Defences: Insanity

Question 1

What is the defence of insanity?

Answer 1

The defence of insanity is also known as insane automatism and has little to do with the medical definition of insanity, the concept is given a legal definition. Insanity is a general defence, it can be used as a defence for any crime, including summary offences.

Question 2

What happens when a verdict of ‘not guilty by reason of insanity’ is made?

Answer 2

Before the Criminal Procedure Act 1991 a successful plea resulted in compulsory detention in a mental hospital. The 1991 act gave a judge a range of orders that could be made apart from murder where a defendant had to be hospitalised indefinitely and could only be released on the authority of the Home Secretary. The 1991 act has been replaced and amended by the Domestic Violence Crime and Victims Act 2004. Under the 2004 act for offences other than murder a judge may make either:
1. a hospital order, with or without restrictions
2. a supervision order
3. an absolute discharge
In addition, it introduced a limit on the judges discretion, under the 2004 act a judge cannot make a hospital order or restriction order without medical evidence to support such an order. This also applies to murder cases, this change is seen as being in line with human rights and the Human Rights Act 1998.

Question 3

Who has the burden of proof?

Answer 3

The defendant has the burden of proof, the defendant must prove insanity on a balance of probabilities. The prosecution can call evidence to try and prove the defendant is insane where they had not pleaded insanity. If a defendant falls to raise the defence of automatism a judge can raise issue of insanity.

Question 4

M’Naughten 1843?

Answer 4

The rules on insanity were laid down in M’Naughten. Here the defendant attempted to murder Robert Peel, the Prime minister at that time, but killed his secretary by mistake. The court acquitted him on grounds of insanity. Due to public and media outcry the House of Lords were asked to clarify the legal rules on insanity as a defence. The House of Lords said there is a general presumption everyone is sane but that this can be rebutted. It must be established that at the time of the offence the defendant was suffering from a defect of reason or a disease of the mind so that either the defendant did not know what he was doing or if he did know that what he was doing was wrong.

Question 5

What is a defect of reason?

Answer 5

This means a complete loss of reasoning power, mere forgetfulness or absent mindedness wont do. Simply failing to use reasoning powers is insufficient.

Question 6

R V Clarke 1972?

Answer 6

The defendant was charged with stealing from a supermarket. Her defence was that she had no intention of stealing. She argued that she had been acting absentmindedly because she was suffering from diabetes and depression. The judge ruled insanity was the appropriate defence and she then pleaded guilty to avoid an insanity finding. On appeal, her theft conviction was quashed because she did not have the mens rea for theft.

Question 7

What is disease of the mind?

Answer 7

This is a legal, not medical term and it covers states of mind which doctors would be most unlikely to say are diseases of the mind. In legal terms it means a malfunctioning of the mind. The cases have held this is not confined to diseases of the brain alone, but any malfunctioning of the mind caused by something from within the body will do.

Question 8

R V Kemp 1957?

Answer 8

The court said there was no distinction between a disease of the mind and a disease of the body affecting the mind. In this case it was held that hardening arteries, a physical condition, was shown on evidence to be capable of affecting the mind in such a way as to cause a defect of reason. The defendant suffered from arteriosclerosis which caused a problem with blood supply to the brain resulting in temporary blackouts. During one of these he attacked his wife with a hammer causing her serious injury. He was charged with Section 20 GBH and was found not guilty by reason of insanity. On appeal the court upheld this finding say the law was concerned with the mind not with the brain. His ordinary faculties of reason, memory and understanding had been affected and so his condition came within the rules of insanity. Lord Devlin said ‘the condition of the brain is irrelevant and so is the question whether the condition is curable and incurable, transitory or permanent. Hardening arteries is a disease shown on evidence to be capable of affecting the mind in such a way as to cause a defect.

Question 9

What are the two main judicial theories for insanity?

Answer 9

• the continuing danger theory

- the internal cause/factor or external cause/factory

Question 10

What is the continuing danger theory?

Answer 10

Is the defendant still a danger to the public and are they likely to be violent. This originated in Bratty V Attorney General for Northern Ireland 1963 where the defendant strangled a girl with her stocking and claimed it happened during an epileptic seizure. The trial judge said this was an insanity plea and the House of Lords upheld this finding. Lord Denning said that ‘any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind’. This approach seems to be dictated by public policy and the need to protect the public from dangerous and violent individuals.

