Mental Condition Defences and the Criminal Justice System : Perspectives from Law and Medicine [1 ed.] 9781443875691, 9781443871617

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Mental Condition Defences and the Criminal Justice System

Mental Condition Defences and the Criminal Justice System Perspectives from Law and Medicine Edited by

Ben Livings, Alan Reed and Nicola Wake

Mental Condition Defences and the Criminal Justice System: Perspectives from Law and Medicine Edited by Ben Livings, Alan Reed and Nicola Wake This book first published 2015 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2015 by Ben Livings, Alan Reed, Nicola Wake and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-7161-3 ISBN (13): 978-1-4438-7161-7

CONTENTS

Preface ...................................................................................................... viii Ben Livings, Alan Reed and Nicola Wake Introduction ................................................................................................. x Ben Livings, Alan Reed and Nicola Wake Chapter One ................................................................................................. 1 Reforming Unfitness to Plead for Adults in the Crown Court: A Practitioner’s Perspective Rudi Fortson Chapter Two .............................................................................................. 52 Unfitness to Plead in Operation Ronnie Mackay Chapter Three ............................................................................................ 83 The Boundaries of the Insanity Defence: The Legal Approach where the Defendant did not “know that what he was doing was wrong” Claire De Than and Jesse Elvin Chapter Four ............................................................................................ 105 Prising Open the Door to Justice: Reforming the Wrongfulness Limb of the M’Naghten Rules Keith Rix Chapter Five ............................................................................................ 130 Total Incapacity John Stanton-Ife Chapter Six .............................................................................................. 159 Incapacity and Insanity: Do We Need the Insanity Defence? R.A. Duff

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Chapter Seven.......................................................................................... 178 Quasi-Involuntary Actions and Moral Capacity: The Narrative of Emotional Excuse and Psychological-Blow Automatism Alan Reed Chapter Eight ........................................................................................... 216 Automatism: The Ictus, the Character, and the Law Mark A. Turner and Nicholas Moran Chapter Nine............................................................................................ 236 Sleep Disorders / Sexsomnia: The Role of the Expert and the External/Internal Factor Dichotomy Adam Jackson, Gethin Rees and Natalie Wortley Chapter Ten ............................................................................................. 275 From Marx to Majewski: A Review of the Law on Voluntary Intoxication in the Former German Democratic Republic Michael Bohlander Chapter Eleven ........................................................................................ 295 How Should the Criminal Law Deal with People who have ‘Partial Capacity’? Claire De Than and Jesse Elvin Chapter Twelve ....................................................................................... 318 Diminished Responsibility, Culpability and Moral Agency: The Importance of Distinguishing the Terms Helen Howard Chapter Thirteen ...................................................................................... 339 From Carpetbag to Crucible: Reconceptualising Diminished Responsibility Manslaughter Arlie Loughnan Chapter Fourteen ..................................................................................... 365 Anglo-Antipodean Perspectives on the Positive Restriction Model and Abolition of the Provocation Defence Nicola Wake

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Chapter Fifteen ........................................................................................ 406 Youth, Mental Incapacity and the Criminal Justice System Ray Arthur Notes on Contributors.............................................................................. 426 Index ........................................................................................................ 434

PREFACE BEN LIVINGS, ALAN REED AND NICOLA WAKE

The genesis of this collection lies in a series of events organised by, amongst others, the editors of this volume, chiefly the one-day conference, organised by Nicola Wake and Ben Livings, which took place at the University of Northumbria in October 2013. Several of the contributing authors were present at this event, which allowed for the interdisciplinary exchange of ideas between legal and medical practitioners and academics. The views expressed at this conference have helped to inform and shape the compilation of this volume. The contributing authors bring to bear a range of perspectives on the various topics and views herein presented. The matters with which the volume concerns itself are important and timely, with the law relating to mental disorder and criminal justice in a state of flux, but the book is not intended to be a comprehensive account of criminal justice when it comes to matters pertaining to mental disorder; the subject is, in reality, far too broad and rather too fragmented for any single volume to be able to achieve this. It does, however, set out to address some of the problematic aspects in the area, and to provide a platform for further research and policy reform. The contributions range from the academic and theoretical to the more practice- and policy-focused, and one of the aims of the collection was to achieve a balance in this respect. So far as it is practicable, the chapters are arranged thematically, in order to assist the reader to navigate the different topics addressed. The volume is intended to form a coherent whole, connected by the overarching theme, and it can be read as such, or more selectively by those interested in particular themes or chapters. To this end, there are cross-references between the chapters where appropriate, but these are kept to a minimum. As editors, we would like to take this opportunity to thank the contributors to this volume, both for their excellent chapters and for the professional and timely manner in which they were completed. These

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factors have made the editing process a relatively straightforward one. It has been a pleasure to receive, and have the opportunity to edit, such a fine collection of work. We hope that readers will find the chapters, and the volume as a whole, a useful and interesting addition to the expanding literature in this area. In addition, we would like to thank the publishers, and Emma Smith, of Northumbria Law School, (for her valuable assistance in formatting the chapters), and the University of Northumbria’s Centre for Evidence and Criminal Justice Studies, and the University of Sunderland, for supporting the activities that have made this work possible.

INTRODUCTION BEN LIVINGS, ALAN REED AND NICOLA WAKE

The criminal law has struggled to keep pace with developments in psychiatry, both in substantive and procedural terms, and it is widely recognised that increased inter-disciplinary discussion of mental condition defences is required in order to begin to address this gap between the law and psychiatry. This edited collection comes at a time of review of this sensitive area of the criminal law. The Law Commission for England and Wales recently placed its evaluation of insanity, automatism and intoxication on hold, whilst the Commission considers the law on unfitness to plead. These reviews are set against the backdrop of earlier Law Commission reports on partial defences to murder which informed significant changes that were made to the law in this area under sections 52-56 of the Coroners and Justice Act 2009. Recent developments in case law in this substantive field not only illustrate the importance of the role of the medical expert, but also that reform in this area is informed by ongoing inter-disciplinary research. This edited collection brings together medical and legal conceptions of mental disorder in order to appraise the operation of the criminal law relating to mental condition defences. In this context, the edited collection is grouped into themes covering the law on unfitness to plead, insanity, automatism, and partial responsibility. The authors also consider the law on the age of criminal responsibility, and intoxication. The collection takes as its logical starting point the issue of unfitness to plead, with contributions from Rudi Fortson and Ronnie Mackay. In chapter one, ‘Reforming Unfitness to Plead for Adults in the Crown Court: A Practitioner’s Perspective’, Fortson explores the Law Commission for England and Wales’ Consultative Document ‘Unfitness to Plead’, which put forward the Law Commission’s provisional proposals for reform on the law concerning a defendant’s unfitness to plead. Fortson asserts that, commendable as the Commission’s work is, the question arises whether

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existing law and practice justifies statutory reform in respect of concerns that are prone to being overstated. In ‘Unfitness To Plead in Operation’ (chapter two), Ronnie Mackay examines the parameters of unfitness to plead which, by way of comparison with academic commentaries on the insanity defence and M’Naghten Rules, has been somewhat neglected by acamedicians. Little is known about how unfitness to plead, also referred to as disability in relation to the trial, operates in practice. The chapter attempts to redress this gap in knowledge by exploring empirical data that the author has acquired on findings of unfitness to plead over several decades. In doing so it assesses the value of empirical studies and what they bring to the reform agenda. From here, the focus moves to the insanity defence, with contributions from Claire De Than and Jesse Elvin, Keith Rix, John Stanton-Ife and R A Duff. In the first of these (chapter three), ‘The Boundaries of the Insanity Defence: The Legal Approach where the Defendant did not “know that what he was doing what was wrong’”, De Than and Elvin look to a particular facet of the insanity defence, insofar as the English case law has consistently held that ‘wrong’ here means ‘contrary to law’ rather than ‘morally wrong’. As a consequence of this, a defendant cannot use the insanity defence where s/he appreciates the nature and quality of the act in question and that it is legally wrong, even if s/he has a mental disorder that makes him/her think that the act is morally right. The Law Commission called this ‘an unusually, and arguably unjustifiably, narrow interpretation of the “wrongfulness” limb’ (Law Com DP, 2013, para 2.50), and De Than and Elvin’s chapter considers whether English law has taken the correct approach in this respect. They posit the question of whether the defence of insanity should extend to those who understand the legal wrongfulness of their acts, but perform them because they believe them to be morally correct. An important issue examined in this respect is how the law should respond to cases of alleged ‘brainwashing’, where the defendant argues that he or she was brainwashed and, as a result of this, believed that the act in question was morally right. This issue has been raised in relation to a number of notable cases, such as the trials of Patty Hearst and Lee Malvo in the US, and is pertinent in relation to the so-called ‘War on Terrorism’, where it is sometimes claimed that brainwashing by extremists has caused defendants to participate in acts of terrorism. Keith Rix in chapter four ‘Prising Open the Door to Justice: Reforming the Wrongfulness Limb of the M’Naghten Rules’ deals with the meaning of ‘wrongfulness’ in the ‘wrongfulness limb’ of the M’Naghten Rules. Rix’s chapter commences with an analysis of the case law in England and

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Wales which have established that the wrongfulness limb has been held to be limited to those who lack awareness that what they are doing is legally wrong and does not apply to those who lack awareness that what they are doing is morally wrong. Rix criticises this interpretation, before contrasting it with evidence that psychiatrists in England and Wales interpret wrongness as referring to moral as well as legal wrongness. This analysis is contextualised with an account of the approaches adopted in other jurisdictions. This examination of comparative law is used as background to the introduction of the Law Commission’s proposals for reform of the insanity defence in England and Wales and suggestions for a way forward pending reform. In ‘Total Incapacity’ (chapter five), Stanton-Ife examines the recent work of the Law Commission, undertaken with a view to reforming the defence of insanity. Stanton-Ife suggests that any claim the new proposed ‘recognised medical condition’ test has to being radical or novel lies not in its structure, which is similar to the extant M’Naghten rules, but rather in its extension of the qualifying condition that launches the defence beyond mental conditions into medical conditions in general and its addition of a new kind of resulting incapacity. It is the nature of this incapacity, in particular, that interests Stanton-Ife, and the majority of his chapter engages in criticism of the Commission’s proposal that ‘total incapacity’ be required in order for a defendant to be able to satisfy the reformed defence. R.A. Duff, in ‘Incapacity and Insanity: Do We Need the Insanity Defence?’ (chapter six), presents his views on the criticism of the Law Commission’s proposals offered by Stanton-Ife, and then moves to a critical examination of the structure of the existing defence of insanity, which is ostensibly maintained in the Commission’s proposed defence. Here, Duff clearly agrees with Stanton-Ife about the importance of capacity issues for the reformed defence, and he argues that the importance of the question of capacity renders the Commission’s additional requirement for a ‘recognised medical condition’ superfluous. Duff concludes that it is time to abolish the insanity defence, but that this should be done ‘in favour not of the “recognised medical condition” defence proposed by the Law Commission, which still sticks too closely to the structure of the insanity defence, but of a simple defence of “lack of rational capacity”’. Often closely aligned to insanity is the separate concept of automatism, a subject addressed by Alan Reed, Mark A Turner and Nicholas Moran, and Adam Jackson, Gethin Rees and Natalie Wortley. In chapter seven, ‘Quasi-Involuntary Actions And Moral Capacity: The Narrative of Emotional Excuse And Psychological-Blow Automatism’, Reed examines

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the proposition that an individual’s capacity for self-control is fundamentally a moral question. Too much focus in this regard has concentrated upon the control element of culpability, and not enough on the narrative attached to any emotional excuse presentation of the defence as part of fair labelling. Involuntariness should be viewed as a continuum in this perspective between strict deontological and detonative, but with a greater appreciation of the proposed semi-voluntary reduced capacity categorisation. Moral capacity and the wider legal prism of emotional excuse in contextualised, developing the nature of the moral responsibility and partial liability nexus, and a wider range of more sophisticated judicial remedies to deal with gradations of individuated blameworthiness. The review is developed in terms of psychological-blow automatism, set in the context of post-traumatic stress disorder and dissociative states. It is extended to consider the wider parameters of provocation and sexual infidelity killings, and beyond to individuals whose emotional state becomes a compound of phemenological grief, fear, anger and despair. A broader perspective should attach to the emotional narrative engaged, reflected in a new via media pathway and an affirmative excusatory defence normatively linked to societal interests of justice. A new pathway is chartered in this chapter towards an appropriate inculpatory-exculpatory equipoise, and fact-finder recognition of physiological control reactions encompassing sexual jealousy, anger, revenge, fear and “compassionate” mercy killing. In ‘Automatism: The Ictus, the Character, and the Law’ (chapter eight) Turner and Moran provide an analysis of the concept of automatism from a medical perspective and then examine the nature of medical expertise in legal contexts. The focus is on epilepsy, and mainly on complex partial seizures, but it is anticipated that the other main categories of automatism, namely sleep and sane automatisms, could be usefully subjected to an analysis which focuses on the how medical expert opinions are formulated in legal contexts, and the implications thereof. Turner and Moran note that the Law Commission’s draft proposals for reforming the law on insanity and automatism are rightly concerned to bring legal terminology into line with medical terminology. Medical evidence supporting an automatism is likely to continue to carry significant implications, and progress in this area will therefore be assisted by further analysis of the clinical and legal application of the concept. This is particularly true where evidence of automatism is confined to the offence behaviour and where questions of ‘diagnosis’, motive and character are most closely associated. Jackson, Rees and Wortley, in chapter nine, ‘Sleep disorders / sexsomnia: the role of the expert and the external/internal factor

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dichotomy’, identify that since 2005, there have been a number of cases in which defendants charged with sexual offences have claimed that they carried out the acts alleged whilst sleeping, seeking to use the condition sexsomnia as the basis of a defence of either insanity or automatism. This chapter considers the role of the forensic sleep expert in establishing a defence based on sexsomnia. The admissibility of sleep expert evidence and the limitations on the conclusions that can be drawn by such experts, based on clinical evaluation and other relevant factors, is also discussed. In order to properly understand the context in which expert evidence is admitted, this chapter considers the application of the internal/external factor test to sexsomnia cases and the appropriateness of the test in such circumstances. Consideration is given to the potential impact of the recent amendments to Part 33 of the Criminal Procedure rules and the associated Criminal Practice Direction on the admissibility of forensic sleep expert evidence in sexsomnia cases. In chapter ten, ‘From Marx to Majewski: A Review Of The Law On Voluntary Intoxication In The Former German Democratic Republic’ Michael Bohlander suggests that the treatment of voluntary intoxication in the criminal law and the wider legal order in general poses problems at the fault-lines between individual blameworthiness on the one hand, and endangerment of society and of the public interest on the other, i.e. it raises complex questions of balancing competing positions in the public policy debate. It also treads on uncertain ground as far as the crossdisciplinary conversation between law and medicine is concerned; while medical science, being purely fact-oriented, may have no qualms about conceding that a sufficient degree of intoxication will eradicate the human capacity of forming a conscious decision in such a state, either entirely or partly, the law as a normative discipline has to ask the additional question of which consequences should attach to the effects arising from such a state of lack of capacity within society. People tend to do irrational and often dangerous acts when intoxicated, so society must ask whether anyone - and if so, who - is to blame and is liable under the law if harm occurs to another from the conduct of the intoxicated person. Not surprisingly, attitudes and rationalisations differ across national jurisdictions. The former German Democratic Republic (GDR), which existed from 1949 – 1990, had at first continued the tradition of the German law from before the Second World War, but had then moved to a specific socialist approach in the criminal law reform of 1968 which in effect mirrored the public policy choice in DPP v Majewski almost down to the details, including the basic/specific intent division, albeit not the exclusion of insanity and/or diminished responsibility. The new law basically stated

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that even if these states were present, their effect would be disregarded for reasons of public policy; in a way a more transparent version of the English approach. This chapter will trace the criminal policy and doctrinal development of the law in the GDR in the legislature and the courts and thus try to show that even radically different state ideologies can come to very similar public policy choices – whether it is the staunchly capitalist tradition of England and Wales or the socialist attitude of the former GDR. In ‘How should the criminal law deal with people who have “partial capacity”?’ (chapter eleven), De Than and Elvin’s second contribution, the authors consider how the criminal law should deal with people who have ‘partial capacity’ in two senses: that they lack capacity in relation to some decisions relevant to criminal liability; or that they sometimes lack capacity. The chapter explores legal issues relating to those with reduced ability to understand or appreciate their actions, or to control these actions, due to a range of conditions such as learning disabilities, brain injuries or youth; and unpredictable health conditions such as sleepwalking. In so doing, De Than and Elvin address a range of important issues and their impact on a wide range of criminal offences. This includes examining whether the law on insanity operates unfairly against those who have learning disabilities or children who do not fall within the scope of the M’Naghten rules because they do not have a ‘disease of the mind’. It also involves considering how the law should deal with sleepwalkers. They ask whether a simple acquittal on the basis of non-insane automatism, as has happened in several recent unreported cases, is appropriate. The chapter concludes by suggesting reform proposals to improve compliance with enhanced human rights standards. The chapters of Helen Howard, Arlie Loughnan and Nicola Wake concern themselves with the issue of partial defences to murder. In chapter twelve, ‘Diminished Responsibility, Culpability and Moral Agency: The Importance of Distinguishing the Terms’, Howard suggests that the defence of diminished responsibility has always offered an uncomfortable compromise between ascribing full responsibility for murder and the removal of all responsibility. This chapter will consider whether it is ever acceptable for an individual to be found partially responsible for a crime. In pursuit of this aim, the difference between the concepts of reduced culpability and reduced responsibility will be examined. First, an individual’s mental capacity should determine whether he is a moral agent and, consequently, minimally responsible. Only when this is established should the question of his culpability by reason of his reduced mental capacity enable his liability to punishment to be determined. These theoretical issues are examined in the light of the partial defence of

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diminished responsibility as amended by section 52 of the Coroners and Justice Act 2009 and it is suggested that the new defence has come no nearer to resolving them. Loughnan in chapter thirteen, ‘From Carpetbag to Crucible: Reconceptualising Diminished Responsibility Manslaughter’ suggests that there is a perception that the social meanings around unlawful killing have become more complex under late modern social and political conditions. Against this complex and changing backdrop, the core idea of individual responsibility for crime confronts new conditions of possibility. Under such conditions, diminished responsibility manslaughter has been operating in an important yet hitherto now unappreciated way – accommodating diverse and dynamic social meanings around unlawful killing that do not fit neatly into the familiar legal distinctions of offence and defence, and act and actor. Rather than embrace this aspect of diminished responsibility, the literature reveals that scholars regard diminished responsibility manslaughter as either dogged by doubts about its theoretical coherence, or dismiss it as a by-product of the law of homicide. In this chapter, Loughnan suggests that conceptualising diminished responsibility manslaughter as a hybrid legal form – as an offence/defence in which the act and actor are inextricably enmeshed – reveals both its significance and its wider potential in meeting the challenges facing practices of responsibility attribution in criminal law In chapter fourteen entitled, ‘Anglo-Antipodean Perspectives on the Positive Restriction Model and Abolition of the Provocation Defence’ Wake compares the new extreme provocation defence in New South Wales with the loss of control defence in England and Wales. This analysis is complemented by a review of the law in New Zealand and Victoria where the provocation defence has been abolished. Wake suggests that a common failure to understand the circumstances of abused women within these jurisdictions is a major factor in the problems associated with current and former iterations of the provocation defence. Wake argues that it is imperative that the circumstances of those who kill their abusers are considered in order to achieve just results, and accordingly, she suggests that much is to be learned from the approach adopted in Victoria, where evidence of familial violence is admissible in relation to particular defences. Raymond Arthur, in chapter fifteen, ‘Youth, Mental Incapacity and the Criminal Justice System’ notes that in England and Wales the age of criminal responsibility is set at 10 years. The current law therefore assumes all children are sufficiently mature at this age to accept criminal responsibility for their behaviour. Arthur suggests that this approach to

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youth criminal capacity pays little attention to the evidence, tested under a variety of sampling and measurement conditions, that children and young people differ in developmental maturity from adults and thus may be less culpable than adults for their choices and behaviour. Under the current rules, even an incompetent child who did not understand the consequences of his behaviour may be held criminally responsible. This chapter argues that the English criminal justice system has overestimated children’s capacities and disregards the child’s right to respect for their evolving capacities and competencies. Furthermore, Arthur asserts that the law should protect children from the full rigours of the criminal justice system until they are old enough to take full responsibility for their actions.

CHAPTER ONE REFORMING UNFITNESS TO PLEAD FOR ADULTS IN THE CROWN COURT: A PRACTITIONER’S PERSPECTIVE RUDI FORTSON Q.C.1

Introduction Rules relating to a defendant’s ‘fitness to plead’ (or otherwise) have been the subject of sustained criticism. It is criticism that has received detailed and painstaking consideration by the Law Commission for England and Wales,2 and indeed, by the Scottish Law Commission.3 This chapter seeks to demonstrate that the question of what constitutes a defendant’s ‘fitness to stand trial’ (or ‘to plead’) is deceptively complex

1

Rudi Fortson QC Barrister, 25 Bedford Row, London, WC1R 4HD. Visiting Professor of Law, Queen Mary, University of London. The views expressed herein are those of the author alone and they are not to be taken as representing the views of any professional body. The author is a signatory to the ‘Response by the Law Reform Committee of the Bar Council and the Criminal Bar Association for England and Wales’ (January 2011) to the Law Commission’s Consultation Paper No.197 (Unfitness to Plead), but he is not to be taken as representing the views of other signatories to that joint response. 2 The Law Commission, Unfitness to Plead (Consultation Paper No 197, 2010); Law Commission Scoping Paper, Insanity and Automatism (July 2012); Law Commission Discussion Paper Criminal Liability: Insanity and Automatism (July 2013); Law Commission: Unfitness To Plead: An Issues Paper (2014); and see The Law Commission, Mental Incapacity (Law Com No 231, 1995) 3 Scottish Law Commission, Report on Insanity and Diminished Responsibility (Report 195, 2004).

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and not one that can be comprehensively answered by statutory rules alone.4 In the case of Bhanji, 5 the appellant was convicted of duty evasion following a trial lasting several weeks. Although physically unwell, Bhanji was sufficiently fit to stand trial. By the date of confiscation proceedings he was chronically ill and unable to attend court in person, but he was legally represented, gave limited instructions to his legal advisers, and evidence was adduced on his behalf over several days. A confiscation order was made in the sum of £1,202,815.90 (the value of the pecuniary advantage obtained) with a sentence of three years’ imprisonment in default of payment. In refusing to hold that the judge was wrong not to stay confiscation proceedings as an abuse of process of the court, the Court of Appeal held that the correct test was whether the proceedings were fair. Bhanji had been given many months to prepare for confiscation proceedings, and although he was unable to testify personally in those proceedings, he had not been wholly incapable of giving instructions (or supplying information) during that period. The Court accepted that it is ‘axiomatic that any defendant should have the right (should he so wish) to attend and participate in confiscation proceedings; the dictates of a fair trial would ordinarily so require’.6 However, having regard to R v Jones,7 the court retains discretion, in respect of a trial, to proceed in a defendant’s absence, including cases where he or she has a genuine but intermittent illness. 8 It was conceded that, by a parity of reasoning, the discretion extends to confiscation proceedings. 4

For a useful discussion of a range of legal problems and issues concerning the accommodation of mentally disordered defendants in the criminal justice system, see Ben Livings and Nicola Wake (eds) ‘The Special Issue: Mental disorder and Criminal Justice’, (2014) 65 (2) Northern Ireland legal Quarterly, 137-258. 5 [2011] EWCA Crim 1198 6 ibid [6] (Hedley J). As the Court pointed out, confiscation proceedings are ‘criminal proceedings’ and thus within Article 6.1 of the ECHR, but because they are part of the sentencing process they do not involve a defendant being 'charged with a criminal offence' and accordingly Article 6.2 ECHR does not apply. 7 [2003] 1 AC 1 8 see Abrahams (1895) 21 VLR 343 distinguished in Howson (1982) 74 Cr App R 172. A conviction was quashed where, taking into account the nature of the appellant's illness and his two operations, the Court of Appeal was satisfied that it would not have been fair to require him to face up to cross-examination on a serious charge given his then state of health (he was not fit to give evidence) and given the fact that he had missed so much of the trial. The jury should have been discharged. The trial lasted 49 working days. H was absent for 15 ½ days, all of

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Bhanji was not ‘unfit to plead’ in the Pritchard sense 9 - he was physically unfit rather than lacking capacity to make decisions - but his illness curtailed his ability to participate in person in confiscation proceedings, and thus the argument mounted on Bhanji’s behalf had to be one of abuse of process. But, even if Bhanji had satisfied the Pritchard criteria, this was not a case where section 4 of the Criminal Procedure (Insanity) Act 1964 (‘CP(I)A 1964’) would have applied to the confiscation proceedings 10 because that provision, which empowers a Court to determine whether a defendant is ‘unfit to plead’, applies only at the stage at which the defendant is about to be arraigned for trial (or is being tried) for an indictable offence, and not to proceedings ancillary to conviction (typically, sentence).11 which were during the prosecution case. H submitted to the trial judge that but for his medical condition, he would have wished to have testified but that he did not feel well enough to stand up to cross-examination. A prison doctor opined that H was fit to understand the case and that he was fit to give evidence provided he sat down. H was taking 10 pain killing tablets a day of an opiate derivative. H’s own doctor expressed more reservations about H’s fitness to give evidence, with a slight fear that H being a 'bit slow' and mentally below par, he would not be able to answer questions as well as he could if fit. 9 Pritchard (1836) 7 Car & P 303. 10 Section 4 provides: (1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried. (2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until anytime up to the opening of the case for the defence. (3) ….; (4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises. (5) The question of fitness to be tried shall be determined by the court without a jury. (6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved. 11 It is submitted that notwithstanding the headnote to McCarthy [1967] 1 QB 68, the issue of unfitness to plead is not one that must be raised before arraignment, but having regard to section 4(2) of the 1964 Act, must be raised no later than the opening of the case for the defence. In McCarthy, the Court stated 'it seems to this court that the question arises in the ordinary case where the prosecution or the defence get up before arraignment, and say to the judge that there is a preliminary issue, namely, as to whether the defendant is fit to plead.' [74] Note the words 'in the ordinary case'.

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The case of Bhanji usefully highlights a number of issues discussed in the Law Commission’s Consultation Paper No.197 (‘CP 197’),12 and the subsequent Issues Paper,13 namely (among other issues), what we mean by ‘unfitness to plead’; whether the Pritchard test for unfitness is too narrow; whether determinations of issues of unfitness to plead should be unitary or disaggregated; disposals, appeals and remissions for trial. The number of hearings of unfitness to plead has been relatively small, although the number has increased since 1992,14 and anecdotal accounts suggest that, in recent years, the incidence of asserted issues of unfitness to plead has risen sharply. In Walls, 15 the Court of Appeal (Criminal Division) called upon judges to ‘rigorously examine evidence of psychiatrists adduced before them’ and for the court to ‘reach its own conclusions’ 16 There may be a significant number of instances when issues of unfitness are raised on a contrived basis (for example, in order to delay the date of judgment, or to ‘cultivate’ mitigation) there is also increased awareness on the part of legal practitioners to be alive to the relevance of any vulnerabilities and disabilities on the part of defendants, victims, and witnesses, in the conduct of the proceedings in question. There are many defendants whose ‘decision making capacity’ might be questioned by their legal advisers and other professionals (for example, probation officers, and social workers) on the grounds, for example, that a client may have a personality disorder or is a problematic alcohol or drug user. It is not always necessary or even advisable for defendants to raise the matter with the Court unless their interests are put at risk. That said, as the case of Bhanji illustrates, trials are becoming increasingly complex to prepare and to conduct, and there will be several stages in the proceedings which require a defendant’s participation. These include (for example) whether to answer questions put by investigators, the preparation of Defence Statements, the preparation of bad character and hearsay applications, whether to give evidence, and – if convicted – possible Newton hearings,17 or confiscation proceedings18, or the making of Serious Crime Prevention Orders (among other orders).

12

Law Com CP No 197, 2010 (n 2). Law Com IP, 2014 (n 2) 14 Law Com CP No 197, 2010 (n 2) See Impact Assessment, page 2. 15 [2011] EWCA Crim 443 16 ibid, (Thomas LJ, as he then was) [38]. 17 Newton (1983) 77 Cr App R 13, (1982) 4 Cr App R (S) 388. 18 R v Ali [2014] EWCA Crim 1658. 13

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Where a defendant’s participation in criminal proceedings is limited (or wholly lacking), whether by reason of illness, physical or mental disability, or having absconded, the question of whether the proceedings should continue, and if so, in what form, must be answered by deciding whether the proceedings are fair and article 6 ECHR compliant.19 This requires a consideration of what we mean by the ‘participation of a defendant’, that is to say, whether his or her participation need only be active or whether it must also be effective. After all, a person may be active in sport but be wholly ineffective.

Participation by the defendant: must it be ‘active’ or ‘effective’? In IH v the Federal Republic of Germany,20 IH complained that he was unfit for trial because he suffered from ‘Pickwick syndrome’ during his trial (which was only discovered later) and that he was not in a position to follow ‘great parts’ of the case. He also complained that other parts of the trial took place in his absence because the Court refused to adjourn the proceedings having wrongly formed the view that an operation he underwent at the time to have a pace-maker implanted, was a delaying manoeuvre. In declaring this part of the application to be manifestly illfounded, 21 the Commission 22 found that IH had not shown that the ‘Pickwick syndrome’ rendered him unfit to stand trial. His capacity to attend the hearings was ‘possibly limited but not excluded’ and that this was ‘duly taken into account by the trial court which held the hearings at intervals’. IH was defended by counsel; he had not alleged that he was not able to instruct his counsel in order to be defended in an adequate manner; and he was able ‘himself to make use of the right to finalise submissions’. In the Stanford case23, the applicant had difficulties in hearing some of the evidence given during the trial. The ECtHR said that Article 6 of the Convention, read as a whole, guarantees the right of an accused ‘to participate effectively in a criminal trial’. It is apparent from the judgment that the word ‘effectively’ (and its concomitant expressions), has a limited 19 Ensslin and others v Germany (1978) 14 DR 64, Stanford v United Kingdom (1994) series A/282-A. 20 Application No. 14453/88, 12 February 1990. 21 Within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 22 Sitting in private. 23 Stanford (n 19).

