows from a fear of letting go on the part of the Legislature, or a fear of “lowering thresholds” (176 Seanad Deb. col. 261 (Apr. 7, 2004)), let’s look to Scotland as an example.

The term “insanity” has recently been dispensed with in the Scottish jurisdiction following a recommendation to that effect from the Scottish Law Commission, under the lead of Professor Maher, which was implemented in full by the Scottish Executive.  Section 51A of the Crime Procedure (Scotland) Act 1995 (as amended by section 168 the Criminal Justice and Licensing (Scotland) Act 2010) is entitled “criminal responsibility of persons with mental disorder”.  This may come as no surprise, but Scotland hasn’t crumbled as a result.

Dr. Claydon also provided an enlightening account of how the Dutch deal with the issue of mental disorder as an excusatory condition.  She referred to Article 39 of the Dutch Criminal Code which provides that where an individual commits a criminal offence by reason of a lack of development or mental disorder, he or she cannot be held criminally liable. There, evaluations of mental disorder are conducted on a pre-trial basis, and psychiatric reports are used to assess the degree to which the mental condition is related to the crime. The capacity of the defendant, therefore, may fall into the following categories: complete responsibility, slightly diminished, diminished, severely diminished and total absence of responsibility.

The Scottish and Dutch examples demonstrate that it is possible to have a workable mental disorder defence free from derogatory terminology and the outmoded M’Naghten Rules.  In addition, the law formulated by the Jersey court, which adopted a definition suggested by Professor Mackay, (though retaining the term “insanity” in the title), highlights an alternative definition which does not rely on the M’Naghten Rules: “… a person is insane within the meaning of Article 2 of the Criminal Justice (Insane Persons) (Jersey) Law 1964 if, at the time of the commission of the offence, his unsoundness of mind affected his criminal behaviour to such a substantial degree that the jury consider that he ought not to be found criminally responsible.” [AG v Prior 2001 JLR 146 at 158-9]

Indeed, in the 1970’s Ireland showed immense promise in this regard with the draft Criminal Justice (Mental Illness) Bill proposed by The Henchy Committee (1978), which proposed simpler and more flexible wording. The Committee recommended that where a person is suffering from a mental disorder at the time of the act such that he should not be found guilty of the offence a verdict of “not guilty by reason of mental disorder” should apply: a recommendation before its time. (Such approaches are in stark contrast to that of the position taken by the Law Commission of New Zealand where, in its December 2010 Report on Mental Impairment, Decision-making and the Insanity Defence, it recommended no change to the definition of the insanity defence which continues to retain the term “natural imbecility”).

Though CLIA 2006 does little to address the problems pertaining to the substance of the law of insanity in Ireland, it does go some way towards improving the position on a procedural level from the Trial of Lunatics Act 1883, with the introduction of the Mental Health (Criminal Law) Review Board, provision for appeals from the insanity verdict, and the removal of automatic detention. That said, the recent case of D.P.P. v. W.B. (2011) IECC 1 highlights that there is more to do. The case concerned the discrepancy in the protection afforded to patients detained under CLIA 2006 and those detained under Mental Health Act 2001. (MHA 2001 is also under review following recommendations made by the UN Committee Against Torture. See post by Fiona de Londras here and post by Máiréad Enright here). It further demonstrated how CLIA 2006 falls short on two particular counts: firstly, there is no regard for the “best interests” of the individual with a mental disorder, as per the 2001 Act; and secondly, the Central Mental Hospital remains the only “designated centre” for the purposes of CLIA 2006, with no provision for outpatient treatment.

Having just invited submissions, the outcome of the review of the Department of Justice and Equality in this jurisdiction is some way off.  In the meantime, to quote Professor Ormerod, the perpetual questions remains, “when should a person not be held criminally responsible because of a mental condition?” England and Wales: we await your response . . .

Still "insane". But for how much longer…?

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