Question 11

R V Sullivan 1984?

Answer 11

This confirmed the ruling in Bratty. The defendant kicked and injured a friend during an epileptic seizure and was charged with inflicting GBH. Medical evidence suggested he would not have been aware during the fit that he was kicking anyone. The defendant pleaded automatism but the judge said insanity was the appropriate defence. He then pleaded guilty and appealed against the judges direction. The appeal court agreed with the trial judges and his conviction was upheld. It said that epilepsy was a disease of the mind because during a seizure mental faculties could be impaired to the extent of causing a defect of mind and it was irrelevant if the defect of reason was temporary or permanent.

Question 12

What is the internal/external factor theory?

Answer 12

In R V Quick 1973 the Court of Appeal made a distinction between conditions caused by an outside source e.g. a blow to the head or wrongful use of medication and internal sources. It decided that if the malfunctioning is caused by an internal source the correct defence is insanity, if it is due to an external source the correct defence is automatism. This theory was confirmed in R V Sullivan 1984.

Question 13

What do diabetics show about the internal/external factory theory?

Answer 13

Two contrasting cases show how the courts applied the internal/external factor theory where diabetic defendants were charged with an offence differently.

Question 14

R V Quick 1973?

Answer 14

The defendant had a hypoglycaemic attack brought on by not eating enough after he took insulin. He attacked a patient at the hospital where he was a nurse, causing GBH and he said he couldn’t remember anything. The judge said that this was a plea of insanity, not automatism. Quick then pleaded guilty to avoid the insanity ruling and appealed. The Court of Appeal quashed his conviction, the cause of his state was not the diabetes but the insulin and its incorrect use and therefore it was an external factory and the jury should have been allowed to consider automatism.

Question 15

R V Hennessy 1989?

Answer 15

The defendant was a diabetic and was charged with taking a vehicle and driving whilst disqualified. He said that at the time he had not taken insulin for three days due to stress and depression and was suffering from hyperglycemia. The judge ruled that the proper defence was insanity, the defendant pleaded guilty to avoid the insanity plea and then appealed, his appeal was rejected. Not taking insulin means that the cause of the defendant’s automatic state was the diabetes, an internal cause and so the trial judge had been correct to rule that this was insanity.

Question 16

R V Burgess 1991?

Answer 16

The internal/external factor theory was also applied strictly when the defendant claimed he was sleepwalking at the time of the offence. The defendant hit his female friend with a bottle and video recorder after falling asleep watching a film with him. He also grasped her around the throat. He was charged with unlawful wounding and pleaded automatism. The judge said the appropriate defence was insanity and the jury returned the special verdict. The Court of Appeal dismissed his appeal against the trial judges ruling. It held that sleepwalking was caused by an internal factor and was therefore a ‘disease of the mind’ and so the appropriate defence was insanity.

Question 17

What must be proved once a suitable disease of the mind has been proved?

Answer 17

The defence must also prove that the disease of the mind meant that the defendant lacked knowledge as to the ‘nature and quality of the act or if he did know it, that he didn’t know that what he was doing was wrong.

Question 18

The nature and quality of the act?

Answer 18

In Codere 1916 this was held to mean the physical, rather than moral nature of the act. For example where a defendant cuts his wife throat thinking it was a loaf of bread.

Question 19

Knowledge that the act was wrong?

Answer 19

This means legally, not morally wrong as illustrated in R V Windle 1952 and R V Johnson 2007.

Question 20

R V Windle 1952?

Answer 20

The defendant killed his suicidal wife with an overdose of 100 aspirins. When arrested he said ‘I suppose they will hang me for this’. Despite medical evidence that he was suffering from a mental illness he knew that poisoning his wife was legally wrong. The court upheld his murder conviction and rejected his plea of insanity.

Question 21

R V Johnson 2007?

Answer 21

The Court of Appeal confirmed Windle. The defendant was schizophrenic and stabbed his neighbour. Medical evidence showed he knew that what he had done was legally wrong. The Court of Appeal held that the defence of insanity was not available to him.

Question 22

Advantages of the defence of insanity?