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meaning. On the facts in Stanford, although ‘in general’, the right includes, inter alia, a defendant’s right to be present and to hear and follow the proceedings, the Court held that there had been no violation of article 6. It attached significance to the fact that Stanford had been ‘ably defended’ by a solicitor and counsel ‘who had no difficulty in following the proceedings and who would have had every opportunity to discuss with the applicant any points that arose out of the evidence which did not already appear in the witness statements’24. In T v UK,25 and V v UK,26 the Court took a stronger line in relation to children, stating that it is essential ‘that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings’.27 It was not necessarily sufficient for the purposes of Article 6.1 that the defendant child was represented by skilled and experienced lawyers. In respect of those two cases, there was arguably more than just a hint that the ECtHR took the view that the Pritchard test (which of course predated the decision in John M28) set the threshold for unfitness too low in order to provide a domestic remedy in cases such as T and V:29 It is not suggested that the applicant’s immaturity and level of emotional disturbance were sufficient to satisfy the test of unfitness to plead. …the Government have not referred the Court to any example of a case where an accused under a disability falling short of that required to establish unfitness to plead has been able to obtain a stay of criminal proceedings on the grounds that he was incapable of fully participating in them, or where a child charged with murder or another serious offence has been able to obtain a stay on the basis that trial in public in the Crown Court would cause him detriment or suffering.30

In the concurring opinion of Lord Reed in T, it was said that there was ‘little evidence before the Court as to the applicant’s ability to follow the 24

ibid [30]. [1999] ECHR 170; the EctHR found that there had been a violation of article 6.1, ECHR. 26 [1999] ECHR 171; the EctHR found that there had been a violation of article 6.1, ECHR. 27 For further discussion see Arthur herein, Chapter 15. 28 [2003] EWCA Crim 3452 29 (n 25) [58]; V v UK (n 26) [60]. 30 T v UK (n 25) [58] 25

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trial proceedings, to participate effectively in the conduct of his defence or to give evidence in his own defence’. 31 In T’s case, the Court found ‘noteworthy’ the findings of a psychiatrist (Dr Vizard) that the posttraumatic stress disorder suffered by the applicant, combined with the lack of any therapeutic work since the offence, had limited his ability to instruct his lawyers and testify adequately in his own defence.32 T, in his memorial had stated that due to the conditions in which he was put on trial, he was unable to follow the trial or take decisions in his own best interests. Following the decisions in T v UK, and V v UK, the then Lord Chief Justice issued in 2000, a Practice Direction stating that, ‘all possible steps should be taken to assist the young defendant to understand and participate in the proceedings’33 The Direction has been superseded by paras.III.30.1 of the Practice Direction (Criminal Proceedings: Consolidation) – ‘Treatment of vulnerable defendants’ - part of which reads: A defendant may be young and immature or may have a mental disorder within the meaning of the Mental Health Act 1983 or some other significant impairment of intelligence and social function such as to inhibit his understanding of and participation in the proceedings…. All possible steps should be taken to assist a vulnerable defendant to understand and participate in those proceedings. The ordinary trial process should, so far as necessary, be adapted to meet those ends.34

In SC v The UK,35 the ECtHR went further than it had in V v UK and T v UK. It accepted the Government’s argument that Article 6.1 does not require that a child on trial for a criminal offence should understand or be capable of understanding every point of law or evidential detail, but added that ‘effective participation’ - in this context - presupposes the following: ….that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or 31

T (n 25) T (n 25)[87]. 33 [2000] 1 Cr App R 483, [3]. For further discussion see Arthur herein at Chapter 15. 34 Inserted by Practice Direction (Criminal Proceedings: Further Directions) [2007] 1 W.L.R. 1790 [emphasis added]. 35 [2004] ECHR 263 32

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Chapter One friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence.36

In its Issues Paper, the Law Commission opined that the Pritchard criteria ‘do not fully align’ with (what it calls) the, ‘separate test of "effective participation" required by article 6 ECHR, and in particular, the requirements set out in SC v United Kingdom’. 37 This may be to exaggerate the extent to which there is misalignment (if any). The cases of V v UK 38 , T v UK 39 , and SC v UK 40 concerned a vulnerable class of persons, namely, children. Their cogitative ability featured significantly, albeit not exclusively, in the reasoning of the Court in SC v UK41 (note the words ‘understand’, ‘able to follow’). There is no reason to suppose that the principles stated in SC v UK42 do not apply to defendants generally, the Court did not disapprove of the reasoning in IH v Germany 43 or in Stanford44 where no violation of article 6 was found. Whilst it must be kept in mind that Strasbourg jurisprudence is evolving, and that standards are not fixed, it is doubtful that the ECtHR would rule that the Pritchard criteria, 45 as updated in John M, 46 is structurally not Convention compliant.47 No such point was made by the ECtHR in Juncal v UK48 in which Pritchard and John M were cited. The relevant issue may boil down to whether the threshold in Pritchard is set correctly. In the cases of V v UK49, T v UK50 and SC v 36

[emphasis added] (see, for example, the above-mentioned Stanford judgment (n 19) § 30). 37 SC v UK (n 35) se also Law Com IP, 2014 (n 2) para 2.9. 38 V v UK (n 26) 39 T v UK (n 25) 40 SC v UK (n 35) 41 ibid 42 ibid 43 IH v Germany (n 20) 44 Stanford (n 19) 45 (1836) 7 Car. & P. 303 KB 46 John M (n 28) 47 These cases are discussed below. 48 John M (n 28) 49 V v UK (n 26)

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UK51, the answer is arguably in the negative, but it is an answer that has to be inferred, because in each case the issue of unfitness was not raised before the domestic trial court (presumably on the assumption that a plea of unfitness would have failed52). Even if there has been ‘misalignment’ between article 6 and the Pritchard criteria, the criteria are capable of being contextualised (and thus updated) with reference to modern practices and the ethos of a modern trial. Subsequent to the decisions of the ECtHR in T v UK53, V v UK54 and SC v UK55, there has been increasing awareness within the UK judiciary and legal profession of the needs of vulnerable participants in criminal proceedings, and of the importance of ‘special measures’ and achieving the ‘best evidence’ – all of which is evident in the bespoke directions given by the judge to the jury in the case of John M.56 In AttGen v O’Driscoll, 57 the Royal Court of Jersey declined to follow Pritchard58, but the Court did not have the advantage of the judgment of the Court of Appeal (Criminal Division) in John M that was handed down on 14 November 2013 (some four months after O’Driscoll). Accordingly, the solution is to adjust the threshold for unfitness (which may require clarifying the scope of the Pritchard criteria), rather than bolting onto the legal test an ‘additional’ or ‘separate’ test of “effective participation”.59 It is important that the threshold for unfitness is not set too high, but it is also important that it is not set too low (because a finding of unfitness does have consequences which a defendant may regard as not being to his or her advantage). There will be cases, such as Friend (No.2),60 where, by reason of an accused’s physical or mental condition, 50

T v UK (n 25) SC v UK (n 35) 52 Indeed, in the cases of T and V, It was not suggested that the applicants’ immaturity and level of emotional disturbance were sufficient to satisfy the test of unfitness to plead V v UK (n 26) [60]; T v UK (n 25) [58]. The issue of unfitness was also not raised in R v Friend [1997] EWCA Crim 816. 53 T v UK (n 25) 54 V v UK (n 26) 55 SC v UK (n 35) 56 The trial took place in December 2002. 57 2003 JLR 390 (9th July 2003); and see Law Com IP, 2014 (n 2) para 2.29(2) and (n 34). 58 Pritchard (n 45) 59 See the discussion below, ‘Whether “decision-making capacity” should be a “test”, “limb”, or a factor’ 60 [2004] EWCA Crim 2661. 51

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unclear aspects of law and practice are exposed (for example, whether continuance of proceedings would be an abuse of process, or whether an adverse inference may be drawn from the defendant’s failure to give evidence).61 The expressions ‘fitness to plead’, ‘unfitness to plead’, and ‘effective participation’, are useful ‘shorthand’, what we are actually considering is a defendant’s ability to engage with the trial process on terms which (although not giving him equivalence of skill and competence possessed by his accusers) gives him the opportunity – with appropriate support - to advance proper arguments and a defence to the charge. In addition, the point made by Baroness Hale in the Cheshire West case62 that people with disabilities have the same human rights as the rest of the human race, is unanswerable.63 It is a statement that resonates with Article 12(1) and (2) of the UN Convention on the Rights of Persons with Disabilities (‘UNCRPD’), namely, that ‘persons with disabilities have the right to recognition everywhere as persons before the law’64 and that State Parties ‘shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’.65 Many defendants will be able to participate effectively in criminal proceedings notwithstanding that their intellectual capacity or decisionmaking skills are limited, provided that those limitations are: (a) taken into account in the proceedings (for example, by fact-finders); and, (b) accommodated, insofar as that is practicable (for example, through special measures). Depending on the disability in question, a defendant’s case might be micro-managed (for example, the provision of an intermediary), while other situations - such as developmental immaturity - might require procedures that pertain to a class of persons (for example, the venue in which the proceedings are conducted.66

61 See Abenaa Owusu-Bempah, ‘Judging the Desirability of a Defendant’s Evidence: An Unfortunate Approach to s.35(1)(b) of the Criminal Justice and Public Order Act 1994’ [2011] Criminal Law Review 689. 62 P v Cheshire West and Chester Council and another: P and Q v Surrey County Council [2014] UKSC 19 63 ibid at [45], 64 UNCRPD, art.12(1). 65 ibid, art.12(2). 66 consider T v UK (n 25), V v UK (n 26) applied in SC v UK (n 35); distinguishing Stanford v UK (n 19) § 26. For further discussion on the issue of developmental immaturity see Arthur herein at chapter 15.

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With those principles in mind, issues of unfitness to plead ought to be seen as part of the rubric relating to vulnerable witnesses and defendants in respect of whom measures are needed to ensure that criminal proceedings are conducted effectively and fairly, having regard to the importance that is to be attached to bringing and concluding proceedings as soon as practicable (i.e., in the interests of justice).

The Nature of ‘Unfitness to Plead’ Proceedings Historical sketch of unfitness to plead: the ‘Pritchard test’ Hale’s statement of the law in Historia Placitorum Coronæ, formed the basis of Mr Justice Parke’s charge to the jury in Dyson,67 followed in Pritchard.68 In Dyson, D, who was deaf and dumb, was indicted for the murder of her ‘bastard’ child. The Court made efforts to address D’s disability by calling upon a witness to attempt to communicate with D using the ‘dumb alphabet’. The witness reported to the Court that D was ‘not so far advanced as to put words together’ and that D was ‘incapable of understanding the nature of the proceedings against her’. A jury was empanelled to determine whether D was sane or not. The jury (having been referred to Lord Hale’s commentary in his Pleas of the Crown, cited above) found that she was not sane. D was ordered to be kept in strict custody until His Majesty’s pleasure was known. The Court did not lay down criteria for determining unfitness to plead, and it did not elaborate on matters encompassed by the expression ‘nature of the proceedings’, which – on one view – is arguably wide enough to include what Duff has styled the ‘normative dimension’ of a criminal trial. 69 Furthermore, the Court had regard to what is now known as ‘special measures’ to accommodate the defendant’s disability insofar as that was practicable. Similarly, in Pritchard, Alderson B directed the jury to decide whether the prisoner (who was deaf and dumb) had ‘sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence….to the charge’. This is the so-called ‘Pritchard test’:

67

(1831) 7 C & P 305. Pritchard (n 45). 69 See, below, ‘Criticisms of Pritchard; and the Law Commission proposals for reforming UTP’ 68

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Chapter One There are three points to be inquired into:- First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence - to know that he might challenge any of you to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. Upon this issue, therefore, if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind. It is not enough, that he may have a general capacity of communicating on ordinary matters.70

Dyson 71 and Pritchard 72 were decided prior to M’Naghten’s case (insanity), 73 and at a time when the degree of scientific and medical knowledge of anatomy, the brain, and the mind, were less advanced than it is today. Lawton QC, 74 in his submissions to the Court in Podola, 75 usefully traced historically the meaning of the word ‘insane’ at common law76 in order to demonstrate that ‘sound memory’ (actually the lack of it) was a factor of insanity, and that anyone who was not of sound memory was unfit to plead: The old phrase used was “in sana memoria”; “memoria” means memory, not mind, while “sana” means sound, and a man could not be tried unless he had a good and “sound memory”: see Hale’s Pleas of the Crown, vol. 1, pp. 34-35. That was a factor of insanity, and anyone who did not have it was “insane” and unfit to plead. The emphasis on a “good and sound” memory runs through the law on this matter: see Beverley’s Case [Reference was also made to Somervile’s Case]. Sir John Hawles in his remarks on the trial of Charles Bateman [Bateman’s Case] said that the true reason of the law was that “a person of ‘non sana memoria’, and a lunatick during his lunacy, is by an act of God....disabled to make his just defence. There may be 70

Pritchard (n 45) 304-305 Dyson (n 67) 72 Pritchard (n 45) 73 (1843) 1 C & K 130. For further discussion on the insanity defence see De Than and Elvin, chapter 3, herein. 74 As he then was. 75 On behalf of the appellant. Podola [1960] 1 QB 325 76 As well as for the purposes of the Criminal Lunatics Act 1800. 71

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circumstances lying in his private knowledge, which would prove his innocency, of which he can have no advantage, because not known to the persons who shall take upon them his defence,” and criticised the “cruel and inhumane law” 33 Hen. 8, c.20, enacting, inter alia, that a man who fell mad after he committed high treason should notwithstanding be tried, but repealed by 1 & 2 Philip and Mary, c.10, so that the law was as it was at common law, and if Bateman was of “non sanae memoriae he ought not to have been tried, much less executed.77

The Court declined to treat a mere loss of memory as falling within Hale’s statement of the criteria for determining whether a defendant was unfit to plead, remarking that the expression ‘sound memory’ was to be contrasted with ‘absolutely mad’ and with ‘phrenzy’:78 It is to be observed....that the above passages occur in Chapter IV where Sir Matthew Hale is considering “the defect of idiocy, madness and lunacy” in reference to criminal offences. It will also be seen that in the first passage quoted, “sound memory” is contrasted with “absolutely mad” and with “frenzy.” Accordingly, in our judgment, the word “memory” there used does not relate to recollection but to a state of mind. We think that this meaning is to be attached to the word “memory” not only in the passages in Hale but also in the passage in Coke’s Notes on Beverley’s Case, and in other authorities previous to the Act of 1800 to which we were referred.

Section 2 of the Criminal Lunatics Act 1800 79 created a statutory regime for determining whether a defendant was unfit to be tried, but the single qualification was that the defendant was ‘insane’ at the moment of his/her trial: if any person indicted for any offence shall be insane, and shall upon arraignment be found so to be by a jury lawfully impanelled for that purpose, so that such person cannot be tried upon such indictment....it shall be lawful for the Court before whom any such person shall be brought to be arraigned ....as aforesaid to direct such finding to be recorded, and 77

Podola (n 75) 341 ibid 353 79 Repealed by the Statute Law (Repeals) Act 1981, Sch 1, Pt III. Note that by s.8(5)(a) of the Criminal Procedure (Insanity) Act 1964: ‘(a) the Criminal Lunatics Act 1800 and subsections (2) and (4) of section 2 of the Trial of Lunatics Act 1883 shall be repealed except as respects cases where the accused was arraigned before the time mentioned in subsection (3) of this section’. 78

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thereupon to order such person to be kept in strict custody until His Majesty’s pleasure shall be known.80

It was left to the common law to construe what “insane” meant for the purpose of s.2 of the Act. Indeed, in order to give a degree of protection to defendants whose medical or physical disability was profound, the Courts gave the word “insane” (as it appears in s.2, CLA 1800) an extended meaning. Thus, in Podola, the Court of Criminal Appeal observed that section 2 has ‘in many cases since 1800 been construed as including persons who are not insane within the M’Naghten Rules, but who by reason of some physical or mental condition, cannot follow the proceedings at the trial and so cannot make a proper defence in those proceedings’. In Rex v the Governor of HMP Stafford, 81 D, who was deaf and illiterate, submitted that his disability did not constitute insanity within the meaning of section 2 of the 1800 Act. The Court rejected that submission, but it did so in order to prevent "a great injustice": I should be very sorry if we were compelled to adopt the argument that the finding here does not amount to a finding that the prisoner is not sane. It might work great injustice in many cases to put a prisoner against whom such a finding was recorded upon his trial as if he were perfectly sane, and if he was found guilty to punish him as an ordinary criminal; or it might be the cause of much mischief if he were found not guilty and were allowed to go free. I am glad to say that we are not driven to accept the argument.

The Court noted that section 2 of the 1800 Act employed the expression ‘insane’ and not ‘inability to plead’, or ‘inability to understand the proceedings’, or ‘inability to communicate with other persons’. The Court was not prepared to say that Parke J (in Dyson82) and Alderson B (in Pritchard83), and ‘other judges who consider the matter’, had misdirected the jury in those cases. The reasoning in the HMP Stafford case 84 , supported (the Court opined) by Berry,85 was that there was no question of

80

Criminal Lunatics Act 1800, s.2 [1909] 2 KB 81 82 Dyson (n 67) 83 Pritchard (n 45) 84 HMP Stafford (n 81) 85 (1876) 1 QBD 447 81

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general insanity ‘but only of insanity from the point of view of not understanding the nature of the proceedings’.86 The Criminal Procedure (Insanity) Act 1964, as originally enacted, made a number of procedural amendments, but it did not modify the test for determining whether the defendant is unfit to plead or not. Although the 1964 Act has been amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and by the Domestic Violence, Crime and Victims Act 2004, neither of those amending enactments modified the common law test of unfitness to plead.87 Unfitness to plead is now determined by a judge rather than by a jury.88

Whether a finding of unfitness is a ‘holding position’ In its Issues Paper, the Law Commission alluded to representations made by some consultees responding to the CP that a finding of a lack of capacity, and any subsequent determination of the facts, is a ‘holding position’.89 This viewpoint is, at first sight, highly attractive (perhaps even well-founded). But, if we treat it as the ‘touchstone’ by which rules are to be formulated in relation to every aspect of procedure for determining unfitness to plead, including case-disposal following a finding of unfitness, we encounter difficulties. 90 This is particularly evident in relation to the circumstances in which a defendant (who has recovered sufficiently from his condition) may be remitted for trial at his request or at the request of the Crown. In his treatise Historia Placitorum Coronæ, 91 Hale set out the circumstances in which the defendant: (a) ought not to be arraigned (but ‘remitted to prison until [his] incapacity be removed’); or, (b) his trial or judgment should be ‘respited’; or, (c) his execution should be ‘stayed’.92 86

HMP Stafford (n 81) [Lord Alverstone C.J] see Erskine [2009] EWCA Crim 1425 [85]. 88 Domestic Violence, Crimes and Victims Act 2004, section 4(5). 89 Law Com IP, 2014 (n 2) para 6, 15, 28. 90 Discussed below under the heading, ‘Remitting for trial: requests by the Crown’. 91 That is to say, ‘The History of the Pleas of the Crown’, Sir Matthew Hale, The History of the Pleas of the Crown, 1736. 92 'If a man in his sound memory commits a capital offence, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrensy, but be remitted to prison until that incapacity be removed. The reason is, because he cannot advisedly plead to the indictment. And if such person after his plea, and before his trial, becomes of non-sane memory, he shall 87

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Each of those outcomes implies a postponement of the process and not a final disposal, and yet, the impression is to the opposite effect largely because instances of a resumption of proceedings, following disposal, seem to be unknown. This is not surprising as there are (currently) limited powers to remit a defendant for trial in the event that he recovers from his condition. Indeed, there would seem to be only one such instance where this is possible,93 namely, upon the direction of the Secretary of State94 after consultation with the ‘responsible clinician’, where: (a) there has been a finding of unfitness to plead; (b) it is found that the defendant did the act or made the omission charged against him; and, (c) he is detained under a hospital order with a restriction made under section 41 of the Mental Health Act 1983. For the reasons developed in this paper, there is a strong principled argument for powers to remit for trial to be widened, not least because it is clearly desirable (i.e., in the interests of justice) that final judgment is reached in criminal proceedings if practicable. With that objective in mind, a hearing to determine the facts under section 4A of the 1964 Act ought to be regarded as a hearing of last resort and not embarked upon until every possible effort has been made to allow a defendant to regain his fitness.95 Alternatively, in appropriate cases, an out-of-court disposal may be warranted if a defendant is: (a) unfit to plead; (b) requires care and assistance; and, (c) a section 4A-type hearing would not be in the public interest.96 Where a determination of the facts does take place, and on the basis that a finding of unfitness is a ‘holding position’, then the existing requirement that a jury need only determine whether the defendant ‘did the act or made the omission’, has a degree of logic about it. If the jury finds that the defendant did not do the act (etc.), then one need enquire no further. If, however, the defendant did do the act, then the Court is as not be tried; or if after his trial he become of non-sane memory, he shall not receive judgment; or if after judgment he become of non-sane memory, his execution shall be spared; for, were he of sound memory, he might allege somewhat in stay of judgment or execution. But because there may be great fraud in this matter, yet, if the crime be notorious, as treason or murder, the Judge before such respite of trial or judgment, may do well to impannel a jury to inquire ex officio touching such insanity, and whether it be real or counterfeit.' ibid. 93 See para 2.38 of Law Com CP No 197, 2010 (n 2). 94 Pursuant to s.5A(4) of the CP(I)A 1964. 95 As the Commission appears to accept: Law Com IP, 2014 (n 2) paras 7.25-26. 96 ibid para 5.30

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much concerned about the well-being of the public as it is about the defendant. The House of Lords in Antoine,97 and the Court of Appeal in R v MB,98 made reference to the contrasting terms of the Criminal Lunatics Act 1800 and the Trial of Lunatics Act 1883. The 1800 Act provided that if the jury found D to be insane at the time of ‘treason, murder or felony…and such person is acquitted’ then’…the jury shall be required to find specially whether such person was insane at the time of the commission of such offence …’ By contrast, section 2(1) of the 1883 Act required juries to focus on whether D was insane ‘at the time when the act was done or the omission made….’ This is essentially the same wording as that which appears in section 4A(2) of the CP(I)A 1964 where D is unfit to plead. Thus, whether the issue is one of insanity, or unfitness to plead, the purpose of the special procedure appears to be the same, namely, to protect society against the possible recurrence of the conduct (perhaps dangerous conduct) of an insane/unfit person.99 This, it is submitted, appears to have been the view of the House of Lords in R v H100 Although the outcome of the proceedings may be that the defendant is detained under the Mental Health legislation, the theoretical protection for a defendant who is found unfit to plead is (or should be) that the primary proceedings have been postponed and not concluded.

97

[2000] 2 Cr.App.R. 94. See further Rix, herein, at Chapter 4. [2012] EWCA Crim 770 99 Consider the speech of Lord Diplock in R v Sullivan [1984] AC 156, 172, cited in R v MB (ibid [35]). Note that in Antoine (n 97), Lord Hutton said that the purpose of the hearings under s.4A CP(I)A 1964 was, ‘To strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea. The need to protect the public is particularly important where the act done is one which has caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future.’ 100 [2003] 1 WLR 411; [2003] UKHL 1. Lord Bingham said: ‘…on the one hand to treat the accused person in a fair and humane way and on the other to protect the public against the risk of danger posed by a person who could not (because of insanity) be held full responsible for his conduct or could not (because of his unfitness to plead) be tried in the ordinary way to decide whether he was guilty or not’. 98

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Chapter One

Criticisms of Pritchard and initial Law Commission proposals for reforming UTP There has been considerable criticism of the rules relating to unfitness to plead of which the principal ones have been: (a) that Pritchard is unduly limited to intellectual understanding rather than an accused’s decision-making capacity by reason of a mental or physical condition; (b) that the section 4A CP(I)A 1964 procedure limits the customary rights of a defendant (including testifying on his own behalf,101 and his limited ability to give instructions in the expectation that they will be complied with); (c) limited powers to remit a case following a defendant’s recovery; and (d) shortcomings with respect to disposals and appeals. Under the existing Pritchard test, the mere fact that a defendant may not be capable of acting in his or her best interest is not sufficient to warrant a finding of unfitness to plead102, and even a defendant whose mental state is ‘grossly abnormal’ and who is unable to view the nature of his actions in ‘any sensible sort of manner’, may not necessarily be considered unfit to plead.103 Although Berry104 is often cited in support of proposals for reforming the Pritchard test, it is important to bear in mind that nowhere did the learned trial judge, in Berry, deal with the Pritchard criteria upon which the jury had to base their findings. 105 Thus, as the Court remarked, the jury was ‘never given the chance to consider these matters’.106 The current rules in respect of unfitness to plead are imperfect and reform is warranted. Doing nothing is not an option. There is no doubting the industry and detailed consideration that the Law Commission gave to this topic in CP 197, it is respectfully submitted that there are three instances where the Commission took a ‘wrong turn’, of which one has led to a ‘dead end’. The first ‘wrong turn’ was the suggestion that cases such as Diamond, 107 Erskine, 108 Murray, 109 and (presumably) Moyle, 110 made ‘a 101

See Walls (n 15), [37(i)] Robinson [1968] 3 All ER 557 103 Berry (1978) 66 Cr App R 156. See also, Law Com IP, 2014 (n 2) para 2.2. 104 Berry ibid. 105 The Crown conceded that there had been a misdirection. 106 Berry (n 103) 158 107 [2008] EWCA Crim 923 108 Erskine (n 87) 109 [2008] EWCA Crim 1792 102

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mockery of what we know to be the concept of the participation’ and that such participation as there was ‘is ultimately a sham in which the legal professionals and the courts are forced to collude’. 111 Arguably, shortcomings in the process, when they do occur, are due (in part) to what the Court in Murray called ‘the potential mismatch between the legal test and psychiatric understanding in these matters’, 112 and which - as the Commission pointed out - represent a possible reflection of the fact that there is no standard psychiatric test for psychologists to use when determining whether a defendant is fit to plead not.113 Secondly - given the foregoing - the Commission proposed that there should be both a ‘legal test’ and a ‘defined psychiatric test’ to assess a defendant’s decision-making capacity. The Commission was not then able to offer a definition of that psychiatric test: it merely stated that such a test should be developed, 114 and that research was then ‘ongoing’. 115 The proposal is no longer pursued by the Commission116 – presumably because it proved too difficult to devise a workable test. Indeed the Commission has stated that the development of such a test ‘lies outside the scope’ of its current project.117 Thus, the proposed defined psychiatric test appears to have reached a ‘dead end’. Thirdly, much of the Commission’s reasoning in CP 197 appears to have been influenced by the scholarly work of Duff, in ‘Trials and Punishment’, 118 and ‘Fitness to Plead and Fair Trials: Part One: A Challenge’,119 in which Duff argues that the defendant must be able (inter alia) to understand the normative dimension to his or her trial: Certain basic cognitive and intellectual capacities are clearly necessary for an ability to understand the trial, but are equally clearly not sufficient for fitness to plead. In particular, since the trial aims to determine whether the defendant is guilty of wrongdoing, she must be able to understand this normative dimension to the trial. She must be able to grasp what it is to be charged with, and condemned for, a crime, and to appreciate the 110

[2008] EWCA Crim 3059 Law Com CP No 197, 2010 (n 2) para 2.86. 112 Murray (n 109) [6] 113 See Law Com CP No 197, 2010 (n 2) para 5.14 114 ibid para 5.17. 115 ibid para 5.40. 116 Law Com IP, 2014 (n 2) para 4.15 117 ibid para 4.16. 118 Professor RA Duff, Trials and Punishment (1986; Cambridge University Press) 119 [1994] Crim LR 419 111

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The above passage may represent an ideal state of affairs, it does not provide a practical basis on which to frame rules relating to unfitness to plead. Furthermore, neither English law nor Strasbourg jurisprudence requires a defendant to have an understanding of the ‘normative dimension’ to the trial.121 Mackay has made the point that, ‘there are many defendants who have warped standards of morality but who are clearly fit to plead’.122 In fairness, it is doubtful that Duff envisaged that his analysis would be adopted to the extent that it appears to have been in CP 197, and that his aim was to ‘explicate the values and purposes - the ideals - which should be central to a system of criminal law and punishment’.123 While it was entirely right for the Commission to have attached considerable importance to the values and ideals articulated by Duff, it was also necessary for the Commission to take a pragmatic, realistic view of what is required by way of reformed rules relating to unfitness to plead. This the Commission has done in its ‘Issues Paper’.124

120

ibid 419, 421, 422 [emphasis added]. See also, the commentary by Professor Don Grubin, ‘Fitness to plead and fair trials: Part 2: A reply’, [1994] Criminal Law Review 423; and Don Grubin, ‘What constitutes fitness to plead?’ [1993] Criminal Law Review 478. 122 Ronnie Mackay, ‘Mental Condition Defences in the Criminal Law’ (1995) 217; an observation cited in Law Com CP No 197, 2010 (n 2) para 1.9. 123 RA Duff: ‘….my discussion will begin with certain features of the English legal system, which are also to be found in many other legal systems. I will argue that they should be explained and justified in terms of certain non-consequentialist and Kantian values: but their role in my argument is meant to be illustrative and heuristic rather than probative….my aim is not simply to offer an explanatory analysis or justification of the status quo: it is rather to explicate the values and purposes - the ideals - which should be central to a system of criminal law and punishment, and in the light of which we can criticise existing legal institutions and practices which fall short of them.’; Trials and Punishment, (n 118) 11. 124 Law Com IP, 2014 (n 2) 106 pages. 121

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Law Commission ‘Issues Paper’: the start of a credible ‘blueprint’ for reform Redefining the legal test: Pritchard - a deficient test or a test misunderstood? The Commission has not repeated its earlier claims that cases such as Erskine 125 , Diamond 126 , and Moyle 127 , are examples of a process that rendered participation in the trial a ‘sham’ in which legal practitioners and the courts were ‘forced to collude’. 128 Instead, in its Issues Paper, the Commission suggests that the Pritchard test does not adequately address aspects of the modern trial process, such as the giving of evidence by the defendant and that although the modern formulation of the test in John M 129 does address this (discussed below), ‘it does not appear to be consistently employed by clinicians or the courts’. 130 If true, this observation is not a criticism of the test itself, but highlights a deficiency in the learning of professionals regarding developments in the trial process. The Law Commission pointed to a number of other problems regarding the application of the Pritchard criteria by medical experts, highlighting ‘in particular’:131 (1) A lack of consistency in the application of the Pritchard criteria; (2) Undue reliance on discretion in the assessment; (3) Frequent failure by experts to apply all the Pritchard criteria; and (4) A lack of objectivity in the assessments.

But, again, these problems have more to say about the quality or training of some medical practitioners, as well as weaknesses in the level of scientific/medical knowledge, rather than revealing deficiencies in the legal test. Indeed the Commission has stressed that the ‘important issue’ is the training and experience of the individual expert.132

125

Erskine (n 87) Diamond (n 107) 127 Moyle (n 110) 128 Law Com CP No 197, 2010 (n 2) para 2.86 129 John M (n 28) 130 Law Com IP, 2014 (n 2) para 2.4 131 ibid para 4.4. 132 ibid para 4.21 126

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The Pritchard test, and ‘decision-making capacity’ In the Commission’s opinion, the current Pritchard test places ‘disproportionate emphasis’ on a defendant’s cognitive ability rather than on matters that might interfere with his or her ability to make rational decisions in criminal proceedings. 133 But, how limited is the modern Pritchard test? As Exworthy has pointed out,134 the Pritchard test has crystallised into four main areas. He notes that, ‘[t]he effect a defendant’s mental condition has on his ability to comprehend proceedings is the relevant factor rather than the mere existence of that condition’. Key factors include: i) An appreciation of the charges and potential consequences (including the significance of the potential pleas), ii) An ability to understand the trial process, iii) A potential for the defendant to participate in that process, and iv) The ability to work collaboratively with his lawyer on his defence.

Those four areas require elaboration. In the case of John M,135 the trial judge tailored the Pritchard principles and directed the jury that in order to be fit to stand trial a defendant must be capable of doing six things, and that it was sufficient for the defence to persuade them (on the balance of probabilities) that any one of those things was beyond John M’s capabilities: (1) Understanding the charges; (2) Deciding whether to plead guilty or not; (3) Exercising his right to challenge jurors; (4) Instructing solicitors and counsel;136 133

ibid para 2.6. Tim Exworthy; ‘Commentary: UK Perspective on Competency to Stand Trial’, (2006) 34(4) Journal of the American Academy of Psychiatry and Law 466–71. 135 John M (n 28). 136 The trial judge gave the following direction: ‘This means that the defendant must be able to convey intelligibly to his lawyers the case which he wishes them to advance on his behalf and the matters which he wishes them to put forward in his defence. It involves being able (a) to understand the lawyers' questions, (b) to apply his mind to answering them, and (c) to convey intelligibly to the lawyers the answers which he wishes to give. It is not necessary that his instructions should be plausible or believable or reliable, nor is it necessary that he should be able to see that they are implausible, or unbelievable or unreliable. Many defendants put 134

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(5) Following the course of the proceedings;137 (6) Giving evidence in his own defence.138

The legal directions (some of which appear in the footnotes herein) were extensive, and carefully crafted, and they were subsequently approved by the Court of Appeal (Criminal Division). The directions are susceptible to the criticism that they place too much emphasis on a defendant’s intellectual capacity (evidenced by the words ‘understand’, ‘intelligibly’, ‘apply his mind’) rather than on his decisionmaking capacity, it is tentatively submitted that a defendant who is forward cases and explanations which are implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for.’ [21]. 137 The trial judge directed the jury what this entailed: ‘This means that the defendant must be able (a) to understand what is said by the witness and by counsel in their speeches to the jury and (b) to communicate intelligibly to his lawyers any comment which he may wish to make on anything that is said by the witnesses or counsel. Few defendants will be able to remember at the end of a court session all the points that may have occurred to them about what has been said during that session. It is, therefore, quite normal for the defendant to be provided with pencil and paper so that he can jot down notes and pass them to his lawyers either as and when he writes them, or at the end of the session. (Lawyers normally prefer not to be bombarded with too many notes while they are trying to concentrate on the evidence). There is also no reason why the defendant's solicitor's representative should not be permitted to sit beside him in court to help with the note taking process.’ [22] He added, ‘It is not necessary that the defendant's comments on the evidence and counsels' speeches should be valid or helpful to his lawyers or helpful to his case. It often happens that a defendant fails to see what is or is not a good point to make in his defence. The important thing is that he should be able to make whatever comments he wishes.’ [23]. 138 As to this, the judge directed the jury that, ‘This means that the defendant must be able (a) to understand the questions he is asked in the witness box, (b) to apply his mind to answering them, and (c) to convey intelligibly to the jury the answers which he wishes to give. It is not necessary that his answers should be plausible or believable or reliable. Nor is it necessary that he should be able to see that they are implausible or unbelievable or unreliable. Many defendants and other witnesses give evidence which is either in whole or in parts implausible, unbelievable or unreliable. The whole purpose of the trial process is to determine what parts of the evidence are reliable and what parts are not. That is what the jury are there for. Nor is it necessary that the defendant should be able to remember all or any of the matters which give rise to the charges against him. He is entitled to say that he has no recollection of those events, or indeed of anything that happened during the relevant period.’ [24]

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incapable of doing one or more of the things set out in John M probably also lacks decision-making capacity (or significant capacity). This view appears to be shared by the British Psychological Society (‘BPS’). 139 Accordingly, the directions in John M did go to the issue of the defendant’s ability to participate effectively in his trial,140 and not merely to issue of his intellectual capacity. Equally important is the fact that the decision in John M demonstrates that the legal test for determining fitness to plead is not so rigidly fixed that it cannot be modified or applied in a manner that has regard to current practice and procedure for conducting criminal proceedings, or that it cannot accommodate advances in science or improvements in our understanding of a person’s physical and mental functioning. For example, as the Court in Walls141 pointed out, there are now available to those with learning difficulties, facilities that can assist them to participate in criminal proceedings such as the use of an intermediary under the Court’s inherent powers, as described in the Sevenoaks Youth Court case.142 In Walls143, the Court remarked that consideration should be given to the use of these ‘or other ways in which the characteristics of a defendant…can be accommodated with the trial process so that his limitations can be understood by the jury’. 144 The value of appropriately qualified intermediaries was highlighted in The Queen (on the Application of OP),145 where the Court suggested that there are likely to be two roles during a trial for which an intermediary is fitted: The first is founded in general support, reassurance and calm interpretation of unfolding events. The second requires skilled support and interpretation

139

Law Com IP, 2014 (n 2) para 2.21. The meaning of ‘effective participation’ has been discussed above: ‘Participation by the defendant: must it be “active” or “effective”?’ 141 Walls (n 15) 142 [2009] EWCA Crim 3088 and note s.33BA(3), (4) of the Youth Justice and Criminal Evidence Act 1999 Not in force by 7 July 2014. There have been anecdotal accounts of intermediaries having been used for purposes other than their designated role (for example to counsel/advise the accused). If true, these misuses need to be addressed. 143 Walls (n 15) 144 per Thomas LJ, as he then was; [37] 145 [2014] EWHC 1944 (Admin) 140

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with the potential for intervention and on occasion suggestion to the Bench associated with the giving of the defendant’s evidence.146

In R v Cox147 (cited in OP above) the Court of Appeal again attached importance to what must be the overriding consideration, namely, that criminal proceedings are fair: ….the overall responsibility of the trial judge for the fairness of the trial has not been altered because of the increased availability of intermediaries, or indeed the wide band of possible special measures now enshrined in statute, and it will always be for the court to adapt the processes to ensure that an individual is not disadvantaged.148

Much work continues to be done to develop and enhance ‘special measures’ for vulnerable persons – whether they are defendants or witnesses. As the case of OP exemplifies, there are resource implications in the provision of special measures, but this should not weaken adherence to the fundamental principle of the fairness of the trial process.

Whether ‘decision-making capacity’ should be a ‘test’, ‘limb’, or a factor In response to CP 197, the Commission found considerable support from legal and clinical practitioners for a legal test that incorporated both effective participation and decision-making capacity. The central issue seemed to be how those two concepts should be combined, and in its Issues Paper the Commission identified three options ‘for combining the two elements’:

(1) A decision-making capacity test, implicitly informed by effective participation; (2) An effective participation test, framed around the John M149 criteria with an additional decision-making capacity limb; (3) An effective participation test, using the wording of SC v United Kingdom,150 with explicit incorporation of decision-making capacity.151 146

ibid Rafferty LJ, [34] [2012] EWCA Crim 549 148 ibid [29] 149 John M (n 28) 150 SC v UK (n 35) 151 Law Com IP, 2014 (n 2) paras 2.7–2.34. 147

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In respect of these three options it will be seen that regardless of whether ‘decision-making capacity’ is referred to as a ‘test’ or a ‘limb’, or as something to be explicitly incorporated, such capacity would be an essential element of a revised legal test. But, as with any test, when any of its essential elements is not established, the test fails. Had the Commission been able to put forward a dependable and workable psychiatric test for assessing a defendant’s ‘decision-making capacity’, this would at least have provided legal practitioners and judges with a tool by which such capacity could be measured (if it exists at all). But, no such test is put forward. Without it, attempting to satisfy the requisite element seems almost doomed from the start. And, without such a psychiatric test, option 1 is similarly fated, and might only be saved if the ‘test’ is sufficiently ‘informed by effective participation’, in which case, the true test is that of ‘effective participation’. What is more, a defined (and workable) psychiatric test might have served to clarify what the expression ‘decisionmaking capacity’ means in the context of unfitness to plead determinations. The absence of such a test deprives the court of that assistance, making it more difficult for a court to gauge whether or to what extent the Pritchard criteria (updated in John M) is deficient. Presumably the courts would be left to define what ‘decision-making capacity’ is, how it is to be assessed, and what level of capacity is required in order for a defendant to be found unfit to plead. This would not be a satisfactory state of affairs, with the prospect of different experts reaching different conclusions via diverse paths of reasoning (and assessment tools). In its Consultation Paper, the Commission provisionally proposed that an accused should be found to lack capacity if he or she is unable to: (a) Understand the information relevant to the decision; (b) Retain that information; (c) Use or weigh that information as part of the process of making the decision; or, (d) Communicate his decision (whether by talking, using sign language or any other means).152

The proposal follows the language of section 3 of the Mental Capacity Act 2005, which the Commission reasoned ‘ensures a focus on the decision-making process rather than, for example, the content of a person’s decision’.153 The 2005 Act was the product of considerable work 152 153

Law Com CP No 197, 2010 (n 2) para 3.13. ibid, para 3.31.

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undertaken by the Law Commission culminating in its 1995 Report on ‘Mental Incapacity’. 154 The Report, detailed as it is, does not discuss incapacity in the context of criminal trials, and therefore the Pritchard criteria were neither analysed nor mentioned.155 A basic search of information in the public domain reveals the existence of several methods/tools for assessing ‘decision-making capacity’. These include the ‘Assessment of Capacity for Everyday Decision Making’ (‘ACED’), where the factors are (in essence): (a) understanding; (b) appreciation; (c) reasoning; and, (d) expressing a choice.156 It will be seen that the ACED factors are broadly comparable to those listed in section 3 of the Mental Capacity Act 2005. Factors that may be workable in practice in the context of everyday decision-making or medical treatment are not necessarily capable of being suitably adapted or applied in the context of criminal trials where matters of law, practice and procedure, are not only complex, but also wholly alien to most people. Inferentially, both the Commission and the ECtHR appear to have had this point in mind. Thus, the former sought responses from consultees on whether there should be a demarcation of decisions for which a defendant requires capacity, on the basis that this would highlight that ‘sufficient decision-making capacity does not require an ability to engage with the more complex decisions required in a criminal trial’, adding that the ‘minute consideration of those complex decisions may be beyond the capacity of many fit defendants’.157 In SC v UK158, the ECtHR spoke in general terms that a defendant should have a ‘broad understanding’ of the nature of the trial process and that he should be able to understand ‘the general thrust’ of what is said in court. 159 Perhaps tellingly, the Commission suggested that these qualified levels of understanding ‘would reflect the approach in competency assessments in civil proceedings, as 154

Law Commission, Item 9 of the Fourth Programme of Law Reform: Mentally Incapacitated Adults, Law Com Rep No 231, 1995 (n 2). 155 This is not a criticism. On the contrary: the type of decisions within the scope of the Report related to an individual’s personal, financial or medical affairs. 156 Jason Karlawish, ‘Assessment of Capacity for Everyday Decision-Making’ (A.C.E.D) http://www.uphs.upenn.edu/adc/pdf/ACED%20Packet_final.pdf; (last accessed 16/12/2014) James M. Lai, M.D., Jason Karlawish, M.D. ‘Assessing the Capacity to Make Everyday Decisions: A Guide for Clinicians and an Agenda for Future Research’, (2007) 15:2 American Journal of Geriatric Psychiatry 101. 157 Law Com IP, 2014 (n 2) para 2.36 158 SC v UK (n 35) 159 ibid [29].

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referenced by the BPS160 that capacity for trial is not a state of perfect engagement and comprehension, but a ‘good enough’ level of participation’.161 In its Issues Paper, the Commission - while alluding to the section 3 of the Mental Capacity Act criteria 162 - did not restate (in terms) its provisional proposal in CP 197 that unfitness to plead should be determined with reference to the factors listed in section 3 of the 2005 Act. It may have decided that the point was best left open, having noted that ‘a number of clinicians (including the majority of consultants at the Edenfield Centre163) felt that the Pritchard test lends itself to a ‘sufficient level of interpretation and utility’ while the British Psychological Society (‘the BPS’) felt that the Pritchard test already implicitly requires decisionmaking capacity’. 164 It is by no means evident that the views of the Edenfield Centre and the BPS were wrong. The former appears to have concluded that the Pritchard/John M criteria are not wholly inflexible, while the BPS provides further support for the view that there is no value in stipulating an additional decision-making capacity limb, or element, to the criteria.165 Pulling the strands together, it is questionable whether it is prudent to specify as an element of the legal test for ‘unfitness to plead’, the defendant’s ‘decision-making capacity’ given: (a) the absence of a workable psychiatric test for these purposes,; (b) that the precise meaning of ‘decision-making capacity’ is obscure, and (c) that ‘decision-making capacity’ may already be implicitly required under the Pritchard test (as updated by John M). Those two judicial decisions are not the ‘last word’ on unfitness to plead, they do provide the most satisfactory starting point for reform. It is submitted that there is no reason to go further than to specify that the Court, when considering the Pritchard/John M criteria, may have regard to the extent to which the defendant’s capabilities are deficient in the areas of (a) understanding, (b) appreciation, (c) reasoning, and (d) expressing a choice (for example, the ACED factors, but applying an ordinary meaning to each) when determining whether or not the defendant is unfit to plead. It should be open to a court to receive expert 160

British Psychological Society. Law Com IP, 2014 (n 2) para 2.37 [emphasis added]. 162 ibid para 2.12. 163 ibid Footnote 25 reads: ‘The Edenfield Centre is an adult medium secure forensic mental health unit in Manchester’. See also para 2.2. 164 Law Com IP, 2014 (n 2) para 2.21. 165 ibid para 2.29 (2). 161

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opinion on the issue of unfitness, the final decision should rest with the court: expert opinion is not infallible (although it must be recognised that judicial opinion is not always infallible either).

Defendant participation in criminal proceedings, and his/her ‘best interests’ Critics have pointed to what they regard as a significant discrepancy between the test for unfitness in criminal proceedings, and the test of capacity in civil proceedings (for example, inheritance litigation) which has regard to a litigant’s ‘best interests’.166 This is not to compare likewith-like. Section 2(1) of the Mental Capacity Act 2005 provides: For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

In civil cases, the central issue usually relates to the private rights, liabilities and obligations of each litigant to the proceedings. Case disposal will often turn on what is agreed by each litigant (for example, the division of property; the acceptance of an offer in damages; undertakings that will bind him; or provision for long-term care). Accordingly, it is easy to understand why a litigant’s decision-making capacity, in terms of his or her ‘best interests’, is a highly material consideration. This, of course, leaves open the question of whether or when it is appropriate for a third party (perhaps a judge or government agency) to substitute (and to impose) their opinion for that of the litigant as to what is in the latter’s ‘best interests’. By contrast, criminal proceedings involve other considerations. A defendant will understandably take the view that his ‘best interest’ is an acquittal or a permanent stay of proceedings. That said, there will be many instances where a decision made by the defendant may be decisive of the outcome, for example, with regards to plea, basis of any guilty plea, whether to pursue a defence of (for example,) diminished responsibility, loss of self-control, or self-defence. 167 But, interests held in criminal proceedings extend beyond those of the defendant and include the 166

ibid para 2.8 For further consideration of the partial defences see chapters 11-14 of this monograph.

167

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‘interests of justice’ – which is a wider interest that includes the public interest as well as the interests of victims and witnesses. Accordingly, rules of practice and procedure that are formulated primarily to cater for the defendant’s ‘best interests’ may pay insufficient regard to the wider interest as well as to a defendant’s right to personal autonomy.

Personal autonomy and the ‘best interests’ of the defendant Catering for a person’s ‘best interests’ is clearly a well-intentioned objective, and as every legal practitioner knows, part of his/her task when representing the lay client, is to protect the latter from himself or herself. Criminal proceedings are likely to put even the fittest of defendants under considerable physical and mental strain. The practitioner can give advice (often strong advice) but, usually (although not invariably) it is the client who must make decisions relating to the case (for example, as to plea). A decision may be ‘binary’, being either plainly correct or plainly wrong, while other decisions involve a calculated prediction of an outcome which may or may not come to pass. Decisions taken on the basis of beneficence can sometimes be patronising. A substituted decision, even if it may be the wisest decision, may trespass on a person’s freedom of self-determination (‘personal autonomy’). There is also force in the argument made by Pearl (albeit in the context of defining ‘legal capacity’) that’[legal] capacity consists both of the recognition of a person as a holder of rights and the ability to exercise those rights’.168 Those comments were made with reference to Article 12.3 of the UN Convention on The Rights of Persons with Disabilities (‘UNCRPD’), which requires State Parties to ‘take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’. The Committee on the Rights of Persons with Disabilities (‘CRPD’) has emphatically complained (in relation to article 12 of the Convention)169 that ‘there has been a general failure to understand that the human rights-based model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision168

Alex L Pearl, ‘Article 12 of the United Nations Convention on the Rights of Persons with Disabilities and the Legal Capacity of Disabled People: The Way Forward?’ (2013) 1(1) Leeds Journal of Law & Criminology 1. 169 Committee on the Rights of Persons with Disabilities, General Comment on Article 12: Equal recognition before the law (Eleventh session; 31 March–11 April 2014; General comment No. 1).

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making’.170 The Committee further asserts that ‘persons with cognitive or psychosocial disabilities have been, and still are, disproportionately affected by substitute decision-making regimes and denial of legal capacity’: …. The Committee reaffirms that a person’s status as a person with a disability or the existence of an impairment (including a physical or sensory impairment) must never be grounds for denying legal capacity or any of the rights provided for in article 12. All practices that in purpose or effect violate article 12 must be abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others.171

It is submitted that there is much to be said for a ‘supported decisionmaking paradigm’ that respects the rights, will, and preferences, of persons with disabilities, including their right to refuse support, rather than the ‘substitute decision-making paradigm’, which is based on their ‘best interests’. In essence, the former approach is the one preferred in the joint response of the CBA/Bar Council to CP 197.172 The right to personal autonomy is not to be lightly displaced even if an independent observer of criminal proceedings might regard a defendant’s decision-making to be unwise. Admittedly, this leaves open the possibility that there may be circumstances in which a restriction may legitimately be placed on the right to personal autonomy. Indeed, there are already circumstances in which (in the interests of justice) an accused may be prevented from acting in person for specified purposes (for example, cross-examination, notably under sections 34–36 of the Youth Justice and Criminal Evidence Act 1999, and section 4A(2)(b), Criminal Procedure (Insanity) Act 1964). 173 There would be obvious policy and practical difficulties about vesting judges with, for example, a discretionary power to appoint a legal representative for a defendant whom the court feels is acting unwisely or irrationally by reason of poor decision-making skills.

170

ibid para 3. ibid para 9. 172 Bar Council, ‘Response to the Law Commission on unfitness to plead’ (accessed 05/11/2014). 173 The issue of personal autonomy in relation to s.4A determinations is considered below (‘”Determination of the facts” procedure, and the defendant’s legal representation’). 171

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The most that a court can do is to give such defendants as much support and advice as it feels that it properly can do.174

Special measures In the majority of cases, the vulnerabilities of a defendant can be accommodated by way of ‘special measures’. Indeed, the view of the Law Commission is compelling that ‘all efforts should be made to ensure that as many defendants as possible are able to participate effectively in a full trial process, with the provision of necessary and appropriate special measures or other adjustments’.175 ‘Special measures’ that may be taken to assist vulnerable defendants and other participants in criminal proceedings, are plainly in accordance with the ‘supported decision making paradigm’ mentioned above. As to the meaning of ‘support’ in the context of article 12 of the UNCRPD, the CRPD states:176 Support in the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities and should never amount to substitute decision-making. Article 12, paragraph 3, does not specify what form the support should take. ‘Support’ is a broad term that encompasses both informal and formal support arrangements, of varying types and intensity.

Burden and standard of proof; a unitary test; and the level of capacity required Section 1 of the Mental Capacity Act 2005 states that ‘a person must be assumed to have capacity unless it is established that he lacks capacity’. There is no sound reason for suggesting that the position should be any different in respect of criminal proceedings. There may be cases where a defendant is fit to enter a plea of guilty (or not guilty), but he would, by reason of a mental or physical disability, struggle to be able to withstand a full trial. Although this may be said to justify taking a disaggregated approach to fitness to plead, to do so is to risk applications being routinely made that a defendant is unfit to plead (perhaps because practitioners fear being exposed to professional criticism for not raising the issue, or by some (hopefully few) manipulative 174

Law Com IP, 2014 (n 2) para 2.86 – 2.88 ibid para 2.79. 176 UNCRPD (n 169) para 17. 175

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defendants who make contrived applications to postpone judgment). Accordingly, there are principled reasons why the issue of unfitness to plead should be a unitary one, although the question of effective participation by a defendant in respect of a particular stage in the criminal justice process, may require reappraisal.177 Given that fitness to plead is to be determined through the ‘prism’ of fairness (encapsulated within the requirement of the defendant’s ‘effective participation’ in criminal proceedings) there is no need for a statutory test to go further in its description of the level of capacity required (for example, that D has ‘sufficient capacity’178).

What should be the statutory legal test for UTP? From the 25 June 2012, section 53F of the Criminal Procedure (Scotland) Act 1995 came into force.179 The section had been inserted by the Criminal Justice and Licensing (Scotland) Act 2010, section 170(1), following the recommendations of the Scottish Law Commission’s Report on Insanity and Diminished Responsibility that was published in 2004.180 It is submitted that a modified version of section 53F of the 1995 Act provides a workable test for determining fitness to plead. 181 The modifications are denoted below by the use of square brackets, underlining and strikethrough. (1) A person is unfit for trial if it is established [to the Court’s satisfaction] on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial. (2) In determining whether a person is unfit for trial the court is to have regard to— (a) the ability of the person to— (i) understand the nature of the charge, (ii) understand the requirement to tender a plea to the charge and the effect of such a plea, (iii) understand the purpose of, and follow the course of, the trial, 177

Consider the circumstances in Bhanji (n 5) Law Com IP, 2014 (n 2) para 2.37 179 The section came into force with effect in relation to criminal proceedings commenced on or after the 25 June 2012: see SSI 2012/160, art 3, of the Schedule. 180 Scottish Law Com Rep 195, 2004 (n 3). 181 ibid paras 4.19, 4.23 and 5.59, and page 82. 178

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(iv) understand the evidence that may be given [for/or] against the person, (v) instruct and otherwise communicate with the person’s legal representative, and (b) any other factor which the court considers relevant. (3) The court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge.182

Section 53F encapsulates the Pritchard183 criteria as updated in John M. The section includes physical as well as mental conditions. Subsection (2)(b) is an important provision for at least two reasons. First, one cannot accurately predict all circumstances that will confront a Court where the issue of unfitness to plead is raised. Secondly, the subsection provides scope for advances in psychiatry and medicine to be accommodated within the legal test.185 It may be said that the substitution of the words ‘to the Court’s satisfaction’ for ‘balance of probabilities’ is to introduce a distinction without a difference. Indeed, without words of clarification either in a statute or in Explanatory Notes, a court may be inclined to say as much. There is at least a difference in emphasis, and that rather than setting a rigid standard, a judge should enjoy a margin of appreciation with regards to his or her ‘feel’ of the case. The current preference of many academics and practitioners is for a standard to be spelt out in legislation, the expression ‘to the Court’s satisfaction’ is not unseen in legislation.186 184

Procedure for the unfit accused The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 inserted section 4A into the 1964 Act,187 which provides for a mandatory 182

Consider Podola (n 75) Pritchard (n 45) 184 John M (n 28) 185 Scottish Law Com Rep 195, 2004 (n 3) 83. 186 See for example, s.116(1)(b), Criminal Justice Act 2003; s.25(2), Cluster Munitions (Prohibitions) Act 2010; s.67-69, Animal Health Act 1981; s.30, Chemical Weapons Act 1996. 187 Section 4A(1) and (2) provides [as amended]: ‘(1) This section applies where in accordance with section 4(5) above it is determined by a [court] that the accused is under a disability. (2) The trial shall not proceed or further proceed but it shall be determined by a jury-(a) on the evidence (if any) already given in the trial; and (b) 183

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hearing of the facts of the case once an accused has been found to be unfit to plead.188 The question (currently to be answered by a jury)189 is whether the tribunal of fact is satisfied that in respect of each count on the indictment, the defendant ‘did the act or made the omission charged against him as the offence’. 190 It follows that the enquiry is limited to whether the defendant performed the conduct element (or omission) of the actus reus of the offence in the circumstances and/or with the consequences necessary for the commission of the offence, as distinct from the fault element of the offence charged.191

What constitutes an ‘act’ or ‘omission made’: is fault irrelevant? At paragraph 5.1 of the Issues Paper, the Commission comment on the effect of Antoine192 as follows: Antoine confirmed that partial defences to murder, namely diminished responsibility and provocation (now loss of self-control, but we assume that the position is unchanged), cannot be put forward on behalf of the defendant. However, where there is objective evidence, for example from an independent witness, raising the question of the act having been the result of mistake, accident or self-defence, these issues can be considered by the jury.

on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.’ 188 See Law Com CP No 197, 2010 (n 2) para 2.22. See Tim Exworthy (n 134) 189 Section s.4A(2), CP(I)A 1964. In its Issue Paper, ibid (n 2), the Law Commission asked consultees whether the determination of the facts should be by judge alone. It is submitted that although there is no reason to doubt the ability of skilled judges to reach correct findings of fact, such a change in procedure would obviously be a further erosion of the function of juries as finders of fact in criminal proceedings. It is speculative whether such a change would result in more requests by defendants for their cases to be remitted for trial upon their recovery (where they have been found to have done the act, etc.; and if this power becomes available) in the hope that a jury might reach a different conclusion. 190 Section 4A(2); CP(I)A 1964 191 [2001] 1 AC 340. see Antoine (n 97). 192 Law Com IP, 2014, para 5.1. See also Antoine, ibid

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In Antoine, their Lordships recognised that defences such as accident, mistake, or self-defence, ‘almost invariably involve some consideration of the mental state of the defendant’.193 Similar issues may arise where the defendant’s act was involuntary (for example, an uncontrollable fit brought about by a medical condition). The resolution of the problem, said their Lordships, was for a jury not to find that the defendant did the act unless they were sure on all the evidence that the act was not one of accident, mistake, self-defence, or involuntary (as the case may be). Crucially, any of these defences must be raised by ‘objective evidence’. However, ‘what the defence cannot do, in the absence of a witness whose evidence raises the defence, is to suggest to the jury that the defendant may have acted under a mistake, accident, or self-defence, and to submit that the jury should acquit unless the prosecution satisfies them that there is no reasonable possibility that the suggestion is correct’. 194 Contrary to the impression that may be gained from para.5.1 (above), their Lordships, in Antoine, expressly reserved their opinion on the question of whether, on a determination under section 4A(2), it would be open to the defence to call witnesses to raise the issue of provocation (presumably (now) loss of self-control). 195 If one regards some instances of provocation/loss of self-control as being akin to a reaction short of automatism then (arguably) there is a distinction between that aspect of the accused’s conduct and diminished responsibility196 (mens rea). The number of elements of an offence that a jury is entitled to consider when deciding whether the defendant ‘did the act or made the omission’, depends on the offence under consideration. Thus, for example, where the offence charged is section 47(1) of the Financial Services Act 1986,197 it

193

Antoine, ibid 376G (per Lord Hutton) ibid, 377C (per Lord Hutton) [author's emphasis added] 195 This differs from para 5.1 of the Law Com IP, 2014 (n 2), which states that 'Antoine confirmed that….provocation (now loss of self-control, but we assume that the position is unchanged), cannot be put forward on behalf of the defendant'. 196 Section 2 of the Homicide Act 1957 (as amended by section 52 of the Coroners and Justice Act 2009). 197 This provides: ‘(1) Any person who-(a) makes a statement, promise or forecast which he knows to be misleading, false or deceptive or dishonestly conceals any material fact…is guilty of an offence if he…conceals the facts for the purpose of inducing, or is reckless as to whether it may induce, another person…to enter or offer to enter into…an investment agreement’. 194

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was held in R v MB,198 that the effect of previous judicial decisions 199 is to require and to distinguish between four elements for the purpose of that offence: (i) Purely physical acts involved: ‘those must include omissions, because the ‘purely physical acts’ must refer to what facts the defendant did state to the potential investor and what facts he omitted to state’; (ii) Present intentions of the defendant at the time he stated some facts, and omitted others. ‘Those "present intentions" are facts….’; (iii) The defendant’s concealment of the aforementioned intentions: ‘….the defendant’s concealment of those intentions is to be regarded, for the purposes of section 4A(2) of the 1964 Act as part of the ‘act’ done or the ‘omission’ made that was charged against him’; (iv) Whether the concealment was done dishonestly and the defendant’s purpose in concealing his present intentions. ‘They are not part of the ‘acts’ or ‘omissions’ for the purpose of section 4A(2). They are part of the mental element of the offence charged.’200 In CP 197, the Law Commission remarked that it is not always possible to divide the conduct element from the fault element of a criminal offence, and that ‘[t]here are problems when the lawfulness or the unlawfulness of the accused’s act depends on his or her state of mind’.201 The difficulty about that observation (it is submitted) is that a section 4A enquiry is not conducted with a view to establishing whether the defendant’s conduct was lawful or not (or even whether it constituted an offence). On the other hand, the drawback of this approach (as the Commission points out) is that ‘the result in any given case could, to some extent, be arbitrary as it will depend on the nature of the charge. This can lead to a lack of consistency in different cases’.202 This is theoretically true but speculative. An arguably stronger point made by the Commission is that ‘defences’ are often ‘inextricably linked with the elements of the offence which are in issue’.203 198

R v MB (n 98) Including R(Young) v Central Criminal Court [2002] 2 Cr App R 12; [2002] EWCA Crim 548 200 MB (n 98) [56] 201 Law Com CP No 197, 2010 (n 2) para 6.7. 202 ibid para 6.26 203 ibid para 6.30: ‘The unfairness to which we have referred in paragraph 6.27 above is also apparent in the context of defences, many of which are inextricably linked with the elements of the offence which are in issue. Self-defence is an 199

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If unfitness to plead may be raised in proceedings ancillary to conviction (for example, confiscation proceedings) rules may need to be devised relating to their disposal, as well as determining what the procedure should be in cases where mens rea is a material issue in those proceedings. Take, for example, confiscation proceedings where D was fit to plead at the time of conviction but is judged not to be fit in confiscation proceedings. Are such proceedings to be simply postponed until such time as D recovers, or are they to be stayed, or concluded? Should different rules apply depending on whether it is alleged, (a) that D’s benefit is limited to the offences in respect of which he or she was convicted (i.e., ‘particular criminal conduct’), or (b) that D enjoyed a ‘criminal lifestyle’? In the latter situation,204 where it is shown that he has benefited from his ‘general criminal conduct’,205 the Proceeds of Crime Act 2002 (‘POCA’) requires that all of his ‘criminal conduct’206 is considered when assessing the value of his proceeds from crime, including criminal conduct that is proved during the course of confiscation proceedings (or assumed under section 10 POCA) notwithstanding that the conduct is not reflected by charges proved to conviction in the ordinary way. The question of whether the defendant acted criminally with requisite fault (mens rea), will often be a live issue in confiscation proceedings, but, there may be cases where the defendant, by reason of his or her medical or physical condition, is unfit to deal with it. The solution may be fact-specific.207

Reforming the procedure for determining the facts Given the criticisms that have been made of the section 4A procedure, the Commission proposed under Option 5 in CP 197 a procedure by which ‘in so far as is possible, all the elements of the offence are considered’:208

obvious example of where it is difficult to disengage the conduct element from the fault element. A defendant is legally entitled to use force to defend him or herself if he or she genuinely, even if mistakenly, believes him or herself to be under attack, as long as the force used is reasonable in the circumstances. If he or she does so this negates the fault element for the offence in question.’ 204 Section 75, Proceeds of Crime Act 2002. 205 Section 76(2), POCA 2002. 206 Section 76(1), POCA 2002. 207 Consider Bhanji (n 5) and R v Ali (n 18). 208 Law Com CP No 197, 2010 (n 2) para 6.129, option 5 [author's emphasis added].