Answer 22

• In recent years the English Courts have taken a generous approach, treating sleepwalking as a plea of automatism. For example, in R V Thomas 2009 the defendant had a longstanding sleep disorder, during a nightmare he thought he was attacking an intruder in his camper van, but in fact he was strangling his wife of 40 years. On hearing of this condition the prosecution who had been seeking an insanity verdict, offered no evidence and the case was dismissed.
• It is irrelevant whether the disease which affects the functioning of the mind is physical or mental in origin as seen in R V Kemp 1957. The definition seems to be based mainly on maximum public safety and policy rather than legal principles or any definition used by medical professionals.

Question 23

Disadvantage of the defence of insanity?

Answer 23

• The definition of insanity is outdated, stemming from the 1843 case of M’Naghten and it takes little account of medical and psychiatric progress since 1843. The 1953 Royal Commission on Capital Punishment reported that doctors thought the M’Naghten Rules were ‘obsolete and misleading’. The law is out of step with modern medicine.
• The definition is a legal definition, not a medical one. The Victorians also associated insanity was failure of reasoning powers but medical science now recognises that the mind also includes emotions and the personality. The current definition is meaningless to psychiatrists.
• The all or nothing approach, there is not a verdict of partially insane. A defendant is either sane or insane and this is harsh and potentially unjust.
• Psychiatrists lack a reliable means of telling whether a defendant was insane at the time the offence was committed and the jury, not doctors decide if they are insane. Even the medical experts may disagree amongst themselves about a particular diagnosis and could distort evidence if sympathetic for the defendant. Juries may ignore the medical evidence in deciding whether the defendant was legally insane when the offence was committed.
• It is objectionable that the label or stigma of insanity is applied to someone acting during an epileptic seizure e.g. Bratty and Sullivan or during a hypoglycemic attack e.g. Hennessy or sleepwalking e.g. Burgess. Medically these people are not seen as insane. MIND criticised the link drawn between epilepsy and insanity saying that it encourages a dangerous and outdated approach to epileptic whose lives generally bear no relation to cases like Bratty and Sullivan.
• The internal/external factor theory is harsh and absurd in applying the M’Naghten Rules to diabetics. Diabetics whose diabetes causes hypoglycemia as in Quick can raise automatism but when it causes hyperglycemia, as in Hennessy, a defendant can only plead insanity and not automatism.
• The Law Commission comments that the courts ruling in R V Burgess 1991 on sleepwalking causes problems for a defendant who pleads not guilty on the basis that they were asleep at the time of the offence. The Canadian Courts have taken a different approach and in Parks 1992 the Supreme Court of Canada agreed with the trial judge who allowed a jury to consider automatism to charges of murder and attempted murder. It said that the internal/external theory was ‘meant to be used only as an analytical tool and not as an all-encompassing cause theory’.
• Even where a defendant is suffering from a ‘defect of reason due to disease of the mind’ the defence will be unavailable to those who believe their actions to be morally right but legally wrong e.g. R V Windle 1952 and confirmed in R V Johnson 2007. In Johnson although the Court of Appeal thought the decision in Windle was too strict they felt unable to depart from it and believed that any changes should be done by Parliament.
• Burden of proof, it is up to the defendant to prove their insanity instead of the prosecution having to prove they are not insane.
• Before 1991 the successful plea of insanity resulted in the compulsory detention of the defendant in a mental hospital. This is why defendant’s like Clarke and Quick pleaded guilty to avoid the judges insanity direction to the jury. The Criminal Procedure (Insanity and Unfitness to plead) Act 1991 removed this requirement and gave a range of orders a judge can make. The only exception was for murder where the defendant must be hospitalised indefinitely and can only be released on the Home Secretary’s authority. This act has now been replaced by the Domestic Violence, Crimes and Victims Act 2004 which says there must be medical evidence which justifies detention in hospital, even for murder. This fits in better with human rights concerns and addresses previous criticisms that the previous rules were in breach of the Human Rights Act 1998.

Question 24

Reform of the defence of insanity?

Answer 24

The British Medical Association recommended to the Royal Commission on Capital Punishment 1953 that the M’Naghten Rules should be abolished or at the very least amended so they are in line with current medical knowledge. In 1975 the Butler Committee recommended replacing insanity with a verdict of ‘not guilty on evidence of a medical disorder’. This terminology would avoid the stigma of being labelled insane. The 1989 Law Commission’s Draft Criminal Code proposed a mental disorder verdict based on medical evidence. In 2012 the Law Commission Consultation Scoping Paper explored the defence of insanity and raises many concerns about the current defence. The Consultation period is now over and we await further development.