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The prosecution would have the burden of proof in relation to this. In determining whether all elements of the offence are proved, it should be possible to consider defences in so far as this is consistent with the fact that decisions about the section 4A hearing are made by the accused’s appointed legal representative. In other words, as long as there is a sufficient evidential basis to raise the defence or partial defence then the representative of the accused can do so if he or she thinks that it is in the accused’s best interests. If the accused is acquitted (because, for example, there is no evidence of fault) then there may (but would not necessarily be) a further hearing to consider whether or not the acquittal is because of mental disorder existing at the time of the offence.

The verdicts open to a jury would be: 1) a finding that the accused has done the act or made the omission, and that there are no grounds for acquittal;209 (2) an outright acquittal; or (3) an acquittal which is qualified by reason of mental disorder (a ‘special verdict’).

As the CBA/Bar Council Joint Response pointed out,210 although (at first sight) Option 5 had much to commend it, a hearing along the lines proposed (at that time) by the Commission would be barely distinguishable from a traditional jury trial. On the one hand, the defendant would be advantaged to the extent that the burden of proof would be on the prosecution throughout (and presumably in all cases),211 and his/her legal representative would be free to put forward answers and defences in the accused’s ‘best interests’ (an aspect which requires further comment: see below). The accused might also receive ‘special measures’. But, on the other hand, even if the defendant were to be acquitted, he might find (if Option 5 represents the law) that a further hearing takes place (i.e., a consideration of a ‘special verdict’) such that the acquittal becomes ‘qualified’ on the grounds that the defendant had a mental disorder at the time of the offence,212 and he is then made the subject of an order under section 5 of the 1964 Act: 209

Without clear directions from the judge as to the relevance of the words ‘that there are no grounds for acquittal’, a jury might wonder how they can reach that conclusion given the defendant’s disabilities and the limitations of the enquiry. 210 CBA/Bar Council Joint Response (n 172) para 111 211 What would be the position in relation to strict liability offences? 212 Law Com CP No 197, 2010 (n 2) para 6.140.

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Chapter One In short, he may find that his acquittal is a ‘Pyrrhic Victory’ and that he is in a worse position than if he had held out for a traditional trial or declined to assert that he lacked decision-making capacity.213

In its Issues Paper, the Commission explained that its thinking behind the proposal that a ‘special verdict’ would be considered at a subsequent hearing was that this ‘would provide a clearer and simpler route for the jury in their initial verdicts, and that this would avoid any prejudice which might arise from the jury hearing medical evidence relevant to the special verdict in the substantive fact finding hearing’.214 The tone and structure of the Issues Paper suggests that the Commission was minded to recommend (and to include within a draft Bill) the enactment of Option 5 (above),215 subject to the modification that a ‘special verdict’ would be available to the Court on its initial consideration of the facts (i.e. without the need for a further hearing),216 and (perhaps) that there should be power to delay a determination of the facts (following a finding that the defendant lacks capacity) for a maximum period of six (lunar) months, 217 with the option that some defendants (in appropriate cases) could be diverted out of the criminal justice system as an alternative to a ‘special verdict’.218 The Commission’s options for reform need to be evaluated with regards to, (a) possible disposals that are open to a Court upon a finding that the defendant did the act or made the omission,219 and (b) the issue of remissions for trial.220 The Commission suggest that the consideration of remission cannot sensibly be approached before clarity is achieved on the status of a finding of unfitness and any subsequent disposal.221 There cannot be clarity with respect of the latter issues without reaching conclusions as to remissions for trial, especially if one takes the view that a finding of unfitness,

213

CBA/Bar Council Joint Response, (n 172) para 111. Law Com IP, 2014 (n 2) para 5.11 215 See Law Com CP No 197, 2010 (n 2) para 5.21. 216 Law Com IP, 2014 (n 2) para 5.51. 217 ibid para 5.24-25. 218 ibid para 5.34-44. 219 ibid Part 6 220 ibid Part 7 221 ibid para 7.25 214

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coupled with any subsequent determination of the facts, is a ‘holding position’ (as discussed above).222

Remitting for trial: requests by the Crown On the basis that a finding of unfitness to plead is a ‘holding position’ then it would be logical to extend the power to remit for trial, (a) at the request of the defendant,223 or (b) at the request of the Crown (subject to satisfying an interest of justice requirement). 224 A defendant (having recovered) may provide new information/evidence relating to the alleged offence. He may provide new instructions to his legal advisers. He may advance defences and explanations not raised in earlier proceedings (for example, alibi, self-defence, diminished responsibility). He may suggest that he now recalls the identity of witnesses not called in earlier proceedings. If the unfitness procedure is a ‘holding position’, the defendant cannot logically complain of ‘double jeopardy’ in the event that the Crown requests remission for trial. The more elements of an offence that a court must consider on a section 4A-type determination of the facts, the more a defendant might reasonably feel that remission for trial is to put him or her ‘on trial’ for a second time. There is perhaps little that can be done to assuage a defendant in this regard beyond the protection of an ‘interests of justice’ requirement that would doubtless involve the court considering whether, in all the circumstances of the case, remission for trial is in the public interest or not. There is no need for statutory time limits if there is an ‘interest of justice’ requirement. This is because the lapse of time between the disposal following a finding of unfitness, and the request to remit for trial, would be a factor that the court should take into account when considering whether to grant leave to remit or not. It is submitted that a defendant’s recovery from his condition need not be complete but the evidence must show, on a balance of probabilities that the defendant has recovered at least to the point that he or she is fit to stand trial. The burden of proving fitness (on a balance of probabilities) should be, in this instance, on the Crown. In order to protect the vulnerable defendant, there should be a statutory requirement that there must be evidence from at least two medical experts, competent to speak to the 222

ibid para 7.28. ibid paras 7.39-42. 224 ibid paras 7.28-38. 223

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defendant’s condition that he or she has recovered sufficiently (the final decision being a matter for the court). If one accepts that the unfitness procedure is a ‘holding position’, it might seem logical to conclude that the power to remit for trial should be available in every case – subject to an ‘interests of justice’ requirement. But, granting such a general power to remit a defendant for trial would introduce into the process a degree of uncertainty for defendants, witnesses, and victims, in terms of when they can expect ‘closure’ in relation to the offence charged. In practice, requests made by the Crown to remit for trial are likely to concern the alleged commission of a serious offence by the defendant. Accordingly, in order to introduce a degree of predictability into the process, a case can be made for restricting requests to remit either (a) to offences specified by statute (for example, specified ‘serious offences’, subject to modification by Statutory Instrument),225 or (b) by way of guidelines in which criteria for remission for trial at the Crown’s request are spelt out. The former is to be preferred as it provides a degree of independent oversight and control. A more difficult issue is whether there should be power to remit following an acquittal, or whether (if a finding of unfitness is a ‘holding position’) the verdict is not more accurately one of ‘not proved that the defendant did the act or made the omission’. There is an understandable reluctance to treat an acquittal as anything other than final on the grounds that not to do so would be unfair, not least because the defendant is exposed to the risk of ‘double jeopardy’. There is also an obvious attraction in securing a defendant’s outright acquittal as soon as it become evident that he she is not criminally liable (for example, DNA evidence that exonerates the accused). In the majority of cases, disputed issues will not be resolved without undertaking an examination of them, and any examination will be incomplete without the participation of the defendant. But, if a defendant is unfit to plead the notion of ‘acquittal’, as that term is generally understood in relation to trials conducted in the ordinary way, is not wholly apt in the context of section 4A proceedings where the defendant’s participation is limited or minimal by reason of his or her disability – especially if one takes the view that the procedure is a ‘holding position’.

225

For example, modelled on s.75 and sched.5 of the Criminal Justice Act 2003, Part 10, ‘Qualifying Offences For Purposes of Part 10’.

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The problem is illustrated by observations made by Lord Hutton in Antoine. 226 Currently, section 4A(4), of the 1964 Act, requires a jury, which concludes that they are not satisfied that the defendant did the act, to ‘return a verdict of acquittal as if… the trial proceeded to a conclusion’.227 In Antoine228, it was pointed out that if all elements of an offence need to be considered on a section 4A determination, including fault, then in the event that a defendant successfully pleaded diminished responsibility to a charge of murder, section 4A(4) would require an acquittal for murder. If, upon a finding that the defendant had done the act for manslaughter, he was detained in hospital, and the Secretary of State remitted him for trial, he could not be tried for murder by reason of his acquittal. Accordingly, the Law Commission’s proposals for a ‘special verdict’ were intended to address that problem.229 But, once it is open to the finders of fact, on a section 4A-type hearing, to have regard to all the elements of the offence charged, it follows that there may various bases on which an acquittal could be returned. In Norman, 230 the appellant was charged with the offence of child abduction contrary to section 2(1)(b) of the Child Abduction Act 1984. A verdict, returned under the section 4A procedure, that N had committed the act with which he was charged, had to be quashed. As the rules then existed, a verdict of ‘not guilty’ had to be substituted but a re-trial was not possible under the terms of section 16(4) of the Criminal Appeal Act 1968 (‘CAA 1968’), which provided that the court was required (in addition to quashing the finding that the defendant did the act) to direct a verdict of acquittal be recorded. In a postscript to that decision, the Court remarked: …..Although in this case the public interest is protected, there could well be cases where it would not be and serious public concern could arise where this court considered a verdict unsafe and was compelled to enter an acquittal, but nothing further could be done. We would hope that Parliament might give consideration to this lacuna in the statutory provisions and consider granting this court power to order a re-trial of the issue as to whether the defendant did the act with which he is charged.231

226

Antoine (n 97) 367-368. Criminal Procedure (Insanity) Act 1964, section 4A(4) [emphasis added] 228 Antoine (n 97) 229 Law Com CP No 197, 2010 (n 2) para 6.135. 230 [2008] EWCA Crim 1810. 231 ibid [34(iv)] (Thomas LJ) 227

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In contrast to the outcome in Norman 232 (where N’s condition was profound), there was less concern in Berry, 233 where a defence appeal against a verdict of unfitness to plead was allowed and the finding quashed. It seems that B’s condition may have been transient, and therefore the Court of Appeal viewed the appeal as likely to have been ‘academic’ because, if B recovered from his condition, it was open to the Crown to reinstitute proceedings. The point of principle, in Norman234, was not simply one of procedure for the sake of it: the Court was clearly concerned (as was the House of Lords in R v N235) that the public should be protected against risks posed by a person who, by reason of being unfit to plead, cannot be tried in the usual way. But, the risks may be the same in cases where: (a) the defendant was insane or unfit at the time that he did the act; or (b) he has become so at the date of trial; or (c) the issue of his mental or physical condition (for example, insanity) is raised as a defence for the first time (successfully) upon the defendant’s remission for trial. If it is accepted that the unfitness to plead procedure is a ‘holding position’, then determinations of fact are not ‘final’ but they can be revised in the event that the defendant is remitted for trial (for whatever reason). Thus, the argument might run that rather than introducing rules that treat acquittals ‘as if…the trial proceeded to a conclusion’ (which is a fiction), and rather than enacting rules similar to those enacted in Part 10 of the Criminal Justice Act 2003 (‘CJA 2003’) to set aside an acquittal,236 the alternative is to introduce a verdict short of an acquittal. On that basis, the verdicts open to a jury would be: (1) That the accused did the act, etc. (2) That it is not proved that the defendant did the act, etc.; (3) That it is not proved that the defendant did the act, etc., but the finding is qualified by reason of mental disorder i.e. a special verdict.

There may be cases where the evidence points to the conclusion that the defendant is entitled to be acquitted. The above three verdicts would not cater for those situations and it would be unfair for the defendant not to be acquitted until such time as he recovered sufficiently for the case to be 232

ibid Berry (n 103). 234 Norman (n 230) 235 [2003] 1 WLR 411; [2003] UKHL 1. 236 See ‘Retrials for Serious Offences’ 233

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remitted for trial. Accordingly, the jury/court might be left to consider a fourth verdict, namely, an outright acquittal. The aforementioned alternatives are not attractive (not least because they add complexities to a process that should be kept as straightforward as possible), but they may be said to flow from the problems identified above. The unusual difficulty that arose in Norman237 could be addressed by amending the CAA 1968. Similarly, there might be a reasonable expectation that acquittals that are both erroneous and profoundly contrary to public interest (following a determination of facts under a revised section 4A-type procedure) would also be relatively rare. In the event that experience shows this not to be the case, it would be open to the Legislature to consider the introduction of rules similar to those enacted in Part 10 of the CJA 2003. Thus, although an acquittal (which the Commission proposes should be open to the court) is somewhat ‘out of kilter’ with the notion that the unfitness procedure is a ‘holding position’, it is justifiable in the interests of fairness to the defendant, and it avoids some of the complexities that might be encountered by including a verdict of (in effect) ‘not proven’.

Remitting for trial: requests by the defendant There may be circumstances in which a defendant would wish to remit his case for trial (perhaps in order to clear his name). In the event that a section 4A-type determination of the facts will be heard by judge alone,238 one cannot rule out the possibility that a defendant might take the view that the outcome would have been different had the hearing been conducted before a jury. Irrespective of the defendant’s motive for making the request, it is submitted that – consistent with the ‘supported decisionmaking paradigm’ discussed above – it should be open to a defendant to make such a request in all cases tried on indictment239 subject, (a) to a requirement for leave of the Crown Court to remit, and (b) that there is evidence from two experts, competent to speak to the defendant’s condition, that he or she has recovered sufficiently to be fit to be tried. Those conditions would go some way to ensure that trials are not remitted 237

Norman (n 230) See Law Com IP, 2014 (n 2) para 5.60. 239 This paper is confined to trials on indictment and therefore no views are expressed herein in relation to whether and to what extent there should be a power to remit for trial in respect of offences tried summarily. 238

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on an irrational basis. There is also the expectation (reasonably held by the Commission) 240 that few defendants are likely to risk conviction by making a request to remit for trial.

‘Determination of the facts’ procedure, and the defendant’s legal representation By virtue of section 4A(2)(b) of the CP(I)A 1964, the question of whether the defendant did the act or made the omission is to be determined on the evidence (if any) already given in the trial, and on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court to put the case for the defence. In Norman,241 the Court of Appeal (Criminal Division) remarked by way of a postscript (and reiterated in R v MB242) that the Crown Court judge would need ‘carefully to consider who is the best person to be appointed by the court to put the case for the defence’,243 adding that the duty under section 4A(2) ‘is a duty personal to the court which must consider afresh the person who is to be appointed’: ….it should not necessarily be the same person who has represented the defendant to date, as it is the responsibility of the court to be satisfied that the person appointed is the right person for this difficult task….. The responsibility placed on the person so appointed is quite different to the responsibility placed on an advocate where he or she can take instructions from a client. The special position of the person so appointed is underlined by the fact that the person is remunerated not through the Criminal Defence Service, but out of central funds…244

What then, are the duties of the legal representative appointed pursuant to s.4A(2)(b) CP(I)A (if that power is to be retained)? More specifically, if the defendant’s representative has formed a judgment as to what is in the defendant’s “best interests”, is it open to the representative to override the latter’s expressed will and preferences? The provisional answer given by the Commission is in the affirmative, for the following reasons:245 240

Law Com IP, 2014 (n 2) para 7.40. Norman (n 230). 242 MB (n 98). 243 Norman (n 230) [34(iii)] (Thomas LJ) 244 ibid [192] 245 Law Com IP, 2014 (n 2) paras 5.61-5.64, especially 5.62. 241

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…. [We] consider that, although that representative should respect the “rights, will and preferences” of the defendant where those are identifiable, the representative should continue to be entitled to override the defendant’s expressed will and preferences where the representative identifies that to give effect to them would be contrary to the best interests of the defendant. We take the view that this exceptional approach is justifiable on the basis that in respect of a defendant who lacks capacity, and who has therefore been removed from the optimal full trial procedure with its fair trial guarantees, it is legitimate for the state to require that person’s best interests to be properly represented. This is necessary both to protect his or her position but also to protect the legitimate interests of witnesses and the wider public in the fair and effective administration of justice.

In making the above statement, the Commission was mindful of the terms of the UNCRPD, and yet the reasoning appears to support ‘substituted decision-making’ not only in terms of what is thought ‘best’ for the defendant but also (it would seem) for witnesses ‘and the wider public’. The Commission sheds little light on what are the ‘legitimate interests’ of witnesses and the wider public, or what quality those interests possess that make them ‘legitimate’. Furthermore, the Commission appears to imply that what is best for a defendant is likely to be best for the wider public, or contrariwise, that what is best for society may justify a decision that was taken on the defendant’s behalf, albeit against the latter’s wishes. In fact, the two sets of interests are often in tension. A defendant may perceive that his or her ‘best interest’ is to be acquitted, but the interests of ‘the wider public’ may be best served by the defendant receiving treatment for his or her condition. Accordingly, to impose a ‘requirement’ of the kind proposed by the Commission on a defendant’s representative is to ask the latter to perform a dual role involving competing interests. Indeed, if the Commission’s reasoning is to be followed, then the issue of ‘best interests’ arguably arises from the moment that fitness to plead enters the representative’s mind as a proper plea (for example, before arraignment). It seems that there was a time when it was thought permissible for the representative not to pursue a plea of unfitness in favour of seeking an acquittal. The point is illustrated by the case of Roberts, where Devlin J said:246

246

[1954] 2 QB 329, 332; and see the commentary to this case (author unknown) ‘Question Whether Accused Is Fit to Plead: Not Always Triable as a Separate Issue’, (1953) 17 Journal Criminal Law 318, 1953.

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Chapter One ....it is a perfectly conceivable situation.…that counsel for the defence, although he cannot be instructed by the accused, may say: “I do not think that the prosecution can bring any case against this accused man at all. If they can, then of course I am in no position to defend it with his aid because he cannot instruct me and cannot tell his story. But as the prosecution can make out no case, I am not prepared to let the matter go merely on the issue whether he is fit or unfit to plead.247

Devlin J indicated the steps that counsel on behalf of the accused might wish to take: In cases where the defence does not propose to challenge that the prosecution has a prima facie case, and has no evidence which might induce a jury to reject the evidence for the prosecution, then the convenient course is to let the issue of fitness to plead be tried at once. I can find no authority in these cases which would prevent counsel for the defence, who wishes to test the prosecution’s case on the general issue, from having the right to do so and at the same time preserving all those rights which flow to the defence from the fact that the accused is a person, if it be so established, who is incapable of being communicated with or instructing counsel for his own defence. Were it otherwise, I think that the gravest mischief and injustice might follow. As I said earlier in the argument, the defence might wish to tender a witness who could prove that the accused was ten miles away at the time of the alleged crime. It cannot, I think, be our law that, by some formality of procedure, the defence should be prevented from laying matters of that sort before the jury, and so achieving, if they can, for their client a verdict of not guilty.248

A different view was taken in R v Beynon249 (albeit in the context of insanity) where it was said: It appears to me that the law has always been that an insane person cannot be tried, and although it is with the most profound regret that I find myself in disagreement with Devlin J., nevertheless I cannot avoid it, and the conclusion I have arrived at is that, upon my attention being drawn to the fact that there is a preliminary issue, that issue is one which the court is obliged to try. That is based upon the fact, not only that there is provision for such procedure by the Criminal Lunatics Act, 1800, but that there is authority for that procedure going back as far as Hale. 250 247

ibid [emphasis added] 249 [1957] 2 WLR. 956; [1957] 2 QB 111 250 [emphasis added] 248

Reforming Unfitness to Plead for Adults in the Crown Court

49

In Roberts251 and in Beynon252, the issue of fitness to plead had been raised with the Court. But would a ‘best interests’ requirement (as the Commission appears to be defining it at IP 5.62) mean that there is a duty on a legal representative to raise that issue with the Court? The point is not answered by section 4(1) of the 1964 Act, which merely provides that the question of unfitness arises ‘at the instance of the defence or otherwise’ which has been held to mean that the issue arises only when the prosecution or defence inform the judge that there is a preliminary issue as to whether the defendant is fit to plead, or, in the case of the judge, when he in fact raises it: McCarthy.253 This is very different from a requirement that a legal adviser is required to raise the issue as being in the defendant’s ‘best interests’. Arguably, one should not construe the Commission’s wording at IP 5.62 too tightly. It is sufficient for it to be understood that, in section 4Atype proceedings, a legal representative is not to be lightly criticised for taking decisions on a defendant’s behalf which, while typically respecting the ‘supported decision-making paradigm’, may exceptionally (in the exercise of competent judgment) be contrary to the will of a defendant in order to avert injustice to him or her. A practitioner, by definition, is engaged in a discipline that results in the attainment of skills and judgment that will often be lacking on the part of the person for whom the practitioner acts. But, unlike in medicine where there are often defined and well-established correct procedures for carrying out, for example, surgery, the course of a trial is rarely routine or even predictable. There are professional standards which lawyers must observe (for example, not to gratuitously besmirch the character of a witness), as well as statutory rules that, for example, prohibit a defendant, acting in person, from crossexamining a witness in specified circumstances. A legal representative is not incompetent merely because he or she advances the client’s version of events that may not only be implausible, but absurd. Equally, a legal representative is unlikely to be held to have acted unprofessionally by taking a decision which was well-reasoned, notwithstanding that the client preferred a different decision to have been made. In each case, the matter is one of judgment exercised by the practitioner ‘in the field’, and there is no guarantee that two competent legal representatives – both acting correctly – would have made the same decision. Accordingly, ‘the State’ 251

Roberts (n 246) Beynon (n 249) 253 McCarthy (n 11) 252

50

Chapter One

needs to be careful not to mandate the terms on which it regards a defendant as being ‘properly represented’.

Conclusion The Law Commission, both in CP 197 and in the Issues Paper, has raised many more points than are (or could be) considered here. In any event, commentators other than this author are better placed to address issues pertaining to young persons and Youth Courts254, as well as case disposals where there has been a finding that the defendant did the act or made the omission in respect of the offence charged. But, four further points should be made. First, rules relating to unfitness to plead should not be considered by practitioners without regard to related areas of law, notably, ‘insanity’ and rules pertaining more widely to vulnerable persons who are engaged with criminal proceedings. In this regard, the Law Commission has undertaken extensive work in these areas.255 Secondly, although there has been a marked increase in recent years in the number of cases where the issue of unfitness is raised, it has not yet reached the stage of being routinely raised: but, on one analysis of the proposals in CP 197, there was the potential for this to occur, particularly in the light of paras.3.80/81 of CP 197 which contemplated a ‘revised unitary test which assesses all aspects of litigation capacity” such that “the requirements of the trial would be broken down fully…’ As the Commission then recognised, the proposed decision-making capacity test ‘would therefore inevitably bear some of the characteristics of a more disaggregated approach’. The tone of the Commission’s Issues Paper is very different, with the expectation (implicit at least) that a revised procedure for determining unfitness to plead would be initiated prudently, but not unduly sparingly. Thirdly, the ‘culture shift’ may be as important as changes in legal rules. In this instance, the shift is for practitioners to be alert to the significance of any mental or physical condition of vulnerable defendants, victims, and witnesses, insofar as it has a bearing on the conduct of criminal proceedings, and to take such action as is appropriate to address it.

254 255

See, for example, Arthur herein at chapter 15. Law Com SP, 2012 (n 2); Law Com DP, 2013 (n 2).

Reforming Unfitness to Plead for Adults in the Crown Court

51

Finally, irrespective of the recommendations ultimately made by the Law Commission in its final report and draft Bill on ‘Unfitness to Plead’, the Commission is to be commended for its industry and painstaking research, extensive consultation, and analysis, in respect of this complex and evolving field.

CHAPTER TWO UNFITNESS TO PLEAD IN OPERATION RONNIE MACKAY1

Little is known about how unfitness to plead, also referred to as disability in relation to the trial, operates in practice. 2 This paper will attempt to redress this gap in knowledge by exploring the data I have been able to acquire on findings of unfitness to plead over several decades. In doing so I will briefly assess the value of such empirical studies and what they may bring to the reform agenda.

My Older Empirical Studies Although much has been written about the insanity defence and the M’Naghten Rules 3 by way of comparison unfitness to plead has been somewhat neglected. Indeed prior to 1991 little was known about the operation of unfitness to plead other than that the number of those found ‘under disability in relation to the trial’ was small. This was confirmed in my first empirical study published in 19914 and updated in 19955 which revealed that unfitness to plead was rarely used. In light of the mandatory disposal of indeterminate hospitalisation under the Criminal Procedure (Insanity) Act 1964, this was hardly surprising.6 Despite this the study also 1

Professor of Criminal Policy and Mental Health, Leicester De Montfort Law School, De Montfort University. 2 This is a complementary piece to R.D. Mackay ‘The Insanity Defence in Operation’ (2014) 65 (2) Northern Ireland Legal Quarterly 153-166. 3 For discussion see Ronnie Mackay, Mental Condition Defences in the Criminal Law (Oxford University Press 1995) chapter 2. 4 Ronnie Mackay ‘The Decline of Disability in Relation to the Trial’ [1991] Criminal Law Review 87. 5 See Mackay (n 3) 221-233. 6 ibid 232. .

Unfitness to Plead in Operation

53

revealed that there had actually been a marked decline in the number of findings of unfitness to plead during the 11-year research period from a maximum of 39 in 1980 to a minimum of 11 in 1989. In addition unfitness findings were recorded in a wide variety of offences, some of which were far from serious, and the most common diagnosis used to support such findings was schizophrenia. Finally, the majority of those found unfit to plead were sent to local hospitals. Taken together these results were viewed as supporting the need for reform of the Criminal Procedure (Insanity) Act 1964 (hereinafter, 'the 1964 Act') which as it then stood denied the unfit defendant any ‘trial of the facts’ as well as failing to give the judge any flexibility of disposal. What followed was a policy paper from the then-C3 Division of the Home office favouring the introduction of flexibility of disposal for both unfitness to plead and the defence of insanity. This resulted in a Private Members Bill which in turn resulted in the enactment of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. The 1991 Act signalled the end of mandatory hospitalisation except where the charge was one of murder. It did so by introducing four additional disposals for both unfitness to plead and insanity, namely admission to hospital without restrictions, a guardianship order, a supervision and treatment order and an absolute discharge. By giving judges this new range of disposals it seemed likely that the use of unfitness to plead would increase. My second empirical study was designed to explore the first five years’ operation of the 1991 Act from 1992 to 1996. 7 In doing so it found that the 1991 Act had resulted in some increase in the use of unfitness to plead which continued to be used in a wide range of offences. The most common diagnosis used to support unfitness continued to be schizophrenia. Although the vast majority of those found unfit were sent to hospital (77.4 per cent), many were imposed without restrictions (38.9 per cent) with the result that restriction orders accounted for less than half (45.4 per cent) of the total number of disposals. This showed that judges were making full use of their new flexible disposal powers contained in the 1991 Act. These findings were mirrored in my third empirical study which explored the second five-year period of the operation of the 1991 Act from 1997 to 2001, and concluded:

7

Ronnie Mackay and Gerry Kearns ‘An Upturn in Unfitness to Plead - More Disability in Relation to the Trial under the 1991 Act’ [2000] Criminal Law Review 532.

54

Chapter Two The number of findings of UTP has continued to rise. The increase from 35 findings in 1997 to a peak in 1999 of 80 findings suggests that the legislative changes contained in the 1991 Act are having an ongoing effect. Although, unlike insanity, hospital based disposals still predominate in UTP (62.9 per cent, n= 207), with 38.9 per cent (n=128) being imposed with restrictions, these percentages have fallen from 77.4 per cent and 45.5 per cent respectively with an increase in the use of Supervision and Treatment Orders from 13.6 per cent to 17.9 per cent. This shows that, as with insanity, the judiciary is continuing to make full use of the flexible disposal powers contained in the 1991 Act. Although it remains to be seen what the impact of the new disposal regime under the Domestic Violence, Crime and Victims Act 2004 will have, the fact that admission to hospital with restrictions in murder charges is no longer mandatory but rather can only be made if the court has the power to make a hospital order under the Mental Health Act 19838 removes a further disincentive to use both UTP and the insanity defence.9

My most recent empirical study was commissioned by the Law Commission as part of its ongoing work in relation to the reform of unfitness to plead. This study was published on 27 October 2010 in the Commission’s Consultation Paper on Unfitness to Plead. 10 Before I discuss this study I will make a few remarks about the Consultation Paper (CP)11 and the Commission’s subsequent work on the topic. The CP made it clear that in the view of the Commission the current state of the law on unfitness to plead was unsatisfactory and in need of reform. In doing so the CP made a series of provisional proposals together with twelve questions. 12 In particular, the CP suggested replacing the Pritchard test with a new legal test modelled on the Mental Capacity Act 2005 which would assess the accused’s decision-making capacity for trial. It also recommended replacing the current ‘trial of the facts’ hearing with a procedure which would oblige the prosecution to prove that ‘the accused 8

See s 24 Domestic Violence, Crime and Victims Act 2004 substituting s 5 of the Criminal Procedure (Insanity) Act 1964. 9 Ronnie Mackay, Barry Mitchell and Leonie Howe ‘A continued upturn in unfitness to plead - More disability in relation to the trial under the 1991 Act’ [2007] Criminal Law Review 530, 544. It should also be noted that learning disability had become an equally prominent diagnosis alongside schizophrenia. 10 Law Commission Unfitness to Plead – A Consultation Paper, (CP No 197, 2010). 11 For a critique see Ronnie Mackay ‘Unfitness to Plead – Some Observations on the Law Commission’s Consultation Paper’ [2011] Criminal Law Review 433. 12 Law Com CP No 197, 2010, Part 9, 180-183.

Unfitness to Plead in Operation

55

did the act and that there are no grounds for an acquittal’,13 thus making the hearing more like a full criminal trial. The Commission received 55 responses to its CP14 and on 10 April 2013 published an analysis of those responses.15 The latter revealed inter alia a lack of consensus both as to the content of a reformed legal test and as to a reformed ‘trial of the facts’ procedure. As a result the Commission posed a number of further questions in an issues paper published on 2 May 2014, 16 to which responses were invited by 25 July 2014. The Commission anticipates that its next publication on unfitness to plead will be a final report in the spring of 2015. I now turn to the empirical study of unfitness to plead, conducted for the Commission and covering the seven-year period 2002 to 2008, which I have now updated to include the years 2009 to 2011, giving a 10-year research period.

Recent Research Results What follows is a study of formal findings of unfitness to plead during the 10-year period from 2002 to 2011 in order to assess the continued impact of flexibility of disposal together with the effect of the changes implemented by the Domestic Violence, Crime and Victims Act 2004. At the outset, however, the limitations of this current study need to be emphasised for, unlike my three earlier studies referred to above, on this occasion access to court files, and in particular relevant psychiatric reports, was unavailable. Despite this, however, the following research tries to give an up-to-date picture relating to unfitness to plead findings in England and Wales. Although the Statistics of Mentally Disordered Offenders continue to give the number of unfitness to plead findings annually in relation to 13

ibid para 6.140. See Law Commission, 'Unfitness to Plead: An Issues Paper Response to Further Questions' (2014) available at http://lawcommission.justice.gov.uk/docs/unfitness_issues_response_form.pdf (last accessed 26/08/2014) 15 See Law Commission, 'Unfitness to Plead: Analysis of Responses' (2013) available at http://lawcommission.justice.gov.uk/docs/cp197_unfitness_to_plead_analysis-ofresponses.pdf (Last accessed 26/08/2014) 16 See Law Commission, 'Unfitness to Plead: Issues Paper' (2014) available at http://lawcommission.justice.gov.uk/docs/unfitness_issues.pdf (Last accessed 26/08/2014) 14

Chapter Two

16

13

11

13

10

63

1987

1988

1989

1990

1991

Total

Total

1996

1995

1994

1993

1992

Number Year

Year

1b 1991 Act 1st5 years

123

33

35

31

13

11

Total

2001

2000

1999

1998

1997

Number Year

1c 1991 Act 2nd5 years

Table 1- Findings of UTP by 5-Year Periods from 1987-2011

la 1964 Act Final 5 years

56

329

76

70

80

53

50

Total

2006

2005

2004

2003

2002

Number Year

1d 1991 Act 3rd5 years

519

109

118

85

92

115

Total

2011

2010

2009

2008

2007

Number Year

1e 1991 Act 4th5 Years

488

101

91

82

114

100

Number

Unfitness to Plead in Operation

57

restricted patients, 17 no official statistics are published on the use of unfitness to plead where other disposals are given. A final caveat, therefore, relates to the consistency of the data which were collected for this study using three statistical returns from the Ministry of Justice. Inevitably, although some disparity has been found in relation to these three sources, as complete a picture as seems possible of UTP findings has emerged for the purpose of this research.18

The Research Findings The Number of UTP findings Table 1 above gives the annual number of findings of UTP for the last 5 years of the operation of the original 1964 Act, the first 5 years, the second 5 years and the third and fourth 5 years of the 1991 Act. Until the third 5-year period of the 1991 Act the picture was of a continuing but steady rise in the number of UTP findings. However, it is noticeable that this has halted and that in the fourth 5-year period there has been a decline. Thus, in the fourth 5 years there was an annual average of 97.6 UTP findings compared with an average of 103.8 in the third five year period while in the second 5 years there was an annual average of 65.8 UTP findings and 24.6 findings in first five year period. This compares to an average of 12.6 from1987-91 (although in the previous 11 years from 1976-1986 the average was 19.8) with an overall total of 1,459 UTP findings for the first twenty years of the 1991 Act, giving an annual average of 73 findings. 17

See Ministry of Justice Offender Management Caseload Statistics 2012 annual tables at Table A6.5. It should also be noted that the Ministry of Justice figures are based on the date of the hospital warrants rather than the date of the finding. This may have led to some inconsistency in relation to the actual number of annual findings. Thus, the total number of UTP findings which resulted in hospital orders with restrictions recorded by the Ministry of Justice in the above Table for the nine year period 2003 to 2011 is 342 while the number contained in this study for the same ten years is 311. It is possible that some of this inconsistency may have resulted from the fact that some restriction orders may be being mistakenly entered on the MOJ database as ordinary hospital orders. 18 I would like to acknowledge my gratitude to all the agencies and personnel involved for the generous assistance I received from them in carrying out this research.

Chapter Two

58

Table 2 below gives the annual number of UTP findings for the research period for this study, namely 2002 to 2011. The total of UTP findings during this period was 1007, giving an annual average of 101. Table 2 –UTP Verdicts 2002-2011 Frequency

Percent

Cumulative Percent

2002

115

11.4

11.4

2003

92

9.1

20.6

2004

85

8.4

29.0

2005

118

11.7

40.7

2006

109

10.8

51.5

2007

100

9.9

61.5

2008

114

11.3

72.8

2009

82

8.1

80.9

2010

91

9.0

90.0

2011

101

10.0

100.0

Total

1007

100.0

Table 3 below gives the sex/age distribution of those found UTP. It shows that the vast majority of those found UTP continue to be males at 89.6 per cent (n=902), compared to 10.4 per cent for females (n=105). The mean age at the time of the offence was 35.2 (range 12 to 84), with males having a mean age of 35.1, whilst females had a higher mean age of 36.2. The most prevalent age range for both males and females is 20-29 (n=317, 31.5 per cent), with the vast majority of those found UTP falling within the age ranges of 20-29 or 30-39 (n=559, 55.5 per cent).

Unfitness to Plead in Operation

59

Table 3 Sex/age distribution Age range of accused

Total

sex of accused

Total

male

female

up to 15

14

1

15

15-19

90

9

99

20-29

290

27

317

30-39

218

24

242

40-49

137

32

169

50-59

71

7

78

60-69

44

5

49

70-79

27

0

27

80-89

9

0

9

not known

2

0

2

902

105

1007

The Offences Charged Table 4 gives the main offence charged which in each case led to a finding of UTP. It can be seen from this that although there was a wide spread of offences, the most prevalent continues to be indecent/sexual assault (n=189, 18.8 per cent). Table 5 gives a breakdown of the broad types of offence.

Chapter Two

60

Table 4 main offence charged Frequency

Percent

Cumulative Percent

murder

46

4.6

4.6

attempted murder

23

2.3

6.9

manslaughter

8

.8

7.6

GBH

121

12.0

19.7

ABH

99

9.8

29.5

arson

100

9.9

39.4

criminal damage

12

1.2

40.6

robbery

72

7.1

47.8

burglary

44

4.4

52.1

rape

45

4.5

56.6

indecent/sexual assault

189

18.8

75.4

threats to kill

18

1.8

77.2

kidnap/child abduction

10

1.0

78.2

(death by)dangerous driving

15

1.5

79.6

possession/ importation/supply of drugs

10

1.0

80.6

make indecent photos of child

6

.6

94.1

threatening words/behaviour

4

.4

81.0

possession of firearm with intent

17

1.7

82.7

make explosive substance with intent

1

.1

82.8

breach restraining order

9

.9

83.7

affray

31

3.1

86.8

false imprisonment

6

.6

87.4

having article with blade

18

1.8

89.2

theft

18

1.8

91.0

obstruct engine on railway

1

.1

91.1

immigration offence

6

.6

91.7

Unfitness to Plead in Operation

61

racially aggravated assault

8

.8

92.5

bomb hoax

4

.4

92.9

Possess weapons designed for discharge of noxious liquid etc.

1

.1

92.9

child cruelty

2

.2

93.1

pervert course of justice

4

.4

93.5

possession offensive weapon

6

.6

94.7

putting people in fear of violence

10

1.0

95.7

false accounting

3

.3

96.0

Cause/incite child prostitution

1

.1

96.1

obtain property/money transfer by deception

7

.7

96.8

forgery

2

.2

97.0

indecent exposure

8

.8

97.8

conspiracy to cheat public revenue

1

.1

97.9

blackmail

1

.1

98.0

Disqualified person managing company

1

.1

98.1

breach ASBO

2

.2

98.3

breach sex offence prevention order

2

.2

98.5

trespass w/i to commit sex offence

1

.1

98.6

harassment

1

.1

98.7

handling stolen goods

4

.4

99.1

possession false documents

3

.3

99.4

not known

2

.2

99.6

Conspiracy to defraud

2

.2

99.8

voyeurism

1

.1

99.9

act outraging public decency

1

.1

100.0

1007

100.0

Total

Chapter Two

62

Table 5 Type of Offence Frequency

Percent

Cumulative Percent

fatal assault

54

5.4

5.4

non-fatal assault

338

33.6

38.9

damage to property (including arson)

110

10.9

49.9

offence of dishonesty

84

8.3

58.2

sexual offence

252

25.0

83.2

driving offence

14

1.4

84.6

drugs offence

11

1.1

85.7

threatening behaviour

123

12.2

97.9

other

21

2.1

100.0

Total

1007

100.0

As in my previous studies, offences against the person (including robbery, kidnap/child abduction, false imprisonment and child cruelty) remain the most common type of offence with a total of 338 (33.6 per cent) non-fatal and 54 (5.4 per cent) fatal offences.

The ‘Trial of the Facts’ The ‘trial of the facts’ (TOF) follows the ‘trial of the issue’ of UTP and is mandatory once the accused has been found UTP in relation to the offence(s) charged. The result of the TOF is given below in Table 6a, although in 275 (27.3 per cent) cases the result is coded as ‘uncertain’ as there was no information on this issue. As in my earlier study of UTP cases from 1997-2001 there were some cases where no TOF took place. The reasons were as follows. In 17 cases the prosecution offered no evidence. In nine cases the judge ordered the indictment to remain on file or stayed the proceedings (no further details are available as to why this was done). In one case a nolle prosequi was issued. In two cases the accused was certified insane prior to arraignment and in a final case the indictment was quashed.

Unfitness to Plead in Operation

63

In total therefore there were 30 cases where no TOF took place. In the vast majority of cases where some information about the TOF was available the accused was found to have done the act on all of the charges (n=642, 63.8 per cent). In only 26 cases was it clear that the accused had done the act on one or more offence but had been acquitted on other(s). In 28 cases (2.8 per cent) the accused was acquitted of all offences. Table 6b gives the main offence charged cross-tabulated with the TOF result. It can be seen from this that 12 of the 28 acquittals were in respect of indecent/sexual assault, which as mentioned above continues to be the most prevalent single offence. It is also of note, however, that there are three acquittals for burglary and two for rape. There were also single acquittals for murder, attempted murder, GBH, arson and robbery. It seems clear, therefore, that acquittals are continuing to take place in relation to some serious offences. Table 6a Result of Trial of Facts Frequency

Percent

Cumulative Percent

D did the act on all

642

63.8

63.8

did the act on some, acquitted on others

26

2.6

66.3

acquitted on all

28

2.8

69.1

TOF did not take place as no evidence offered

17

1.7

70.8

uncertain

275

27.3

98.1

indictment to remain on file/stayed

9

.9

99.0

nolle prosequi

1

.1

99.1

D discharged

6

.6

99.7

no TOF as certified insane before arraignment

2

.2

99.9

indictment quashed

1

.1

100.0

1007

100.0

Total

31

12

5

80

70

59

8

53

29

14

attempted murder

manslaughter

GBH

ABH

arson

criminal damage

robbery

burglary

rape

3

0

0

0

3

2

0

0

0

1

D did the act on all Did the act on some, acquitted on others

murder

2

3

1

0

1

1

1

0

1

1

TOF did not take place as no evidence offered 2

0

0

0

3

1

2

0

0

0

22

12

17

4

32

23

35

3

10

13

1

0

1

0

0

0

1

0

0

0

Indictment to remain on file/ stayed

Result of trial of facts nolle prosequi

Main offence charged uncertain

Acquitted on all

1

0

0

0

0

0

0

0

0

0

Table 6b Main Offence Charged * Result of Trial of Facts Cross-Tabulation

Chapter Two

0

0

0

0

1

1

2

0

0

0

no TOF as D discharged

64

no TOF as certified insane before arraignment 0

0

0

0

1

1

0

0

0

0

Indictment quashed 0

0

0

0

0

0

0

0

0

0

45

44

72

12

100

99

121

8

23

46

Total

111

14

7

13

6

1

13

1

6

19

indecent/ sexual assault

threats to kill

kidnap/child abduction

(death by)dangerous driving

possession/ importation/supply of drugs

threatening words/behaviour

possession of firearm with intent

make explosive substance with intent

breach restraining order

affray

2

1

0

0

1

0

0

0

0

7

0

0

0

1

0

0

0

0

0

12

0

0

0

1

0

1

0

0

0

3

10

2

0

2

2

3

2

3

4

51

0

0

0

0

0

0

0

0

0

4

Unfitness to Plead in Operation

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

31

9

1

17

4

10

15

10

18

189

65

4

14

14

0

4

6

3

0

1

4

3

false imprisonment

having article with blade

theft

obstruct engine on railway

immigration offence

racially aggravated assault

bomb hoax

Possess weapons designed for discharge of noxious liquid etc.

child cruelty

pervert course of justice

make indecent photos of child

66

1

0

0

0

0

1

0

1

0

0

0

0

0

1

1

0

0

0

0

1

0

0

0

0

0

0

1

0

1

0

0

1

0

2

0

0

0

0

1

1

0

3

3

2

Chapter Two

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

6

4

2

1

4

8

6

1

18

18

6

4

7

3

1

4

2

5

0

0

0

1

possession offensive weapon

putting people in fear of violence

false accounting

Cause/incite child prostitution

obtain property/money transfer by deception

forgery

indecent exposure

conspiracy to cheat public revenue

blackmail

Disqualified person managing company

breach ASBO

0

0

0

0

0

0

0

0

0

1

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

1

1

1

0

3

0

1

0

0

2

1

0

0

0

1

0

0

0

0

0

0

0

Unfitness to Plead in Operation

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

2

1

1

1

8

2

7

1

3

10

6

67

1

4

1

0

0

0

1

harassment

handling stolen goods

possession false documents

not known

Conspiracy to defraud

voyeurism

act outraging public decency

642

1

trespass w/i to commit sex offence

Total

2

breach sex offence prevention order

68

26

0

1

0

0

0

0

0

0

0

28

0

0

1

0

0

0

0

0

0

17

0

0

0

0

0

0

0

0

0

275

0

0

0

2

1

0

0

0

0

Chapter Two

9

0

0

0

0

1

0

0

0

0

1

0

0

0

0

0

0

0

0

0

6

0

0

1

0

0

0

0

0

0

2

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

1007

1

1

2

2

3

4

1

1

2

Unfitness to Plead in Operation

69

The Disposals My earlier studies of UTP revealed that although hospital based disposals continue to dominate, many are imposed without restrictions, leading to the conclusion that flexibility of disposal was being fully utilised. Indeed, in the 1997-2001 study, it was concluded: First, although the percentage of restriction orders (ignoring the 31 cases of “none given”) has fallen from 45.5 per cent to 38.9 per cent what is equally noticeable is the increase in supervision and treatment orders from 13.6 per cent to 17.9 per cent (n=59). Taking account also of absolute discharges and guardianship orders this means that the overall percentage of hospital based disposals has fallen from 77.4 per cent to 62.9 per cent.19

Tables 7a and 7b below give the disposals for the current study. In 58 cases no disposal was given for the reasons indicated in Table 6a above (the 30 cases where no TOF took place plus the 28 acquittals for all offences). In addition, in six cases, although a TOF took place, the accused was then discharged, as opposed to being given an absolute discharge under the 1964 Act as amended. With regard to the other disposals restriction orders have again fallen from 38.9 per cent to 35.4 per cent (n=356), although in contrast the percentage of hospital orders has risen from 24 per cent to 29.1 per cent (n=293). This means that there has been an overall increase in hospital-based disposals, from 62.9 per cent to 64.4 per cent. However, we must bear in mind that there were 45 murder cases (ignoring the murder acquittal) where after the TOF disposal flexibility was unavailable. In addition, although the percentage of supervision (and treatment) orders has fallen from 17.9 per cent to 16.9 per cent (n=170), there has been an increase in the use of absolute discharges, from 3.6 per cent to 6.5 per cent (n=65). Overall, therefore, the percentage of nonhospital disposals has fallen from 27.6 per cent to 25.4 per cent. However, Table 7b below shows that both supervision (and treatment) orders and absolute discharges continue to be given for serious offences such as manslaughter (n=2), GBH (n=13), arson (n=7) (although there were also four guardianship orders given for arson) and robbery (n=14). Finally, the percentage of guardianship orders has fallen from 6.1 per cent to 2.0 per cent (n=20), which is hardly surprising in view of the fact that this form of disposal was abolished by the Domestic Violence, Crime and Victims Act

19

[2007] Crim LR, 541. See Table 11.

Chapter Two

70

2004. With this in mind it is now time to try to address the impact of the new disposal regime under the 2004 Act. Table 7a- Disposals

Disposals

Frequency

Percent

Cumulative Percent

none given

55

5.5

5.5

350

34.8

40.2

6

.6

40.8

293

29.1

69.9

20

2.0

71.9

145

14.4

86.3

25

2.5

88.8

65

6.5

95.2

3

.3

95.5

not known

33

3.3

98.8

defendant discharged

12

1.2

100.0

1007

100.0

restriction order without limit of time restriction order with limit of time hospital order guardianship order supervision (& treatment) order - 2 years supervision (& treatment) order -under 2 years absolute discharge D died prior to disposal

Total

1

1

0

4

3

5

0

2

3

4

murder

attempted murder

manslaughter

GBH

ABH

arson

criminal damage

robbery

burglary

rape

17

8

21

5

45

32

73

4

20

1

0

1

0

0

2

0

0

0

0

restriction order without limit of time restriction order with limit of time

45

hospital order 9

25

30

6

38

30

25

2

2

0

1

0

0

0

4

2

0

0

0

0

Disposals

7

6

12

0

6

12

5

2

0

0

supervision (& treatment) order - 2 years

Main offence charged guardianship order

none given

Table 7b Main Offence Charged * Disposals Cross-Tabulation

0

0

0

0

0

2

1

0

0

0

supervision (& treatment) order -under 2 ye

Unfitness to Plead in Operation

absolute discharge 0

1

2

1

1

11

7

0

0

0

D died prior to disposal 1

0

0

0

0

1

0

0

0

0

not known 3

1

3

0

0

3

4

0

0

0

2

0

1

0

1

1

2

0

0

0

defendant discharged 45

44

72

12

100

99

121

8

23

46

Total

71

19

0

0

0

1

0

1

0

0

1

indecent/sexual assault

threats to kill

kidnap/child abduction

(death by)dangerous driving

possession/ importation/supply of drugs

threatening words/behaviour

possession of firearm with intent

make explosive substance with intent

breach restraining order

affray

72

8

3

1

5

0

2

0

5

8

42

0

0

0

1

0

0

0

0

0

0

8

4

0

2

2

4

3

1

9

47

0

0

0

1

0

0

0

1

0

9

8

1

0

5

2

2

6

1

0

34

Chapter Two

0

1

0

0

0

0

1

0

0

13

4

0

0

1

0

0

5

1

1

10

0

0

0

0

0

0

0

0

0

1

1

0

0

1

0

1

0

1

0

13

1

0

0

0

0

0

0

0

0

1

31

9

1

17

4

10

15

10

18

189

0

0

1

0

1

1

1

1

1

0

0

false imprisonment

having article with blade

theft

obstruct engine on railway

immigration offence

racially aggravated assault

bomb hoax

Possess weapons designed for discharge of noxious liquid etc.

child cruelty

pervert course of justice

make indecent photos of child

1

0

0

0

1

0

0

0

1

2

0

0

0

0

0

0

0

0

0

0

0

0

1

2

0

0

1

3

4

1

5

8

3

0

1

0

0

0

0

0

0

1

0

0

4

0

1

0

0

3

1

0

5

3

2

0

1

0

0

0

0

0

0

1

1

0

Unfitness to Plead in Operation

0

0

0

0

1

1

0

0

4

3

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

1

6

4

2

1

4

8

6

1

18

18

6

73

0

0

0

0

1

0

0

1

0

0

0

possession offensive weapon

putting people in fear of violence

false accounting

Cause/incite child prostitution

obtain property/money transfer by deception

forgery

indecent exposure

conspiracy to cheat public revenue

blackmail

Disqualified person managing company

breach ASBO

74

0

0

1

0

1

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

4

1

1

0

0

4

2

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

2

0

2

4

3

Chapter Two

0

0

0

0

0

0

1

1

0

0

0

1

1

0

0

1

1

1

0

1

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

1

0

0

0

0

2

1

1

1

8

2

7

1

3

10

6

0

0

0

0

1

0

1

0

0

55

breach sex offence prevention order

trespass w/i to commit sex offence

harassment

handling stolen goods

possession false documents

not known

Conspiracy to defraud

voyeurism

act outraging public decency

Total

350

0

0

0

0

0

0

0

0

0

6

0

0

0

0

0

0

0

0

0

293

0

0

0

1

0

1

1

0

1

20

0

0

0

0

0

0

0

0

0

145

0

1

0

0

0

1

0

1

1

25

0

0

0

0

2

0

0

0

0

Unfitness to Plead in Operation

65

1

0

0

1

0

2

0

0

0

3

0

0

0

0

0

0

0

0

0

33

0

0

0

0

0

0

0

0

0

12

0

0

1

0

0

0

0

0

0

1007

1

1

2

2

3

4

1

1

2

75

76

Chapter Two

The Effect of the Domestic Violence, Crime and Victims Act 2004 The 2004 Act was implemented on March 31, 2005. Apart from abolishing the role of the jury in relation to the trial of the issue, the Act reduced UTP disposals to three, namely:

• • •

a hospital order (with or without a restriction order);20 a supervision order; an order for an absolute discharge.

With regard to the present study, which spans a period of 10 years, 39 (32.5 per cent) months of the research period were prior to the implementation of the 2004 Act and 81 (67.5 per cent) months post implementation. However, with this in mind it must be made clear that only those defendants arraigned on or after March 31, 2005 are subject to the new disposal regime.21 The following tables give a split of these two respective periods in order to show something of the impact of the 2004 disposal regime. Table 8 below shows the numbers of UTP cases involved pre-and-post the 2004 Act. It can be seen from this that 645 (64.1 per cent) of the UTP cases fell to be dealt with under the 2004 Act, compared to 362 (35.9 per cent) dealt with before the Act.

20 The hospital order is now identical to one made under the Mental Health Act 1983 and where the unfit to plead accused is charged with murder and the court has the power to make such an order, it must impose restrictions. 21 See R v Hussein [2005] EWCA Crim 3556 [14]: ’The fact that the appellant was committed or sent to the Crown Court long before 31st March 2005 is nothing to the point.’

Unfitness to Plead in Operation

77

Table 8 Year of Decision

Table 9 below gives a breakdown of the type offences charged in the two periods pre-and -post the enactment of the 2004 Act. It can be seen from this that the pattern of offences has remained fairly consistent.

78

Chapter Two

Table 9 Type of Offence * Domestic Violence Act Cross-Tabulation

Unfitness to Plead in Operation

Table 10 Disposals

79

80

Chapter Two

Table 10 above gives the disposals for the two periods. The two Guardianship Orders in the post-2004 Act section of the table seem to have been given although the defendants were arraigned after 31 March 2005. In one case the committal date was February 2005 in which case the confusion referred to at note 21 in R v Hussein22 above may have operated. However, in the other case both the committal and arraignment dates were in 2006, in which case the Order is either a disposal or coding error. What is of note in Table 12 is the drop in the percentage of restriction orders from 43.1 per cent (n=156) in the pre-2004 Act list to 31.0 per cent (n=200) in the post-2004 Act list. In addition, there is an increase in the post-2004 Act percentage of non-hospital disposals from 21.9 per cent (n=79), 22.7 per cent (n=82) if discharged defendants are included, pre2004 Act to 27.3 per cent (n=176) post-2004 Act which increases to 28.7 per cent (n=185) if the discharged defendants are included.

Concluding Remarks My earlier studies revealed a continued increase in the annual number of UTP findings. The increase from a maximum of 80 findings in 1999 to a peak of 118 findings in 2005 strongly suggested that the legislative changes contained in the 1991 and 2004 Acts were having an ongoing effect. However, the total number of findings for the five-year period 2007 to 2011 shows a decrease to 488 from 519 in the previous five-year period of 2002 to 2006. It is possible, therefore, that the number of UTP findings may have reached a plateau. For the ten year period of this research study although hospital-based disposals still predominate in UTP (64.4 per cent, n= 649), with 35.4 per cent (n=356) being imposed with restrictions, the percentage of restriction orders has fallen from 38.9 per cent for the five years 1997 to 2001. In addition, although the percentage of supervision (and treatment) orders has fallen from 17.9 per cent to 16.9 per cent (n=170) there has been a marked increase in the use of absolute discharges from 3.6 per cent to 6.5 per cent (n=65). Overall, however, the percentage of non-hospital disposals has fallen from 27.6 per cent to 25.4 per cent. With regard to the possible impact of the Domestic Violence, Crime and Victims Act 2004, what is of note is an overall reduction in the percentage of restriction orders from 43.1 per cent (n=156) in the pre-2004 Act cases to 31.0 per cent (n=200) in the post-2004 Act cases. In addition, 22

ibid, Hussein.

Unfitness to Plead in Operation

81

there is an increase in the post-2004 Act number of non-hospital disposals from 21.9 per cent (n=79) pre-2004-Act to 27.3per cent (n=176) post2004 Act. These differences could be indicative of an increasing awareness and use of flexibility of disposal. Finally, with regard to my earlier comment that the number of UTP findings may have reached a plateau; this could have important implications for the reform process, in the sense that the Pritchard23 test may be inhibiting any meaningful increase in UTP findings. In this connection, while it is clear that Pritchard 24 identifies those who are foundationally unfit, it fails to capture those who may have a rudimentary understanding of the trial process but who are decisionally incompetent and thus lack the capacity to participate effectively in the proceedings. With this in mind it is interesting to note that the Law Commission in its recent Issues Paper25 has moved away from a legal test based entirely on the Mental Capacity Act 2005 in favour of one which would retain the Pritchard criteria, albeit updated, but supplement them with a decisional capacity limb.26 In doing so the Commission cites the test adopted by the Royal Court of Jersey in the case of Attorney General v O’Driscoll 27 which requires determination of whether the accused has ‘the capacity to participate effectively in the proceedings’, having regard to the ability of the accused: a) to understand the nature of the proceedings so as to instruct his lawyer and to make a proper defence; b) to understand the substance of the evidence; c) to give evidence on his own behalf; d) to make rational decisions in relation to his participation in the proceedings (including whether or not to plead guilty), which reflect true and informed choices on his part.28 As the Commission points out, the Pritchard criteria ‘have largely proved workable, save for the exclusion of decision-making capacity’,29 so 23

(1836) 7 C&P 303 ibid 25 Law Com IP, 2014 (n 16) 26 ibid para 2.29. 27 [2003] JLR 390 [29]. 28 ibid 29 Law Com IP, 2014 (n 16) para 2.31. 24

82

Chapter Two

a combined legal test of the type adopted in Jersey may represent an appropriate way forward. It is to be hoped, therefore, that the Commission’s work on unfitness to plead will proceed and that in due course we will achieve wholesale reform of this complex area of law and procedure, with the result that more vulnerable defendants will be protected from the criminal trial process while others may be helped to stand trial through the use of special measures.

CHAPTER THREE THE BOUNDARIES OF THE INSANITY DEFENCE: THE LEGAL APPROACH WHERE THE DEFENDANT DID NOT “KNOW THAT WHAT HE WAS DOING WAS WRONG” JESSE ELVIN AND CLAIRE DE THAN

Introduction Insanity is a contentious general mental disorder defence. The M’Naghten test for insanity is well-established in English law, but controversial.1 It stipulates that ‘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 as not to know that what he was doing was wrong’. 2 In this chapter we will critically analyse the law relating to the ‘wrongfulness’ limb of this test. The Law Commission has recently proposed the replacement of the insanity defence with a new defence of ‘not criminally responsible by reason of recognised medical condition’.3 Under this new defence, ‘An accused would be entitled to the new special verdict of “not criminally responsible by reason of recognised medical condition” where 1

See e.g. Mark Hathaway, stating ‘It has long been accepted that the defence of insanity, in Anglo-American law, is unsatisfactory and in need of reform’; ‘The Moral Significance of the Insanity Defence’ (2009) 73 Journal of Criminal Law 310. 2 M’Naghten’s Case [1843] UKHL J16 (19 June 1843). 3 Law Commission, Criminal Liability: Insanity and Automatism (Discussion Paper, 2013) para 1.87.

84

Chapter Three

he or she wholly lacked a relevant criminal capacity at the time of the alleged offence because of a qualifying condition’.4 The range of disposals for adults ‘would be the same as that currently available following a verdict of not guilty by reason of insanity’. 5 Currently, ‘[f]ollowing a special verdict, the Crown Court has the power to make an absolute discharge, a supervision order, or to order that the person be detained in hospital, possibly with the restriction that he or she is not to be released until permission is given by the Secretary of State’. 6 The general appropriateness of the M’Naghten test and the Law Commission’s proposals are beyond the scope of this chapter, which will focus upon the ‘wrongfulness’ limb of the M’Naghten test and other issues as they relate to this matter. In another chapter of this volume, 7 we will consider whether, for the reasons stated by the Law Commission,8 there should be a special general defence based upon a recognised medical condition. In its 2013 discussion paper on the insanity and automatism defences,9 the Law Commission considered the appropriateness of the ‘wrongfulness’ limb of the M’Naghten test for insanity. As it stated,10 English case law has confirmed that ‘wrong’ here means ‘contrary to law’ rather than ‘morally wrong’.11 Thus, at least in principle, D cannot use the insanity defence where s/he appreciates the nature and quality of the act in question and that it is legally wrong, even if s/he has a mental disorder which makes him or her think that the act is morally right. The Law Commission calls this ‘an unusually, and arguably unjustifiably, narrow interpretation of the “wrongfulness” limb,’ 12 and has proposed reform in this respect. This chapter will consider whether English law has indeed taken the correct approach here. Should there be a general mental disorder defence which extends to those who understand the legal wrongfulness of their acts but perform them because they believe them to be morally correct? One important issue which will be examined here is how the law should 4

ibid para 4.1. ibid para 1.1106. 6 ibid para 1.25. 7 Chapter eleven, ‘How should the criminal law deal with people who have partial capacity?’ 8 Law Com DP, 2013 (n 3) para 2.18-2.34. 9 ibid 10 ibid para 1.50. 11 See the remarks of Lord Goddard CJ in R v Windle [1952] 2 QB 826, 832, which were approved by the Court of Appeal in R v Johnson [2007] EWCA Crim 1978. 12 Law Com DP, 2013 (n 3) para 1.50.. 5

The Boundaries of the Insanity Defence

85

respond to cases of alleged ‘brainwashing’, where D argues that he or she was brainwashed, and as a result of this brainwashing believed that the act in question was morally right. This issue has been raised in relation to a number of notable cases, such as the trials of Patricia Hearst and Lee Malvo in the US,13 and is pertinent in relation to the so-called ‘War on Terrorism’, where it is sometimes claimed that brainwashing by extremists has caused defendants to participate in acts of terrorism. As English law currently stands, it appears that indoctrinated defendants could not use the automatism defence, since the Court of Appeal has recently confirmed that the essence of that defence is that there ‘is complete destruction of voluntary control’.14 However, it is arguable that such defendants should fall within the scope of the insanity defence15 or a new general defence specifically concerned with brainwashing.16

Should there be a ‘wrongfulness’ limb at all in a general mental disorder defence? The question as to whether there should be a ‘wrongfulness’ limb at all in a general mental disorder defence was recently considered by the Law Commission.17 The Commission correctly states that the insanity defence ‘is essentially a denial of criminal responsibility due to a person’s lack of capacity’.18 In considering what should count in terms of lack of capacity, it concludes: ‘one of the relevant capacities is the capacity for practical reasoning, and for the purposes of the new defence this is best expressed as the capacity rationally to form a judgment about the relevant conduct or circumstances’.19 Furthermore, it recognises that ‘[s]ome might say that the ability to make a judgment rationally incorporates an ability to 13 United States v Hearst, 466 F Supp 1068 (ND Cal 1978), and Commonwealth of Virginia v Lee Boyd Malvo, Circuit Court of Fairfax County, Virginia (2003) (unreported). 14 R v Coley, McGhee and Harris [2013] EWCA Crim 223 [22] (Hughes LJ). 15 See e,g, Rebecca Emory, ‘Losing Your Head in the Washer – Why the Brainwashing Defense Can be a Complete Defence in Criminal Cases’ (2010) 30 Pace Law Review 1337. 16 See ibid 1358, concluding that a defence specifically concerned with brainwashing ‘should be adopted into the Model Penal Code and associated with the insanity defense’. 17 Law Com DP, 2013 (n 3) para 4.23-4.33. 18 ibid para 2.18. 19 ibid para 4.14.

86

Chapter Three

appreciate what is right and what is wrong and therefore there is no need for a separate “wrongfulness” capacity to be part of the test in the new defence’.20 However, it reasons: It is true that a decision about how to act which took no account of the moral nature of the act might not be the result of a fully rational process, but we consider that this distinct feature ought to be made an explicit part of the capacity test if it is to be part of it at all.21

The Law Commission’s point is that ‘[a]ppreciation of the nature of an act surely includes appreciation of its … [wrongfulness]’.22 The Scottish Law Commission reached a similar conclusion on this issue: ‘a mere reference to lack of “appreciation of conduct” would leave the test incomplete, and in particular would fail to bring out how the mental disorder has an effect on the accused’s conduct’. 23 The Scottish Law Commission explained this by way of an example: if D fired a gun at V believing that V was the devil incarnate, then although D ‘may “know” the nature of the physical actions he takes, he cannot be said to have a full or proper appreciation of the nature of his conduct (the taking of innocent life)’.24 This is surely correct: it needs to be clear that D does not have capacity simply because s/he is aware of the physical acts s/he is performing. This is why the Law Commission concludes: [I]f a person did not have the ability to conform to the law because he or she could not understand that the conduct was something he or she ought not to do, and that incapacity was because of a qualifying recognised medical condition, then that person should not be held criminally responsible.25

While we agree with this particular conclusion about a person who lacks the ability to confirm to the law, this does not mean that we agree with the Law Commission’s related proposal about the definition of ‘wrongfulness’.

20

ibid para 4.28. ibid 22 ibid 4.25. 23 Scottish Law Commission, Report on Insanity and Diminished Responsibility (Scot Law Com 195, 2004) para 2.49. 24 ibid 2.50. 25 Law Com DP, 2013 (n 3) para 4.33. 21

The Boundaries of the Insanity Defence

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How should the law define ‘wrongfulness’ in this context? The Law Commission believes that the law is currently too narrow in relation to the ‘wrongfulness’ limb of the current insanity defence. As the Commission puts it: In the English jurisdiction, criticism of the ‘wrongfulness’ limb of the M’Naghten Rules has focused on the fact that it is restricted to those who lack awareness that what they are doing is legally wrong. This is unwarrantedly narrow, and does not reflect the reality of the psychiatric assessments. Assessing whether a person knew what they were doing was wrong is part of the test which psychiatrists currently apply.26

This is a contentious claim for two reasons. First, there actually appears to be no recent evidence on the practical application of the M’Naghten rules in this respect. As the Law Commission articulates, ‘information on the application of the M’Naghten Rules is only available from pre-2002 research’.27 However, as the Law Commission argues, ‘it is probably safe to draw inferences from these findings’,28 since there have been no significant post-2002 changes to the law in this context. 29 Secondly, and more importantly, the fact that psychiatrists interpret this limb of the M’Naghten test in a particular way does not in itself provide a principled argument for reform. The law should be informed by current psychiatric understanding, but its purpose is to determine whether ‘it is fair to hold … [D] criminally responsible’:30 this cannot be determined simply by reference to psychiatric practice. As Fletcher states, ‘the issue of insanity requires us to probe our premises for blaming and punishing’.31 26

ibid para 4.20. Law Commission, Insanity and Automatism: Supplementary Material to the Scoping Paper (July 2012) para 3.34. 28 ibid para 3.38. 29 The Law Commission asked consultees to comment upon this matter in its 2012 scoping paper (Criminal Liability: Insanity and Automatism (Scoping Paper, 2012) para 2.59), but referred to pre-2002 research on this point in its 2013 discussion paper (n 3 para 4.20). 30 Law Com DP, 2013 (n 3) para 1.131. See too James Brady, stating that ‘the purpose of the insanity defense is to exempt from the stigma of moral blame accompanying conviction those who, because their conduct is not voluntary, are not proper subjects of moral blame’; ‘Abolish the Insanity Defense?--No!’ (1971) 8 Houston Law Review 629, 640. 31 George Fletcher, Rethinking Criminal Law (Little, Brown 1978) 835. 27

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Furthermore, upon closer examination, it appears that psychiatrists are not actually always practising psychiatry when they address the meaning of ‘wrongfulness’. As Kearns and Mackay put it in important research on the practical operation of the insanity defence: The overwhelming impression is that the question the majority of psychiatrists are addressing is: if the delusion that the defendant was experiencing at the time of the offence was in fact reality, then would the defendant’s actions be morally justified.32

This is a moral question rather than a psychiatric one. Psychiatry is the study and treatment of mental disorder. Expertise in psychiatry is relevant in determining D’s state of mind at the relevant time, the cause of any mental disorder, and any appropriate treatment. It is not relevant in determining whether D’s actions would be morally justified if the delusion that D was experiencing were in fact reality. Thus, as Kearns and Mackay suggest, ‘it may be argued that psychiatrists in many respects are adopting a common sense or folk psychology approach’.33 On a practical level, it is not clear how a psychiatrist – or indeed anybody else – might apply such common sense or folk psychology in relation to certain cases. Let us suppose that D kills V because D suffers from a delusion, caused by mental illness, that V is assisting a race of alien shape-shifting lizards whose secret goal is world domination. If the delusion that D experienced at the time of the killing were true, would D’s actions be morally justifiable? This is a difficult question to answer precisely because of the nature of D’s delusion: determining whether it would be morally acceptable to kill a person assisting a race of alien shape-shifting lizards would be a strange question that a jury might have difficulty taking seriously. The Law Commission supports its claim that the current approach to ‘wrongfulness’ is unduly narrow with reference to the case of Andrea Yates. In the words of the Law Commission: Yates, a woman with a history of mental illness, drowned all five of her children in a bath. Believing that Satan had been conversing with her, she

32

Gerry Kearns and Ronnie Mackay, ‘More Fact(s) About the Insanity Defence’ [1999] Criminal Law Review 714, 723. 33 ibid. See also Mark Turner and Nicholas Moran herein at chapter eight.

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concluded she needed to kill her children while they were still innocent to save them from an eternity of torment in hell.34

As the Law Commission explains, Yates would not be able to use the ‘nature and quality’ limb of the insanity defence, since she did understand the nature of her physical acts and that they would lead to the deaths of her children.35 Moreover, it appears that she did know that what she was doing was against the law. 36 Thus, she would not have had a defence under English law, although it is arguable ‘that she did not know what she was doing was morally wrong’.37 The Law Commission believes that this is a practical problem with the current law. 38 However, this example raises, rather than settles, the question of what approach the law should adopt here. In M’Naghten itself, one of the questions asked of the court was:- ‘If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?’39 Tindal LCJ answered thus: … the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. 40

Hence a delusionary belief that the victim was attacking him would lead to a defence, but if the delusion were that the victim had slandered him then it would not. This element of the M’Naghten Rules appears to have fallen into disuse under English law, but parallel arguments have been made by academics more recently. Slobogin, for example, argues that ‘mental disorder should be relevant to criminal culpability only if it supports … [a] condition that, under the subjective approach to criminal liability increasingly accepted today, would be available to a person who is

34

Law Com SP, 2012 (n 29) para 2.39. ibid 36 ibid para 2.52. 37 ibid. Yates could not have established automatism under English law, since, as mentioned above, this defence requires involuntary action, rather than voluntary action founded upon a delusion. 38 Law Com SP, 2012 (n29) para 2.52. 39 M’Naghten (n 2) 211. 40 ibid 35

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not mentally ill’.41 His point is essentially the same as Tindal LCJ’s, that ‘Mental disorder should have exculpatory effect when, and only when, its effects lead to a lack of the required mens rea or reasons for committing the crime that sound in justification or duress’. 42 A defendant in the position of Yates would be liable in English law under this approach; she committed the actus reus of murder with the relevant mens rea, and had no reasons for the killing her children that would support a defence of justification or duress as English law on those defences currently stands.43 At this point, his argument departs from the M’Naghten approach to delusions; Slobogin’s contentious view is that: People who are mentally disordered are not any less able to control their behavior than many other people who commit criminal acts. Accordingly, for purposes of the criminal law, they should be treated the same as those who are not mentally ill.44

According to this position, D can be both ‘mad’ and ‘bad’: i.e. deserving of punishment even though s/he committed an offence as a result of mental illness. Slobogin explains his position by way of various examples, one of which concerns the well-known case of John Hinckley: Hinckley supposedly tried to kill President Reagan because he thought that, if he did, Jodie Foster would fall in love with him or at least come to live with him. Hinckley’s case obviously presents a much weaker claim of subjective justification; no jury is likely to find that an attack on the President of the United States is justified by a desire to improve one’s love life.45

41 Christopher Slobogin, ‘An End to Insanity: Recasting the Role of Mental Illness in Criminal Cases’ (2000) 86 Virginia Law Review 1199, 1202. 42 ibid 1238-39. 43 Duress would not be available, even putting aside the requirement that D must reasonably believe in the existence of the threat, since it is not a defence to murder (R v Howe [1987] AC 417) and the perceived threat must be sufficiently imminent (R v Hasan [2005] UKHL 22, [22], per Lord Bingham). Similarly, necessity would not be available: D must reasonably believe in the existence of an imminent threat (R v S [2012] EWCA Crim 389). 44 Slobogin (n 41) 1247. 45 Christopher Slobogin, ‘The Integrationist Alternative to the Insanity Defense: Reflections on the Exculpatory Scope of Mental Illness in the Wake of the Andrea Yates Trial’ (2002-2003) 30 American Journal of Criminal Law 315, 335.

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Thus, Hinckley would be liable under Slobogin’s proposed approach and the delusion rule from M’Naghten, notwithstanding that Hinckley’s actions were the result of mental illness. In contrast, D would be acquitted for lack of mens rea if, as a result of mental illness, he or she killed V believing V to be an animal rather than a human; D would be treated like any other defendant, and acquitted on the grounds of lack of mens rea.46 The Law Commission takes a different view to Slobogin. According to the Commission, an ill person who has delusional beliefs as a result of this illness ‘is incapable of making a rational judgment about how to respond to the real world’ in relation to this delusion,47 and potentially should not be liable because it ‘is not justifiable to hold someone criminally responsible for conduct amounting to a criminal offence if she or he lacked the capacity to avoid doing it’. 48 This is a contentious statement if the ability to make a rational judgment means having the ability to exercise reason.49 As will be seen in our other chapter in this volume, 50 rational judgment and capacity are controversial terms in themselves which raise issues of human rights and disability discrimination, and cause tensions with principles of international law. Case examples raise further problems: it is arguable that Yates exercised the ability to reason in the sense used by the Law Commission, since her actions were based upon logic. This does not mean that they were reasonable, since they were based upon a delusion. However, they were the result of what might be called ‘practical reasoning’, a term favoured by the Law Commission to describe ‘rationality’.51 The Law Commission quotes Elliott’s example of practical reasoning: ‘if I desire X and believe that action A will lead to X, then to A is rational, and not to A is irrational (assuming, of course, no other competing desires or beliefs that might interfere, and so on)’.52 Bearing Elliott’s example in mind, one could say that Yates desired X (to save her children from an eternity of torment in Hell), believed that action A 46

ibid, discussing a case involving a defendant called John Barclay. Law Com DP, 2013 (n 3) para 2.9. 48 ibid 49 See ibid, para A.70, stating: ‘Several writers emphasise the importance of a capacity for practical reasoning, meaning a reasoning process which leads to and supports action’. 50 Chapter eleven, ‘How should the criminal law deal with people who have partial capacity?’ 51 Law Com DP, 2013 (n 3) para 4.7. 52 Carl Elliott, The Rules of Insanity (SUNY Press 1996) 117, quoted by the Law Commission, ibid, para A.71. 47

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(killing them) would lead to X, and that her performance of this action was therefore rational. The Law Commission suggests that rationality is best viewed in a broad sense: ‘The capacity to be rational needs to be understood as encompassing all that goes on in the mind, incorporating the interplay between the abilities to think, to believe and to experience feelings’. 53 Nonetheless, it is not clear precisely what it means by this: for example, it is unclear what the distinction might be between the ability to think and the ability to believe, since a belief could be viewed as a type of thought (indeed, it is not obvious what else it might be!). The Law Commission proposes a new defence, where the party seeking to raise this defence must establish that: the defendant wholly lacked the capacity: (i) rationally to form a judgment about the relevant conduct or circumstances; (ii) to understand the wrongfulness of what he or she is charged with having done; or (iii) to control his or her physical acts in relation to the relevant conduct or circumstances as a result of a qualifying recognised medical condition.54

The Law Commission states that ‘one aspect of capacity to conform to the law should be the capacity to understand the wrongfulness of the act or omission, and that wrongfulness should not be limited to illegality’. 55 However, one significant weakness with its proposal is that the Law Commission does not explain exactly how ‘wrongfulness’ should be determined, if it is not limited to illegality. The reference to removing the limitation to illegality indicates that the ‘wrongfulness’ limb of the Law Commission’s proposed new defence would be wider than the corresponding limb of the M’Naghten test. This might mean that D would be able to rely upon this limb where s/he wholly lacked the capacity to know that his or her conduct was legally or morally wrong; i.e. that a lack of capacity in either sense would suffice here. Nonetheless, this does not seem to be what the Law Commission is proposing. On the issue of 53

ibid para A.69. ibid para 4.160. 55 ibid para 4.33. 54

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‘wrongfulness’, the Commission asserts: ‘[i]t would obviously not be desirable for a court to have to conduct an inquiry into what was generally regarded as morally wrong; on the other hand, the standard cannot be wholly subjective to the accused’.56 The Law Commission suggests that English law should follow the Canadian definition of ‘wrongfulness’, stating: ‘[i]n Canadian case law, the accused need only appreciate that the act was something he or she ought not to do … We think this is an approach we should follow’.57 The Canadian Supreme Court has held that ‘[t]he issue [in this context] is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person’.58 In other words, the Canadian approach can require a court to conduct an inquiry as to what is generally regarded as morally wrong, which is something that the Law Commission has stated is undesirable. This Canadian approach is analogous to the test for ‘dishonesty’ used in relation to the English law on theft, where D is not dishonest unless s/he realised that his or her actions were contrary to ‘the ordinary standards of reasonable and honest people’. 59 Thus, it is open to the criticism that it is premised upon the mistaken assumption that there will be a community norm in relation to each case at hand;60 indeed, ‘[i]t has been queried how the appropriate moral standard is to be proved in a socially diverse country’.61 The Law Commission explains that the ‘wrongfulness’ limb of its proposed new defence might be relevant in relation to certain cases: If the accused suffered from a mental illness involving paranoia which led to his belief that his child was possessed by evil spirits, he might see no wrong in an ‘exorcism’ which entailed assaults on the child …. A diminished responsibility plea might succeed on a murder charge. This limb of the proposed new defence could however be significant if there was a total loss of capacity.62 56

ibid para 4.21. ibid para 4.22. 58 Oommen [1994] 2 SCR 507. 59 Ghosh [1982] QB 1053, 1064. 60 Such an objection that has been made in relation to the analogous English test for ‘dishonesty’: see Edward Griew, ‘Dishonesty – The Objections to Feely and Ghosh’ [1985] Criminal Law Review 341, criticising the Ghosh test. 61 Stanley Yeo, ‘The Insanity Laws in the Commonwealth of Nations’ [2008] Singapore Journal of Legal Studies 241, 251-252, citing Edwin Tollefson and Bernard Starkman, Mental Disorder in Criminal Proceedings (Carswell 1993) 31. 62 Law Com DP, 2013 (n 3) para 4.30. 57

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This example does not shed any light on the precise meaning of ‘wrongfulness’ under its proposed new defence. The Law Commission also explains that the ‘wrongfulness’ limb of its proposed new defence would not cover certain other cases: This limb of the defence would not be of any help to a person who, for a reason other than a recognised medical condition, did not know that what they were doing was generally regarded as wrong. For example, an accused who had been indoctrinated but had no recognised medical condition would not qualify for the new defence. If the accused knew that his or her act was something that others would say he ought not to do, though personally thinking he ought to do it, the accused would not be able to plead the defence unless he lacked capacity in one of the other relevant ways as a result of a recognised medical condition.63

Thus, it appears that ‘wrongfulness’ in this context would be determined by reference to what is generally regarded as wrong, despite the Law Commission’s somewhat contradictory assertion that ‘it would obviously not be desirable for a court to have to conduct an inquiry into what was generally regarded as morally wrong’.64 It also appears that the law would generally be taken as representing community moral norms, since the Law Commission recommends that it should be left ‘open to show that the accused knew the act was against the law, which signals that it is generally thought of as wrong, but does not limit awareness of wrongfulness to awareness of illegality (as English case law does)’.65 The implication here seems to be that the central issue in terms of the ‘wrongfulness’ limb would be whether D lacked the capacity to understand that his or her actions were contrary to relevant community moral norms, or ‘generally thought of as wrong’,66 and that D may lack this capacity even where s/he realised that his or her conduct was against the law. If this is the correct interpretation of this particular Law Commission proposal, then it would seem that the novel terminology would expand the ‘wrongfulness’ limb to potentially include a defendant who realised that his or her conduct was against the law. The proposal could also be interpreted as narrowing this limb to exclude a defendant who lacks the capacity to understand that his or her actions were contrary 63

ibid para 4.32 [emphasis added]. ibid para 4.21. 65 ibid 66 Ibid para 4.22. 64

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to the law, but who retains the capacity to understand that they are generally regarded as wrong. The Law Commission’s proposed approach to the ‘wrongfulness’ limb could be commended on the basis that it seems rightly to recognise that the law does not always signal what is generally thought of as wrong: for example, it is unlikely that many people regard it as wrong to carry a plank along a pavement, or to ‘beat or shake any carpet, rug, or mat’ in any public street, although performing these actions could be a crime.67 There are many other actions which are technically against the criminal law but which are not regarded as contrary to prevalent moral standards, and the criminal law on obscenity and public decency has rarely led to convictions in recent decades for precisely that reason. This does not mean that this particular Law Commission proposal is beyond criticism. For instance, although it apparently recognises that there may be a difference between community moral standards and legal standards, it seems to be premised upon the dubious assumption that D will only be prosecuted where his or her actions were wrongful in a broad, rather than strictly, legal sense. It is not clear how this aspect of the proposed defence would operate where D’s actions were not wrongful in this sense. It might also be argued that the Law Commission proposals do not go far enough where indoctrination or brainwashing is concerned, since the Commission states that D would not qualify for its new defence where s/he had been indoctrinated but had no recognised medical condition. Critically analysing US law, Emory argues that brainwashing should operate as an excuse, and that brainwashed defendants should receive treatment rather than punishment. 68 She characterises brainwashing as a coercive process whereby the indoctrinator gives a person a new belief system.69 She accepts Delgado’s view that this involves ‘isolation, physiological, depletion, assertions of authority, guilt manipulation, peer pressure, and cognitive dissonance’.70 Furthermore, she claims: ‘[a]lthough the American Psychological Association (“APA”) has declined to rule “brainwashing” as a scientific theory in regards to religious cults, there have been experts who believe that "brainwashing" is a legitimate theory’. 71 She argues that ‘brainwashed people cannot 67

Contrary to the Metropolitan Police Act 1839, sections 54 and 60 respectively. Emory (n 15) 1339. 69 ibid 1340. 70 ibid, quoting with approval Richard Delgado, ‘Ascription of Criminal States of Mind: Toward a Defense Theory for the Coercively Persuaded ("Brainwashed’) Defendant’ 63 (1978-1979) Minnesota Law Review 1, 2. 71 ibid 1340-41. 68

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distinguish between right and wrong …Though the defendant is conscious of what he is doing, he thinks he is doing the right thing’.72 Her conclusion is that this means that ‘brainwashing should be placed under the insanity defense’73 where D is ‘acting in furtherance of the indoctrinator’s vision and goals’.74 This is not the way that English law approaches the situation. If we assume for the moment that brainwashing is a valid scientific concept (an issue to which we will return), a defendant who had been brainwashed might not be allowed to use this brainwashing to raise an insanity defence under current English law: for example, because D still would know the nature and quality of the act and that it was legally wrong, or because the brainwashing process might be viewed as an external rather than an internal factor, and thus not a ‘disease of the mind’, given the current English interpretation of the M’Naghten test.75 Is this acceptable? Focusing upon US law, Delgado argues that the conclusion that brainwashed defendants do not have a legal defence open to them ‘is a troubling one, for it means denying a defense to a class of defendants who are, by ordinary moral intuitions, often more victims than perpetrators’.76 His point is that punishment must be legitimate, and that this means that it ‘must advance one or more of the accepted rationales of the criminal justice system – societal safety, rehabilitation, deterrence, or retribution’.77According to him: [P]unitive treatment of coercively persuaded defendants is difficult to reconcile with this requirement. Past experience demonstrates that most such victims, once removed from the coercive environment, soon lose their inculcated responses and return to their former modes of thinking and acting. This return often is accompanied by expressions of anger, in which the former captive accuses his captors of the ‘rape’ of his mind and personality. Punishment of such individuals does little to promote the rationales of the criminal justice system.78

72

ibid 1354. ibid 74 ibid 1355. 75 Sullivan [1984] AC 156. However, the latter matter is not straightforward, since Emory states that some theorists believe that‘[w]ithout some sort of predisposition, a person would not be prone to brainwashing’; Emory, (n 15) 1357. 76 Delgado (n 70) 6-7. 77 ibid 8. 78 ibid 8-9. 73

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This view is based upon the notion that a brainwashed defendant lacks ‘the ability to understand the rules, to deliberate without undue impairment of his capacities, and to reach decisions concerning his choice of conduct’. 79 His opinion is that rehabilitation of such a defendant is unnecessary, since such individuals do not usually ‘need to be “reformed” for a second time by the criminal justice system to be law abiding’,80 and that punishment cannot be justified on any rationale because a brainwashed defendant is morally blameless.81 His view is that there is a need for a new defence to cover such defendants, who he believes act with a guilty mind that is not their own. The new defence would deal with what he calls transferred or implanted mens rea, and apply in limited circumstances: It is proposed that the following elements must be shown to exist: (1) that coercive persuasion actually occurred; (2) that the defendant’s unlawful action was the proximate result of that coercive persuasion; and (3) that exculpation for the act committed is morally justified.82

Applying such criteria would not necessarily be straightforward. However, Delgado highlights certain factors that would, in combination, merit the application of his proposed ‘transferred mens rea’ defence; for example, he states that ‘unusual or abnormal influences’ should have caused D’s mental state,83 that this mental state should represent ‘a sharp departure from the individual’s ordinary mode of thinking’, 84 and that it should be something that is imposed on D rather than something that D self-selected.85 He would not allow a legal defence based upon ‘transferred mens rea’ in a case such as ‘The Manson women’,86 since he believes that they apparently ‘elected to voluntarily become members of the group, and to undergo a lengthy process of initiation and indoctrination without protest’. 87 His opinion is that the individuals in such a case could be 79

ibid 10. ibid 9. 81 ibid 10 82 ibid 19. 83 ibid 84 ibid 20. 85 ibid. 86 ibid 21. 87 ibid 80

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blamed for their own condition, just as a defendant can be blamed for choosing to become voluntarily intoxicated.88 Similarly, we would argue that the case of Nicky Reilly would apparently not fall within the scope of Delgado’s proposed new defence if it were to be introduced in English law. Reilly, a British citizen with a low IQ who suffers from Aspergers Syndrome, converted to Islam in 2002 at the age of 16. He tried to detonate a home-made explosive in an Exeter restaurant toilet in 2008, having left a note stating that this is ‘what God wants from his mujahideen’.89 Police sources reportedly initially claimed that Reilly was ‘preyed on, radicalised and taken advantage of’90 by individuals via the internet. A police official later stated that, while police believe that two men in Pakistan contacted Reilly via an extremist website, he was ‘selfradicalised …. He acted alone … and … under his own steam’.91 This apparent element of ‘self-radicalisation’ would seem to mean Delgado’s proposed brainwashing defence would not cover a case such as Reilly’s, although his case is complicated by the fact that his mental conditions arguably made him particularly vulnerable to being ‘preyed upon’. Similarly, this proposed defence arguably would not apply to a case such as the one involving Lee Malvo, who, together with John Muhammad, carried out a series of murders in the US in 2002. In a related trial, Malvo unsuccessfully argued that ‘Muhammad brainwashed Malvo with antiAmerican and racially charged rhetoric, and molded him into a “child soldier” by isolating him from other people, exposing him to violent videos and computer games, and controlling his diet, sleep, personal hygiene and reading material’.92 The jury rejected this ‘insanity as a result of indoctrination defense’. 93 Under Delgado’s proposed approach, the result could be the same: it could be argued that Malvo’s indoctrination was freely chosen, since there is evidence that he did not resist. As the Court of Special Appeals of Maryland puts it, ‘Malvo and Muhammad .

88

ibid See BBC News, ‘Nail Bomber Given Life Sentence’ (accessed 30 June 2014). 90 ibid 91 ibid 92 Mike Ahlers, ‘Jury Convicts Malvo of Sniper Murder’

(accessed 30 June 2014). 93 Steve Eichel, ‘Commonwealth of Virginia v. Lee Boyd Malvo (aka “Beltway Snipers”)’ (accessed 30 June 2014). 89

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became close friends, with Muhammad frequently referring to Malvo as his “son”. Malvo felt that Muhammad “understood” him’.94 Malvo himself stated: ‘I couldn’t say no … I had wanted that level of love and acceptance and consistency for all my life and couldn’t find it. I didn’t have the willpower to say no’.95 In contrast, it could be argued that the Patricia Hearst case would fall within the scope of Delgado’s proposed defence. Hearst, an heiress, was kidnapped in 1974 by a violent left-wing organisation known as the Symbionese Liberation Army, or ‘SLA’. According to the FBI, the SLA ‘wanted nothing less than to incite a guerrilla war against the U.S. government and destroy what they called the “capitalist state”’. 96 Two months after Hearst’s kidnapping, ‘she announced in a taped message that she had repudiated her former lifestyle, and was determined to “stay and fight” beside her captors’.97 Shortly afterwards, she actively participated in an armed SLA bank robbery, using an assault weapon. When subsequently prosecuted for her role in this robbery, 98 she argued that she had been forced to participate in it through a mixture of brainwashing and threats of bodily harm. 99 The jury found her guilty; however, President Carter commuted her sentence after she had served two years in prison, and President Clinton subsequently pardoned her in 2001. Delgado’s analysis is at least superficially attractive. Under his proposed defence, ‘[d]efendants are exculpated … if their behavioral and mentational patterns have been forcibly altered through terror, confinement, physical and psychological debilitation, and assaults on the self’.100 As he says, anybody who has been subjected to these forces is a victim in a sense: for example, Patricia Hearst was kidnapped, and underwent a ‘grueling, distasteful ordeal’.101 Moreover, Delgado is clear 94 Muhammad v State, 934 A.2d 1059 (Md. Ct. Spec. App. 2007) 177 Md. App. 188. 95 Lee Malvo, quoted in Lydia Warren, ‘D.C. Sniper Sidekick Claims he was Sexually Abused by Shooting Mastermind for Two Years Before Killing Spree’ The Daily Mail 25 October 2012. 96 FBI, ‘The Patty Hearst Kidnapping’ (accessed 30 June 2014). 97 United States v. Hearst (n 13). 98 19 criminal charges were filed against her, ibid, 1071. 99 See Emory (n 15) 1349-1350. 100 Richard Delgado, ‘A Response to Professor Dressler’ 63 (1978-1979) Minnesota Law Review 361. 101 Hearst (n 13).

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that his defence would be limited to cases where ‘these forces were applied over extended periods by persons who possessed life-and-death power over their victims and total control of their environment’.102 Thus, the defence ‘would [not] be available to anyone whose acts are influenced, however minimally, by external forces’.103 Whether his analysis is valid seems to turn on the legitimacy of his notion that an individual who has been brainwashed is acting out of character, and lacks the capacity to make meaningful decisions because of the effect of coercive techniques. As he puts it, ‘[i]f an individual is forced to assume states of mind that are utterly inauthentic and foreign to his nature, he should not be punished for the actions that follow as a direct consequence from them’.104 In response to Delgado’s proposal as it relates to US law, Dressler argues that ‘it is logically impossible to frame a coercive persuasion defense that is both consistent with present criminal law and jurisprudential doctrines and is also morally acceptable’.105 As Dressler puts it, ‘[e]ither we reject such a defense, or we revolutionize the criminal law’.106 His claim is that ‘[i]f the law creates … a fiction in some cases by ignoring the intent of the actor because of dismay over the way he came to have it, there is no logical reason to limit such inquiry’.107 His point is premised upon the idea that ‘[a]ll ideas and intents originate outside the individual, in the sense that they are shaped by experiences and environment’. 108 He argues that Delgado’s proposed defence would draw logically indefensible distinctions between defendants. As Dressler puts it: He separates potentially equal cases from one another, so that defendants with arguably similar moral claims are treated unequally. He would excuse a defendant who is the victim of ‘abnormal influences,’ such as physical depletion, prolonged isolation, and interrogation, but would deny the defense to a person who presents some of the same symptoms of choice reduction, but whose symptoms are not the result of abnormal influences.109

102

Delgado (n 100). ibid 104 ibid 362. 105 Joshua Dressler, ‘Professor Delgado’s “Brainwashing” Defense: Courting A Determinist Legal System’ 63 (1978-1979) Minnesota Law Review 335, 337. 106 ibid 107 ibid 108 ibid 343. 109 ibid 358. 103

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This debate between Delgado and Dressler raises the issue of the relevance of character in relation to criminal responsibility. Delgado suggests that there is something special about coercive thought reform that means that D should not be responsible for any actions that directly flow from such coercion, apparently because these actions would be ‘inauthentic and foreign to his nature’.110 The idea here seems to be that D should not be liable where s/he ‘acts out of character’ as a direct result of coercive thought reform; in this sense, Delgado could be interpreted as advocating a version of what might be called a character-based notion of criminal responsibility. 111 Character has been, and still is, relevant in relation to criminal responsibility.112 It is not obvious why the law should draw a distinction between coercive persuasion and other forms of pressures and environmental factors, such as media influence, that may shape ideas and intentions. Delgado claims that his proposed defence is similar to insanity and involuntary intoxication, in that it focuses upon ‘curtailment of the victim’s capacity to choose’113 rather than upon ‘simple choice reduction- a narrowing of the alternatives available to an actor with unimpaired capacity to choose among them’.114 Nonetheless, as Dressler says, Delgado does not explain why the law should draw a distinction between coercive ‘abnormal influences’ and other factors: as Dressler points out, ‘[a]lthough the intensity is absent, there is no reason why longterm malnutrition and its effects, constant economic pressures, and peer influences, cannot wear down the average person more certainly than a cult situation’.115 Accepting Delgado’s line of argument would have major implications, since ‘accepting its basic premises would be a substantial step towards courting a determinist legal system’.116 Thus, it can be argued 110

Delgado (n 100) 362. See also Mark Turner and Nicholas Moran herein at chapter eight. 111 On character based criminal responsibility, see for example, the Law Com DP, 2013 (n 3) para A.19-A.32. 112 See for example, Nicola Lacey, ‘The Resurgence of Character: Criminal Responsibility in the Context of Criminalisation’, in RA Duff and Stuart Green (eds), Philosophical Foundations of Criminal Law (Oxford University Press, 2011) 151. 113 Delgado (n 100) 364. 114 ibid 115 Dressler (n 105) 359. 116 Thomas Nolan, ‘The Indoctrination Defense: From The Korean War to Lee Boyd Malvo’ 11 (2003-2004) Virginia Journal of Social Policy & the Law 435, 457.

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that the Law Commission is correct to conclude that D should not qualify for its proposed new defence where s/he had been indoctrinated but had no recognised medical condition. In the words of Nolan, commenting on US law but making a point that is equally valid in relation to English law: Creating an independent affirmative defense for indoctrination is simply not possible without huge reforms to our general concept of criminal responsibility. Given that there is not even a substantial minority acceptance of indoctrination within the psychiatric community, now is certainly not the time for such a drastic reform.117

Indeed, it can be argued that the Law Commission went too far in proposing that the ‘wrongfulness’ limb should be expanded to potentially include a defendant who realised that his or her conduct was against the law. Hathaway claims that ‘[p]erhaps the major reason why it can be argued that the law [dealing with the “wrongfulness” limb] as it stands is correct is that it leads to certainty, with the question of illegality being black and white with no shades of grey’. 118 This point has much to commend it; the current interpretation of ‘wrongfulness’ does indeed lead to certainty, whereas the meaning of this same word under the Law Commission’s proposals is ambiguous.

Conclusions The existing English law on the insanity defence has long been the subject of criticism. However, this does not mean that there is a consensus on how to improve the law. The Law Commission agrees with McAuley: If the [M’Naghten] Rules did not exist, it would be necessary to invent something very like them. This follows from the inescapable fact that serious mental illness is a cognitive failing that radically affects an agent’s capacity to act rationally, and that there is a strong moral impulse to exempt those who … are manifestly incapable of acting rationally from criminal responsibility. The problem is therefore to fashion a criterion of insanity that accords with the common perception of mental illness as a 117

ibid 457-458. Hathaway (n 1) 316. It should be noted here that Hathaway nonetheless concludes ‘that there is a strong argument to allow a moral element to be developed within the ‘wrongness’ limb of the defence to enable this part of the defence to be interpreted more broadly’ (ibid). 118

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pervasive defect of reason, and that enables juries to acquit where it seems morally appropriate to do so.119

We also agree with McAuley and the Law Commission on this point about the need for a general defence in this context. The issue is whether the Law Commission’s proposals would improve the law. Ashworth is certainly correct to say that the discussion paper containing them is stimulating, 120 but the Law Commission’s proposals regarding the ‘wrongfulness’ limb of their medical condition defence are open to criticism. The proposals lack clarity, and would cause practical problems in terms of interpretation and consistency if they were to be implemented in the absence of further explanation. This is not an insurmountable issue. Perhaps more significant is the issue of whether ‘wrongfulness’ should mean anything other than legally wrong; it is not obvious that this is the case, if the central issue is whether D completely lacked the ability to conform to the law. The Law Commission states that ‘[t]he defendant’s lack of capacity is at the heart of our main proposal and this is its principal strength’. 121 The Commission’s central provisional proposal is ‘that an accused should not be held criminally responsible where he or she completely lacked the ability to conform to the law, due to a recognised medical condition’. 122 Its proposed definition of wrongfulness would arguably shift the focus towards whether D lacked the capacity to conform to moral, rather than legal, standards. We therefore submit that the ‘wrongfulness’ limb of the proposals needs clarification since it appears to conflict with the Law Commission’s central approach, and, according to the arguments we have made above, the existing delusion rule has at least as much merit. The ‘hard cases’ referred to in this chapter could be resolved without over-extending the existing insanity defence in an attempt to encompass them; indeed some would already be able to argue the partial defence of diminished responsibility. The Law Commission argues that the insanity defence concerns a total lack of capacity, but arguably defines the wrongfulness limb in a manner which includes those with partial capacity since they understand the illegality of their actions. 119

Finbarr McAuley, Insanity, Psychiatry and Criminal Responsibility (Round Hall Ltd 1993) 25-26, quoted with approval by the Law Com DP, 2013 (n3) para 2.33. 120 Andrew Ashworth, ‘Insanity and Automatism: A Discussion Paper’ [2013] Criminal Law Review 787, 788. 121 Law Com DP, 2013 (n 3) para 3.2. 122 ibid para 3.1.

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Those who kill while suffering from a total or partial lack of mental capacity may already plead the statutory defence of diminished responsibility, even when their mental condition leads them to believe that their actions are morally correct. Hence we propose that the existing partial defence of diminished responsibility 123 should become a general partial defence to any charge, leading to a reduction in sentencing and/or medical treatment for those whose abnormal mental functioning substantially reduces their responsibility for the crime they commit, whether they are brainwashed or delusional, and regardless of whether they realise that they are committing a crime.

123

For a detailed discussion of the diminished responsibility defence see chapters 11 - 13 herein. See also, Alan Reed and Michael Bohlander, Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, 2011).

CHAPTER FOUR PRIZING OPEN THE DOOR TO JUSTICE: REFORM OF THE ‘WRONGFULNESS LIMB’ OF THE M’NAGHTEN RULES KEITH J.B. RIX

The law in the matter of insanity is not incapable of being so interpreted as to do terrible injustice Lord Coleridge CJ 18881

Introduction This chapter deals with the meaning of ‘wrongfulness’ in the ‘wrongfulness limb’ of the M’Naghten Rules (‘the Rules’).2 It begins with an analysis of the judgments which have established that in England and Wales this limb has been held to be limited to those who lack awareness that what they are doing is legally wrong and does not apply to those who lack awareness that what they are doing is morally wrong. Criticisms of this interpretation are set out. This interpretation is then contrasted with the evidence that psychiatrists in England and Wales interpret wrongfulness as referring to moral as well as legal wrongfulness. Examples are used to illustrate the operation of the limb in practice. The scene is thereby set for a brief account of the approaches of other jurisdictions. This examination of comparative law is then used as background to the introduction of the Law Commission’s proposals for

1 2

Quoted by Edward Robinson, Just Murder (Lincolns Prager 1947). M’Naghten’s Case (1843) 10 Cl & Fin 210.

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reform of the insanity defence in England and Wales3 and suggestions for a way forward pending reform. The ‘wrongfulness limb’ of the common law defence of insanity is embodied in the direction to be given to the jury in insanity cases based on the responses of the judges to the third question put to them by the House of Lords in M’Naghten’s Case: 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 accused party 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 he was doing what was wrong.4

Whereas in England and Wales the leading decisions in Codère5 and Windle 6 have established that wrongfulness refers to legal rather than moral wrongfulness, and subsequently confirmed in Johnson,7 not only do other jurisdictions interpret ‘wrong’ to mean morally wrong but the little research carried out into the application of the insanity defence in England and Wales suggests that in practice psychiatrists in their expert evidence pay little heed to the distinction between legal and moral wrongness and in some cases have supported what have been successful pleas of insanity on the basis of lack of knowledge of moral wrongfulness. So the first issue is what form of wrongfulness is meant. There is a second issue. It is the nature of the knowledge of the wrongfulness. Yannoulidis has further drawn attention to the distinction that exists between actual knowledge and capacity for such knowledge and illustrated it by identifying the contrasting approaches taken in the Australian jurisdictions.8 These issues are discussed as the basis for an argument that in England and Wales the law on insanity is confused, unfair and ineffective, and therefore in need of reform. The reforms in other jurisdictions are used in order to distill the essential ingredients of a just insanity defence. This 3 Law Commission, Criminal Liability: Insanity and Automatism: A Discussion Paper (Law Com DP, 2013). 4 M’Naghten (n 2) [emphasis added]. 5 (1917) 12 Cr App R 21. 6 [1952] 2 QB 826. 7 [2007] EWCA Crim 1978. 8 Steven Yannoulidis, Mental State Defences in Criminal Law (Ashgate 2012) 1922.

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discussion then informs a consideration of the proposed reform of the law of insanity in England and Wales.

The Meaning of Wrong Strict Law In the case of Codère,9 a Canadian infantry lieutenant appealed against his conviction of the murder of a fellow soldier on the Isle of Wight during World War I. The trial judge told the jury that ‘wrong’ meant ‘contrary to the law’. One of the grounds for appeal was that the jury should have been told that they must find him insane unless they came to the conclusion that he knew that the act was morally wrong. The morality argument was put not only in relation to the wrongfulness limb but also in relation to the ‘nature and quality’ limb, it being argued that ‘nature’ refers to the physical aspect of the act and ‘quality’ to its moral aspect. It was also submitted that ‘know’ must mean, or include, the power of forming a rational judgment on the quality of the act. The Lord Chief Justice said the judges in M’Naghten were only dealing with the physical character of the act and were not intending to distinguish between the physical and moral aspects of the act. He said that the question of the distinction between moral and legal wrong ‘opens wide doors’ and then drew attention to the judges’ answer in the form of the following test as set out in M’Naghten’s Case: If the accused was conscious that the act was one which he ought not to do, and if the act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong.

Applying this test, the court was in no doubt that the appellant knew that the act was wrong in law, therefore he was doing an act which he was conscious that he ought not to do, and as it was against the law, it was punishable by law. There was an attempt to open the door wider only a few years later. In True, counsel for the appellant, who had been convicted of the murder of a prostitute, submitted that study of a number of cases between 1881 and 9

Codère (n 5).

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1921 indicated that the Rules had been relaxed.10 But Lord Hewart CJ did not agree, commenting that, ‘when one looks at the facts of the cases relied upon, it appears nowhere that the proposed extension of the rule has been acted upon and approved’ and he added, ‘It is enough to say that in the view of this Court there is no foundation for the suggestion that the rule derived from M’Naghten’s Case has been in any sense relaxed.’ As will become clear, it is of some significance that the first case upon which True’s counsel relied was Davis, where Stephen J gave the following direction: As I understand the law, any disease which so disturbs the mind that you cannot think calmly and rationally of all the different reasons to which we refer in considering the rightness or wrongness of an action – any disease which so disturbs the mind that you cannot perform that duty with some moderate degree of calmness and reason may be fairly said to prevent a man from knowing that what he did was wrong.11

The same strict interpretation was applied in Windle, where the accused administered a fatal dose of aspirin to his suicidal wife. 12 He indicated that he knew that what he did was legally wrong when he commented, ‘I suppose I’ll hang for this.’ His appeal against conviction was on the basis that ‘wrong’ meant ‘morally wrong’. This argument was rejected by Lord Goddard CJ: The test must be whether an act is contrary to law … In the opinion of the court, there is no doubt that the word ‘wrong’ in the McNaughton13 Rules means contrary to law, and does not have the same vague meaning which 10

(1922) 16 Cr App R 164. (1881) 14 Cox CC 563. 12 Windle (n 6). 13 M’Naghten is the customary spelling in law reports but of all possible spellings it is probably the least correct (Bernard L Diamond, ‘On the spelling of Daniel M’Naghten’s name’, in Donald J West and Alexander Walk (eds), Daniel McNaughton: His Trial and the Aftermath (Headley Brothers 1977)). Original research by Moran, including discovery of a hitherto unknown second signature of McNaughtan and several signatures of his father, provides convincing evidence that the correct spelling is McNaughtan (Richard Moran, Knowing Right from Wrong: The Insanity Defense of Daniel McNaughtan (Free Press 1981)). In this chapter the form M’Naghten is used in conformity with the convention in law reports in England and the USA except where, as here, different spelling has been used in the original source of the quotation. 11

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may vary according to the opinions of different persons as to whether a particular act might not be justified.

This ruling has since been followed in Johnson.14 The accused suffered from schizophrenia which manifested in delusions about interference from ‘firewalls’ which one of the psychiatric experts considered provided the moral justification for stabbing a neighbour. However, because it was agreed that he knew that this was legally wrong, the trial judge did not allow the defence of insanity to go to the jury. His appeal was on the grounds that in this respect the trial judge erred. The Court of Appeal considered not only the ruling in Windle 15 and the observations of a number of legal commentators but also acknowledged ‘the highly persuasive ruling’ in the Australian case of Stapleton.16 Nevertheless, the Court affirmed the ruling of Lord Reading CJ in Windle and added, ‘… the strict position remains as stated in Windle’.17 The Court did invite counsel to formulate a question or questions of public importance which it could certify so that the House of Lords could decide if it wanted to revisit the Rules. However, leave to appeal was subsequently refused.

But Not Above Criticism Criticism of the wrongfulness limb can be traced back to as early as 1864. A resolution was passed at a meeting of the Association of Medical Officers of Hospitals and Asylums for the Insane stating: That so much of the legal test of the mental condition of the alleged criminal lunatic as renders him a responsible agent, because he knows the difference between right and wrong, is inconsistent with the fact well known to every member of this meeting, that the power of distinguishing between right and wrong exists very frequently among those who are undoubtedly insane, and is often associated with dangerous and uncontrollable delusions.18

14

[2007] EWCA Crim 1978. Windle (n 6). 16 (1952) 86 CLR 358. 17 Windle (n 6). 18 Francis A Whitlock, Criminal Responsibility and Mental Illness (Butterworths 1963) 37. 15

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A related point was made by the psychiatrist, Maudsley, in 1874: … it is obvious that the knowledge of right and wrong is different from the knowledge of an act being contrary to the law of the land; and it is certain that an insane person may do an act which he knows to be contrary to law because by reason of his insanity he believes it to be right because … he is a law unto himself and deems it a duty to do it, perhaps with a view to producing some public benefit.19

This view has been endorsed by Whitlock: It seems that knowing an act to be wrong is one type of experience to a normal person but a very different matter to those who are mentally ill. For not only may the appropriate affective component of knowledge be absent but … such a person may well feel himself to be above the law, or that his act was justified solely on the grounds that he was redressing an injury which his psychosis had induced him to believe had occurred. In such a person it is highly unlikely that, at the time of the offence, he was swayed by the ordinary considerations of morality or legal right and wrong which would influence a more normal man.20

Significant judicial criticism came in the US in 1954 when Judge Bazelon stated, ‘[w]e find that as an exclusive criterion the right-wrong test is inadequate in that (a) it does not take sufficient account of psychic realities and scientific knowledge, and (b) it is based on one symptom and so cannot be validly applied in all circumstances.21 The Butler Committee was critical of the wrongfulness test, stating, ‘[k]nowledge of the law is hardly an appropriate test in which to base ascription of responsibility to the mentally disordered. It is a very narrow ground of exemption since even persons who are grossly disturbed generally know that murder and arson are crimes.’22 Gledhill is critical of the reasoning behind the judgment in Windle23 noting that Lord Goddard CJ justified his decision on the basis that, ‘[c]ourts of law can only distinguish between that which is in accordance with the law and that which is contrary to law’, adding, ‘[t]he law cannot 19

Henry Maudsley, Responsibility in Mental Disease (Henry S King 1874). Whitlock (n 18) 42. 21 Durham v US 214 F 2d 847, 874-5 (DC Cir 1954). 22 Home Office and Department of Health and Social Security, Report of the Committee on Mentally Abnormal Offenders (Cmd. 6244, 1975) para 18.8. 23 Windle (n 6). 20

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embark on the question, and it would be an unfortunate thing if it were left to juries to consider whether some act was morally right or wrong.’24 Yet there are jurisdictions that have not only introduced a test of knowledge of moral wrongfulness through the common law but in some jurisdictions the test has been codified. It may be added that there is evidence of ambiguity in the way that the Rules deal with the matter of wrongfulness. In their answer to the first question, concerning partial delusions, what are called ‘The Judges’ Replies’ (and usually quoted as ‘the M’Naghten Rules’) refer to how someone would be open to conviction if, when redressing a grievance attributable to partial delusions, they ‘knew at the time of committing such a crime that he was acting contrary to the law of the land.’25 However Lord Tindal CJ, in his detailed response on the part of the majority of the judges, sets out this answer differently and instead of the words ‘contrary to the law of the land’ uses the words ‘contrary to law, by which expression we understand your Lordships to mean the law of the land.’ Yet there is nothing in the questions put to the judges which refers to ‘law of the land’ and the only reference is to the accused’s knowledge of the ‘law’ in an example used to illustrate the issue in the first question: What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons; as, for instance, where at the time of the commission of the alleged crime, the accused knew that he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?26

That their Lordships were referring only to ‘the law of the land’ could well be a misunderstanding or an unfounded assumption on the part of the judges. Closer examination of the Rules suggests anyway that the judges probably did have in mind moral as well as legal wrongfulness. This is because, in the proposed jury direction, after the reference to the accused not knowing that what he was doing was ‘wrong’, they add the following, ‘[i]f the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he 24

Kris Gledhill, Defending Mentally Disordered Persons (LAG 2012) para 12.58. M’Naghten’s Case (n 2). 26 [Emphasis added]. 25

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is punishable’. The former suggests moral wrongfulness and the latter suggests legal wrongfulness. Walker, commenting on this, states, ‘[t]he clear implication is that if the act was illegal, but he was not conscious of its moral wrongness, he is not punishable’ and referring to the reliance on this passage by the Court in Codère 27 he observes that the court ‘interpreted it in a perverse sense’.28

Proceed with Caution? In that the Rules came into existence not as a direct result of judicial proceedings, such as an appeal to a higher court or even at a trial at first instance, where the adversarial process allows for argument and counterargument, but as a result of the House of Lords putting a series of questions to a panel of judges, and given that the Rules have never been put on a statutory basis, it seems all the more surprising that the Court of Appeal should be so reluctant to countenance or allow their development as has happened in other jurisdictions. This point was recognised by the one dissenting judge in M’Naghten. 29 Maule J referred to three great difficulties in answering the questions. The second was that he had ‘heard no argument at your Lordship’s bar or elsewhere on the subject of these questions, the want of which I feel the more the greater is the number and extent of questions which might be raised in argument’. Having regard to the ambiguity in the Rules and the evidence that there is ‘extensive case-law concerning the defence of insanity prior to and at the time of the trial of M’Naughten (which) established convincingly that it was morality and not legality which lay as a concept behind the judges’ use of ‘wrong’ in the M’Naughten rules’ 30 , it is surprising that the certainty with which the Lord Chief Justice in Windle31 held that ‘the word “wrong” in the M’Naghten Rules means contrary to law’ was not questioned in Johnson.32

27

Codère (n 5). Nigel Walker, ‘The Rules in Action’, in Donald J West and Alexander Walk (eds), Daniel McNaughton: His Trial and Aftermath (Headley Brothers 1977) 129-152. 29 M’Naghten’s Case (n 2). 30 Norval Morris, ‘“Wrong” in the M’Naghten Rules’, (1953) Modern Law Review, 435. 31 Windle (n 6). 32 Johnson (n 14). 28

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In Johnson, Latham LJ commented that, having regard to how they came about, they are ‘rules which have to be approached with some caution’33 but whereas an amber light may cause some to travellers to stop, the progress of justice surely also requires a willingness for travellers to move forward, albeit with caution.

Liberal and Relaxed Application Notwithstanding the strict position of the Court of Appeal, as confirmed in Johnson, and indeed as Latham LJ observed in that very case, there is evidence that the courts of first instance have been prepared to approach the wrongfulness issue ‘on a more relaxed basis’.34 This is also reflected in the responses to the Law Commission’s Scoping Paper which indicated ‘little evidence of a practical problem in relation to the operation of the defence’ in that ‘legal and medical practitioners said that while academic criticisms of the defences are justified, they work round the problems’.35 Some of the evidence to which Latham LJ was referring was the work of Mackay36 which is one of three empirical studies by Mackay and his colleagues of the operation of the insanity defence in English law.37 But even in the nineteenth century the courts of first instance did not restrict the meaning of wrongfulness to legal wrongfulness. In Townley, albeit that the insanity defence was raised unsuccessfully, the trial judge made no reference to the Rules and referred to an act that was ‘contrary to the law of God and punishable by the law of the land’.38 That the courts of first instance should so proceed is not surprising in that in 1883 Sir James Fitzjames Stephen, in his History of the Criminal Law of England, wrote, ‘The word ‘wrong’ is ambiguous … It may mean either “illegal” or “morally wrong” for there may be such a thing as illegality not involving

33

ibid. ibid. 35 Law Com DP, 2013 (n 3) para 1.10. 36 Gerry Kearns and Ronnie Mackay, ‘More Facts about the Insanity Defence’ [1999] Criminal Law Review 714. 37 Ibid; Ronnie Mackay, ‘Fact and Fiction about the Insanity Defence’ [1990] Criminal Law Review 247; Ronnie Mackay, Barry Mitchell, Leonie Howe, ‘Yet More Facts about the Insanity Defence’ [2006] Criminal Law Review 399. 38 (1863) 3 F & F 839. 34

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moral guilt.’ 39 Indeed, as Stephen J, in 1881 he had tried the case of Davis,40 which was the first of the seven cases relied upon in True41 to argue, albeit unconvincingly, that the Rules had been relaxed. Mackay’s initial research concerned the small number of 49 successful insanity defences in England and Wales between 1975 and 1988.42 The wrongfulness limb was clearly identified as the relevant basis of the defence in 28 cases. In 23 of these it was the only limb identified and in the other 5 cases there was reliance on both limbs. However, Mackay observed that in many of these cases, there seemed to have been little attempt to distinguish between lack of knowledge of legal and moral wrongness, indeed so much so that he concluded that ‘the general impression gained from reading the documentation in these cases was that the wrongness issue was being treated in a liberal fashion by all concerned, rather than in the strict manner regularly depicted by legal commentators’. There were 16 cases where the limb on which the successful defence was based could not be identified. In 11 of these cases the psychiatric reports were such that ‘the Rules could be regarded as having been considered by implication’ in that, for example, lack of intent attributable to mental illness and psychosis were identified as the basis of the defence. When Mackay and his colleagues43 extended their analysis up to 2001 and studied the 100 psychiatric reports where reliance was on the wrongfulness limb, they found that 28 made some reference to knowledge of legal wrongness, four to both forms of wrongness and 68 to moral or unspecified wrongness. From the perspective of an expert psychiatric witness, this can only be regarded as highly unsatisfactory. In some cases it appears that the defence of insanity was supported without any consideration of the relevant test and, where it was considered, it was not applied according to legal precedent. It is also of interest how much more frequently schizophrenia was the basis of a successful insanity defence, about half of the total sample, compared to hypomania, which accounted for less than 4% of the sample,

39 James Fitzjames Stephen, History of the Criminal Law of England, vol 2 (1st edn, Macmillan 1883) 167. 40 Davis (n 11). 41 True (n 10). 42 Mackay (n 37). 43 Mackay, Mitchell and Howe (n 37)

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just two cases.44 This author once supported the insanity defence in a case of hypomania. The offence was committed when the defendant was overactive, in his thinking he flitted illogically from one topic to another, he had a grandiose attitude to the law and he acted in a disinhibited way that involved disregarding the law and not properly thinking about it. The defence was unsuccessful. The prosecution called a psychiatrist whose evidence was that, notwithstanding his hypomania, he knew that what he was doing was against the law. Mackay gives two typical examples of the manner in which the wrongfulness limb was utilised.45 Scenario A: A 22 year old male attempted to kill his parents because he believed that they were to be tortured and that he must kill them in order that they would die in a humane way. Two psychiatrists stated that while he knew the nature and quality of the act of stabbing his parents, he did not know that what he was doing was wrong. One of the psychiatrists gave the following description: ‘His mind was plagued with delusional perceptions which confused his rational thinking to the extent that the wrongness of his act would not have been a consideration.’ Scenario B: The defendant believed the devil was in his daughter and killed her by stabbing her over 150 times with a pair of scissors. He then proceeded to gouge out her eyes. One of the examining psychiatrists stated: ‘I consider that at the time he killed his daughter he was aware of the nature and quality of his acts but believed that he was right and that therefore it would be appropriate to plead not guilty by reason of insanity.’

A third example, probably one of the cases analysed by Mackay, has been reported elsewhere.46 Scenario C: The defendant, whose first name was Leo, believed that he was ‘Leo the Lion of Judah’, that he was second only to God and that God’s law required him to kill his next door neighbour for refusing to hand him the keys to Jerusalem. Leo believed that this refusal gave him a legal right to kill him, notwithstanding that this was against the law of the land.

Scenario D: is an example of a case in which it was concluded that the wrongfulness test was not satisfied.47 44

Kearns and Mackay (n 36). Mackay, 'Fact and Fiction About the Insanity Defence' (n 37). 46 Keith JB Rix, Expert Psychiatric Evidence (RCPsych Publications 2011) 91. 45

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Chapter Four Scenario D: A hitherto happily married man, who was being treated with the hormone thyroxine as a treatment for thyroid underactivity became increasingly suspicious over several weeks. He believed that others were watching him and checking up on his movements. During the night before the offence, he woke his wife several times expressing his conviction that his medication had been tampered with and accusing her of trying to poison him. He believed that everything was monitored by the Department of Social Security and that his wife was a party to the surveillance. He said that people had been whispering and talking about him. He went on to stab his wife, attempt to strangle her and punch her. When arrested, he remarked: I’m going to die. Tomorrow I’m going out of the country. Cos I’m immigrant they’re going to inject me. Because I’m going to die I wanted my wife to be in heaven with me. I’ve stabbed her because I wanted her to be there when I get there.

When interviewed by the police, he admitted stabbing his wife with the intention of killing her. Expert medical opinion was in agreement to the effect that he had become psychotic as a result of lack of compliance with his thyroxine therapy. His psychosis resolved with thyroxine treatment. Scenario E is an example of a case in which the defendant was convicted of manslaughter on the grounds of diminished responsibility48 but the case nevertheless raises, and perhaps raised, the issue of an insanity defence. Scenario E: A man strangled his mother and son after telling his family members that, “There’s going to be a revolution”. When interviewed by the police, he said that he believed that the world was going to end on the day on which he killed his victims and he said that his motive was to spare them this ordeal. He was found not guilty of murder but guilty of manslaughter on the grounds of diminished responsibility.

These five cases can be used to illustrate some of the difficulties that face psychiatrists in applying the wrongfulness test. In Scenario A, the reason for concluding that the accused did not know that he was doing wrong is not at all clear. If he knew that it was against the law to kill his parents, the fact that he did not consider the wrongness of his act should not have been a defence.

47

Rajan Nathan, Keith JB Rix, John Kent, ‘Myxoedematous Madness and Grievous Bodily Harm’ (1997) 4 Journal of Clinical Forensic Medicine 85. 48 R (PS) v Responsible Medical Officer [2003] EWHC 2335.

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Scenario B concerns an accused who did consider the wrongfulness of his acts but concluded that what he was doing was right. This would therefore appear to be a case where the successful defence was based on moral rather than legal wrongfulness. Scenario C, from the author’s own practice, illustrates a more subtle distinction between the law of the land and an impliedly superior law, in this case, ‘God’s law’. Insofar as the accused knew that what he was doing was against the law of the land, he did not have an insanity defence. He was therefore fortunate that his defence was accepted. On a strict application of the law, in order to succeed, he would have needed an additional delusional belief that the law of the land as to homicide was wrong, had been repealed or had been superseded by the law to which he believed that he was subject. This author did not support an insanity defence in the case of the subject in Scenario D who became psychotic and was charged with the attempted murder of his wife because it would not have been possible to persuade a jury that he did not know that attempted murder was legally wrong. Indeed, it was acknowledged that he was ‘in the same position as a man who attempts to kill his wife as a prelude to killing himself at a time when she is trying to poison him, tampering with his medication, colluding with his investigation by the [Department of Social Security] and trying to get information about his bank account’. However, when the facts of this case are compared with some of the successful cases reported by Mackay49 it appears that this may have been a case in which the insanity defence would have been supported by other psychiatrists and furthermore accepted by the court. Scenario E is typical of many cases of homicide perpetrated by people with psychosis, where, regardless of the likely success of a defence of insanity, the partial defence of diminished responsibility manslaughter is more likely to be successful. If the test was moral wrongfulness, the accused might have succeeded in that his intention was to kill his mother and son and thereby save them from experiencing the ordeal of the end of the world. If the test was legal wrongness this would not have been sufficient to afford him an insanity defence. None of these cases illustrates such a clear lack of knowledge of legal wrong as would satisfy the strict interpretation of the law by the Court of Appeal.

49

Mackay, ' Fact and Fiction About the Insanity Defence' (n 37).

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So the strict legal position seems to be this. An accused who believes that what he is doing is right, because, for example, he believes that he is ‘redressing or revenging some supposed grievance or wrong’ or ‘producing some public benefit’ but knows that what he is doing is wrong according to the law of the land will not have a defence of insanity. An accused who believes that what he is doing is right for the same reasons but also believes that he is acting in accordance with a superior law arguably does not have a defence of insanity. An accused who believes that what he is doing is right for the same reasons and also believes that the law of the land has been repealed will have a defence. To the psychiatrist little or no significance attaches to these subtle distinctions and they have no bearing on future dangerousness. But they are critical distinctions when a successful defence of insanity hangs in the balance and a person of good character is at risk of being criminalised and dealt with as an offender. On the other hand, what is happening in practice is this. Psychiatrists are supporting the defence on the basis of the accused persons believing that their actions are morally justifiable and disregarding knowledge of legal wrongfulness. Put another way, ‘if psychiatrists do apply a different test from that which the law requires it will be either because they are ignorant of the law or because they are bending it’.50 The courts of first instance in turn, usually through the verdict of a jury but occasionally on the decision of the judge alone, are then accepting defences which would not be upheld by the Court of Appeal. As Kearns and Mackay have observed, ‘it may be argued that psychiatrists are in many respects adopting a common sense or folk psychology approach and that the courts by accepting this interpretation are, in reality expanding the scope of the M’Naghten Rules’.51 While this may be regarded as a welcome expansion of the law, in that it affords a psychiatric defence to people who would not otherwise benefit from this narrowly-defined defence, it is unsatisfactory that this benefit depends on psychiatrists and the courts of first instance side-stepping the law as laid down by the appellate courts. Indeed, if the psychiatric evidence is in the form of common sense, it is arguable that psychiatric evidence is redundant. Experts have a role to play when a matter is outside the knowledge of ordinary people but if the 50

Dr. James Reed responding to the Law Com Scoping Paper, 'Insanity and Automatism' (Law Com SP, 2012) (B.78). 51 Kearns and Mackay (n 36).

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matter is one of common sense it is surely a matter for the jury unassisted, or unhindered, by psychiatrists. As in Scenario D and as in the case of Johnson,52 psychiatrists and courts respectively that apply the law strictly can deny the defence in cases which are really no different to those in which it has been successful. As Ormerod observed in the case of Johnson, ‘[i]t appears that the appellant in this case may have been unfortunate to have had legal and medical practitioners who applied the strict letter of the law.’53

The Meaning of Knowledge Although the nature of the accused’s knowledge of the wrongness of their act was raised in Codère and it was submitted unsuccessfully that ‘know’ must mean, or include, the power of forming a rational judgement on the quality of the act, 54 the appellate courts do not appear to have addressed what is meant by an accused person’s knowledge of the wrongness of their act. A very early explanation comes from Lord Tindal CJ himself who, only a year after giving the majority’s answers in M’Naghten’s Case, said, ‘It must be shown that the prisoner had no competent use of his understanding so as to know that he was doing a wrong thing in the particular act in question.’55 Yannoulidis regards the nature of an accused’s knowledge as referring to ‘the cognitive processes required on the part of an agent in order for him or her to know that an act is wrong’.56 In some Australian jurisdictions, following the case of Porter,57 the courts are now assisted by a statutory definition of the nature of knowledge of wrongfulness. For example, in Victoria, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 refers to the ability to ‘reason with a moderate degree of sense and composure about whether the conduct … was wrong’. The language here, not surprisingly, is remarkably similar to that used by Stephen J in Davis in 1881.58

52

Johnson (n 14). David Ormerod, ‘Insanity: knowledge of right and wrong – “wrong” meaning against the law’ [2008] Criminal Law Review 132. 54 Codère (n 5). 55 Vaughan (1844) 1 Cox CC 80 [emphasis added]. 56 Yannoulidis (n 8) 19. 57 (1933) 55 CLR 182. 58 Davis (n 11). 53

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It is likely that in all five examples here there was some lack of composure at the time the acts were contemplated and also some inability to reason with a moderate degree of sense.

A Sorry State of Affairs So the position as to the operation of the wrongfulness limb in England and Wales is as follows. Far from being clear, the law is ambiguous and open to perverse interpretation. Far from being fair, it is unfair; the success of the defence depends more on clumsy, woolly and superficial psychiatric expertise or on psychiatrists who are ignorant of, or prepared to bend, the law and on relaxed, liberal and creative or generous interpretation of the law by the lawyers; but the defence will be denied to those in whose cases the psychiatric experts apply the legal test as it is meant to be applied or if appeal is made to the higher courts. Far from being effective, as the still small number of successful defences indicates, if the law is intended to avoid the criminalisation of mentally disordered people who, but for their mental disorder, would not be convicted of criminal offences, it is clearly ineffective. Even in many of the tiny minority of cases in which it is effective, on strict legal grounds it ought not to be. This is a sorry state of affairs.

MಬNaghten Abroad In England and Wales this area of the law has stood still since 1843 and indeed become ossified. In other parts of the world, it has developed. England and Wales have much to learn from developments in other jurisdictions.

Australia and New Zealand It was in 1933 that, in Porter, the Australian courts began to favour a test of moral rather than legal wrongfulness: The question is whether he was able to appreciate the wrongness of the particular act he was doing. If … he could not think rationally of the reasons which to ordinary people make that act right or wrong … What is meant by "wrong”? Wrong is wrong having regard to the everyday standards of reasonable people …. [T]he main question … is whether … the man you are trying … was disabled from knowing that it was a wrong act to commit in the sense that a body of reasonable men understand right

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and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness.59

As well as allowing reliance on moral wrongfulness, although there is no explicit reference to the Rules, the judge’s direction to the jury also seems to develop what is meant by the word ‘know’ in the Rules. The question is put not in terms of ‘knowing’ but ‘appreciating’. It involves being able to think rationally about, and consider with some composure and reason, the wrongfulness of what he is doing. The reference to ‘composure’ introduces a means of taking into account the emotional (affective) state of the accused and its interaction with the cognitive processes, or their emotional concomitants, thus meeting the long and widely held criticism that the rules ignore the affective disturbances that occur in mental disorder. This meaning of ‘know’ is now also codified in several Australian jurisdictions: the Commonwealth, the Australian Capital Territory, the Northern Territory and Victoria. Shortly after this, in Sodeman, the High Court not only confirmed that ‘wrong’ meant ‘morally wrong’ but did so by reference to the Rules.60 Later in Stapleton61 the High Court gave what has been described as ‘a complete and convincing theoretical justification for the direction … to the jury’62 in Porter,63 and a direction which has been described as ‘a model of precision (that) deserves more attention than it has yet received from the profession outside Australia’.64 In Queensland, Western Australia and Tasmania, where the criminal codes are based on the Griffith Code,65 the knowledge requirement calls for a capacity-based interpretation. In Queensland 66 and Western Australia67 it has to be demonstrated that the accused lacked the ‘capacity to know’ that they ‘ought not to do the act or make the omission’. The

59

(1933) 55 CLR 182. (1936) 55 CLR 192. 61 Stapleton (n 16). 62 Norval Morris (n 30). 63 Porter (n 57). 64 Norval Morris (n 30). 65 Largely the work of Sir Samuel Walker Griffith when he was Lord Chief Justice of Queensland. 66 Criminal Code (Qld) s 27(1). 67 Criminal Code (WA) s 27. 60

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comparable terminology in Tasmania is ‘incapable of knowing that the act or omission was one that he or she ought not to do or make’.68 Yannoulidis therefore makes a distinction between the accused’s actual knowledge and their capacity for such knowledge.69 In that a person may possess the capacity to know the wrongfulness of their act but not be able to exercise it at the material time, he suggests that a capacity-based test restricts the insanity defence to a greater extent than a test based on actual knowledge. That it is not more restrictive than it would otherwise be depends, it has been argued,70 on courts ignoring its restrictive narrowness. In New Zealand the wrongfulness test has been codified in the Crimes Act 1961 in the terms ‘incapable of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong’. 71 This appears to be a normative test but in practice it is interpreted as a subjective test, ‘the question being whether the accused did not regard the act as wrong for him or her to do, even if he or she knew it was contrary to public standards of morality.’ 72 So again justice depends on a liberal interpretation of the statute.

Canada Whereas the Supreme Court of Canada had previously restricted the meaning of ‘wrong’ to ‘legally wrong’ 73 , in Chaulk it also has now rejected Windle.74 Expressing the majority judgment, Lamer CJ held: It is plain to me that the term ‘wrong’ … must mean more than simply ‘legally wrong’. In considering the capacity of a person to know whether an act is one that he ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but … is at the same time incapable of knowing that it is morally wrong according to the moral standards of society. This would be the case for example, if the person suffered from a disease of the mind to such a degree as to know that

68

Criminal Code (Tas) s 16(1). Yannoulidis (n 8) 20. 70 Stanley Yeo, ‘The Insanity Defence in the Criminal Laws of the Commonwealth of Nations’ [2008] Singapore Journal of Legal Studies 241. 71 cp.23(2)(b) 72 Yannoulidis (n 8) 18, (n 54). 73 Schwartz v R (1976) 29 CCC (2d) 1. 74 Windle (n 6). 69

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it is legally wrong to kill but … kills in the belief that it is in response to a divine order and therefore not morally wrong.75

In Oommen the Supreme Court has also ruled on the meaning of what it is to ‘know’ that an act is wrong: [T]he inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act …. …. [T]he real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.76

As Mackay has observed, this is an important judgment as it ‘reflects more accurately the true nature of the distorted thought processes of those whose psychiatric disorders impact on their capacity to know right from wrong’.77

The United States Since 1954, when almost all of the US states, apart from New Hampshire, applied the Rules, there have been a number of significant developments. One was the introduction of the Durham or ‘product’ test with its origins in State of New Hampshire v Pike, where it was held that ‘if the homicide was the offspring or product of mental disease in the defendant, he was not guilty by reason of insanity’.78 It was introduced in the District of Columbia in Durham 79 but, then abandoned 18 years later. Judge Bazelon, whose criticisms of the Rules have been mentioned above, gave as one of the reasons its failure to take the issue of criminal responsibility 75

[1990] 2 CR (4th) 1. [1990] 3 SCR 1303 [emphasis added]. 77 Ronnie Mackay, ‘Righting the wrong? – some observations on the second limb of the M’Naghten Rules’ [2009] Criminal Law Review 80. 78 49 NH 399, 442 (1869). 79 Durham (n 21). 76

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away from the experts, commenting, ‘[p]sychiatrists continued to testify to the naked conclusion instead of providing information about the accused so that the jury could render the ultimate moral judgment about blameworthiness.’80 The wish to entrust the jury with deciding on the issue of moral wrongfulness is in stark contrast to Lord Goddard CJ’s declaration in Windle that it would be an unfortunate thing if this issue was left to juries to consider.81 Are ordinary Americans any more to be trusted to consider issues of morality than the English and Welsh? The Durham or product test was abandoned in favour of the American Law Institute’s test (‘the ALI test’): A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law.82

Until 1982, when John Hinckley was found ‘not guilty by reason of insanity’ for the attempted assassination of President Reagan, the ALI test, or a variant, was adopted by all of the federal courts of appeal and many states. As a result of the backlash against this verdict, a number of states changed their insanity laws and the influence of the Rules re-emerged. For example, the defence under Federal law, in the form of the Insanity Defence Reform Act 1984 is almost a return to M’Naghten but for the replacement of ‘knowing’ with ‘appreciation’ and the lack of qualification of ‘wrongness’ by reference to law or morality. The Californian statute refers to incapability ‘of distinguishing right from wrong at the time of the offence’.83 Wrongfulness all but disappears from the test in Alaska where the defence is made out if the defendant was ‘unable as a result of mental disease or defect, to appreciate the nature and quality of the conduct’.84 It does not disappear completely because, notwithstanding the Court’s rejection of the submission in Codère that ‘quality’ refers to the moral

80

David L Bazelon, ‘Psychiatrists and the Adversary Process’ (1974) Scientific American 230. 81 Windle (n 6). 82 American Law Institute, Model Penal Code, Proposed Official Draft (Philadelphia 1962) s 4.01(1), 66. 83 California Penal Code (Supp 1987) s 25(b). 84 Alaska Statutes s 12.47.010 (Supp 1986).

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aspect of the act,85 as observed by the Law Commission, ‘[a]ppreciation of the nature of an act surely includes an appreciation of its moral qualities’.86 The strongest endorsement of the view that ‘wrong’ in the Rules means morally wrong is to be found in the judgment of the court in Clark v Arizona where the Court’s decision about the two limbs of the test was this: The first part asks about cognitive capacity: whether a mental defect leaves a defendant unable to understand what he is doing. The second part presents an ostensibly alternative basis for recognizing a defense of insanity understood as a lack of moral capacity: whether a mental disease or defect leaves a defendant unable to understand that his action is wrong.87

Northern Ireland Since 1966 it has been the law in Northern Ireland that an insane person is: a person who suffers from mental abnormality which prevents him (a) from appreciating what he is doing (b) from appreciating that what he is doing is either wrong or contrary to the law; or (c) from controlling his own conduct.88

Jersey In A-G v Prior the court abandoned the Rules and adopted a definition suggested by Mackay that: … a person is insane … 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.89

85

Codère (n 5). Law Com DP, 2013 (n 3) para 3.25. 87 548 US 735; 126 S. Ct. 2709 (2006). 88 Criminal Justice Act (Northern Ireland) 1966 s1. 89 [2001 JLR 146] [emphasis added]. 86

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This probably represents the most radical reform of the insanity defence in that insanity is explicitly related to a state in which the person lacks responsibility for their conduct. It is in short a form of diminished or reduced responsibility defence. However there is a sense in which all of the insanity defences have the effect of attributing to the person at least a degree of lack of responsibility for their actions.

Scotland Scotland also has now reformed its law of insanity. Under s.168(1) of the Criminal Justice and Licensing (Scotland) Act 2010 it is a defence if the accused is ‘unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct’. In the explanatory notes ‘appreciate’ is explained as meaning that the accused ‘knew that his conduct was in breach of legal or moral norms but who had reasons for believing that he was nevertheless right to do what he did’.

Learning the Lessons from Abroad The reforms of the wrongfulness limb of the Rules affect three fundamental aspects of the limb. First is the underlying malfunctioning which finds expression in ‘defect of reasoning’. Second is the nature of knowledge which finds expression in the word ‘know’. Third is the object of knowledge which finds expression in the word ‘wrong’. ‘Defect of reasoning’ has been replaced by the concepts of ability/disability, capacity/incapacity and also unsoundness of mind. These are all welcome changes in that they move away from the restrictiveness of what is otherwise a purely cognitive test. To ‘know’ has been replaced by ‘appreciation’ and ‘understanding’. In turn, this capacity has been interpreted as involving competent use of understanding, rational thinking, sense, specifically concepts of rational perception, applying knowledge in a rational way, allowing for the effect of invalid reasons which result from delusions, rational choice and the effect of circumstances. It has also been interpreted as involving calmness or composure. The mental states of people whose behaviour brings them into conflict with the law are often characterised by a lack of composure or calmness and recognition that the emotions can have an adverse influence on the processes of thinking and decision-making opens up the defence to people whose powerful and morbid emotions and pathological states of overactivity blunting or incongruity of emotions, for example, affect their

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composure and prevent rational thinking. Knowledge has important emotional concomitants. ‘Wrong’ is now widely recognised as meaning morally wrong as well as legally wrong. But this is a meaning that can be discerned in the Rules notwithstanding the decisions in the appellate courts in England and Wales.

The Road Ahead If the Law Commission’s recommendations are followed, the present insanity defence will be replaced by a defence of ‘not criminally responsible by reason of a recognised medical condition’.90 This will go with a requirement that there must be expert evidence to the effect that the defendant wholly lacked the capacity (i) (ii) (iii)

rationally to form a judgment about the relevant conduct or circumstances; to understand the wrongfulness of what he or she is charged with having done; or to control his or her physical acts in relation to the relevant conduct or circumstances

as a result of a qualifying medical condition.91

When the proposed defence and the proposed evidential requirements are taken together, they can be seen to mirror features of the reforms introduced in other jurisdictions. What the Commission identifies as ‘practical reasoning’ and ‘cognitive competency’ 92 are not far removed from Lord Tindal CJ’s concept in 1844 of competent use of understanding.93 Arguably ‘sensibly’ rather than ‘rationally’ and ‘inability’ rather than ‘lack of capacity’ might be more ‘jury-friendly’ but judges will probably deal with these points in their directions. It is a matter of some concern that ‘wrongfulness’ is not qualified in the proposed defence. Although the Commission is clear ‘that wrongfulness

90

Law Com DP, 2013 (n 3) para 10.7. ibid para 10.8. 92 ibid para 4.11. 93 Vaughan (n 55) 91

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should not be limited to illegality’,94 there is surely a risk that Windle95 might again rule the day. The statute preferably, or the guidance, should be explicit about this. Introducing the Northern Ireland terminology ‘either wrong or contrary to the law’ 96 would be an important safeguard and consistent with the Commission’s position. What importantly is missing is ‘composure’ or ‘calmness’ and this needs to be included to allow sufficiently for the affective component of mental disorders. Another important concern is the qualification of lack of capacity with ‘wholly’. The Commission justifies this on the basis that it is ‘not a defence of reduced responsibility but of no responsibility’ 97 but except perhaps in some cases of automatism, medical experts may be unwilling to go so far as to testify that capacity is wholly absent. Albeit that the qualification ‘substantially’ instead of ‘wholly’ may appear to shift the defence from one of complete lack of responsibility to a partial defence as in manslaughter on the grounds of diminished responsibility 98 , it is noteworthy that total lack of capacity has not been introduced as such in any of the other jurisdictions that have reformed the insanity law and ‘substantial’ does feature in the reformed Jersey law.99 Furthermore, the Mental Capacity Act 2005 does not qualify capacity with any term that conveys ‘wholly lacking’. There is a risk that, far from extending the insanity defence to people who should not be held responsible for what would otherwise be their criminal conduct, the ‘wholly’ qualification will be almost as restrictive as the present law. There have been repeated unsuccessful attempts to reform the law of insanity, beginning at least as early as Sir James Stephen’s Homicide Amendment Bill in 1874. So what is the way forward in the meantime and in case this attempt also fails? Paradoxically, the solution is not better education of psychiatrists about the Rules. This can only result in a move away from the liberal and relaxed approach, that almost randomly affords justice to a lucky few, because then there will be even fewer pleaded insanity defences. What is needed is a raft of unsuccessfully pleaded insanity cases, based on lack of 94

Law Com DP, 2013 (n 3) para 10.4. Windle (n 6). 96 Criminal Justice Act (NI) (n 88). 97 Law Com DP, 2013 (n 3) para 3.3. 98 Section 2 of the Homicide Act 1957 as amended by section 52 of the Coroners and Justice Act 2009. 99 Prior (n 89). 95

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knowledge of the moral quality of the act but including reference to awareness of legal wrong, covering a range of diagnoses, in which the trial judges have refused to allow the issue to be put to the jury on the strict application of Windle100 or where the jury has been directed on that basis. These cases then need to make their way up the ladder of appeal to the Supreme Court where their Lordships, and Lady Hale, may be persuaded to loosen the vice-like grip which the Rules have been allowed to exert for over 170 years and preferably to do so before their bicentenary in 2043.

100

Windle (n 6).

CHAPTER FIVE TOTAL INCAPACITY JOHN STANTON-IFE

1

I. Introduction It is high time to abolish the M’Naghten rules.2 There is a better way for our criminal justice system to deal with the occasions on which a defendant’s mental condition is such that he or she should not be held responsible for what would otherwise be criminal conduct. Or so concludes the Law Commission. 3 In place of the M’Naghten special 1

Dickson Poon School of Law, King’s College London. Many thanks to all participants at the ‘Mental Disorder & Criminal Justice’ Conference in October 2013 at Northumbria University and to Grant Lamond and Gareth Owen for helpful discussion. I am especially grateful to RA Duff and to the editors of the volume and organisers of the conference, Ben Livings, Nicola Wake and Alan Reed. 2 M’Naghten’s Case (1843) 10 Clark and Finnelly 200. 3 Law Commission, Criminal Liability: Insanity and Automatism, a Discussion Paper (Law Com DP, 2013). References to this publication will appear in brackets in the footnotes. I should say in the interests of full disclosure that I myself worked as a lawyer in the criminal law team of the Law Commission in 2012. I had, moreover, some role in the production of the Law Commission’s, Insanity and Automatism: A Scoping Paper (Law Com SP, 2012). I did not, however, have any role in the 2013 paper and am approaching it here as an external commentator. I will say nothing here about the 2012 paper. According to the Commission, the Discussion Paper is intended as a contribution to the ongoing debate about ‘whether the law has the right test to distinguish between those who should be held criminally responsible for what they have done, and those who should not’ and I approach the document in that spirit of debate. See: http://lawcommission.justice.gov.uk/areas/insanity.htm (last visited 4 October, 2014) Needless to say, nothing I argue in this chapter should be taken to represent the view of the Law Commission.

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verdict of ‘not guilty by reason of insanity,’ the Commission argues a new special verdict of ‘not criminally responsible by reason of recognised medical condition’ should be put in its place. 4 The stigmatising label ‘insanity’ should be abandoned and the new defence named the ‘recognised medical condition defence’ (hereafter ‘the RMC defence’).5 The defendant’s lack of capacity, which, it says, lies ‘at the heart of our proposal and…is its principal strength’6, should replace the M’Naghten7 notions of lack of knowledge of the nature and quality of one’s acts and lack of knowledge of (legal) wrongness. Among other notable proposals, the Commission argues that the current rules laying the burden of proof on the accused in insanity cases should be brought much closer in to line with the burden of proof rules generally.8 My focus will be on its proposed new test and more specifically on the role ‘lack of capacity’ plays in it and, still more specifically, on the role of a ‘total lack of capacity.’ It will be useful to have a label for the Commission’s claim, examined in detail below, that the RMC test must be based on a ‘totally’9, ‘wholly’ or ‘completely’ 10 incapacitated defendant. I will refer to it as the totality condition. The Commission’s proposals in general are a significant new addition to legal thought about the relationship between criminal liability and mental condition. They merit the extensive discussion the Commission invites. My argument, however, will be that the insistence that the new test must be based on a total lack of capacity is a mistake. Whichever of the other proposals contained in the Discussion Paper may or may not be worthy of enactment into law, the totality condition, as understood together with those other proposals, needs to go. An alternative explicitly rejected by the Commission is ‘effective incapacity’. That, I will argue, is clearly preferable when taken with the remainder of the Commission’s proposals, as perhaps would be another option that would leave ‘incapacity’ free of any qualifying adjective. I consider and reject the arguments the Commission itself gives in favour of the totality condition and try to consider what other arguments might be given for it. These, I argue, do not fare better.

4

ibid ibid para 3.29 6 ibid para 3.2 7 M’Naghten (n 2) 8 Law Com DP, 2013 (n 3) chapter 8. 9 ibid para 3.3 10 ibid para 1.87 5

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II. ‘Recognised Medical Condition’ and the Incapacities Before coming to the totality condition in Section III, some background is necessary which will take up the present section. Early on in the Commission’s paper one of the leading authorities on the subject, Professor Ronnie Mackay, who had early sight of the proposals, is cited approvingly for his verdict that they are ‘radical’.11 What precisely it is about the new proposals that make them radical is not, however, stated. So far as the proposed RMC test is concerned, a good starting point for considering the background to the totality condition is to consider what is and is not radical or novel about them. One thing that is not at all new or radical about the proposed test is its structure (we come to the content of the test below). It has the same twopart structure that the best known tests in the common law world have, namely M’Naghten 12 itself and also the test contained in the American Law Institute’s Model Penal Code (MPC). 13 Like those two tests it contains, first, a statement of the condition the defendant had to be in at the time of the alleged offence and, secondly, a specific failing or symptom or incapacity that resulted from that condition at the time of the relevant conduct. As far as the first is concerned, M’Naghten14 states the condition in which the accused had to be in terms of ‘disease of the mind’, while the MPC does so in essentially the same terms of ‘mental disease or defect’. 15 The Commission’s proposed test is by contrast in terms of a ‘qualifying recognised medical condition’. As far as the second part of the structure common to all three tests is concerned, M’Naghten famously identifies as the necessary resulting failure, a lack of knowledge of the nature and quality or wrongness, on the part of the defendant, of his or her act. Both the MPC and the Commission in its proposed test, speak instead in terms of incapacities; the MPC identifying as necessary what we might call ‘volitional’ and ‘moral’ incapacities, while the Commission similarly holds ‘volitional’ and ‘moral’ incapacities to be necessary, together with a third, ‘rational’, form of incapacity. 16

11

ibid para 1.85 M’Naghten (n 2). 13 American Law Institute, Model Penal Code s 4.01 (Proposed Official Draft, 1962). 14 M’Naghten (n 2) 15 MPC (n 13) 16 Law Com DP, 2013 paras 10.3 – 10.5 12

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Neither element of the two-part structure common to all the tests just mentioned is inevitable. One could argue that an appropriate test requires the presence of the second element only, the specified incapacities or symptoms, and that the first part can accordingly be dispensed with. Why, one might ask, should it matter what caused a relevant incapacity if a defendant was (at least without fault) in fact incapacitated at the time of the relevant conduct? No doubt, most cases one might wish in reality to consider as cases for the defence would be based on some mental disorder, or occasionally a physical condition, but there could be other possibilities. Why not allow, for example, the argument that a defendant’s incapacity, assuming its existence has been proved robustly enough, was caused by a desperately deprived upbringing, rather than any mental or physical condition? The response of the Law Commission is at least implicitly clear. Causation in the current context does not matter in any way that would support the long ingrained distinction between disease of the mind and physical disease, but it does matter in such a way that a severely deprived upbringing, even where it faultlessly leads to the relevant incapacities, would be irrelevant. It will take us too far afield to comment one way or the other on the desirability of excising in this way the first part of the two-part structure that, as it turns out, the Commission’s test retains.17 The point for now is that one potentially radical move was not made. Another potentially radical step the Commission might have taken was, on the other hand, to require only the first part of the two-part structure we see in both M’Naghten18 and the MPC19 and to do away with the second. In other words it could have built the defence simply on the condition the defendant was proved to be in at the time of the alleged offence. Certainly ‘disease of the mind’ and indeed ‘recognised medical condition’ would need to have been further specified and limited since no one takes the view that just any form of mental (or physical) disorder is sufficient of itself to undergird an excuse or exemption from criminal responsibility. Outside of the common law world, the test in Norway states simply: ‘A person who was psychotic or unconscious at the time of committing the act shall not be liable to penalty. The same applies to a person who at the time of 17

See Morse’s scepticism on this and his references to arguments on the other side: Stephen J. Morse, ‘Severe Environmental Deprivation (AKA RSB): a Tragedy, not a Defense’, (2011) 2 Alabama Civil Rights and Civil Liberties Law Review, 147. 18 M’Naghten (n 2). 19 MPC (n 13).

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committing the act was mentally retarded to a high degree’.20 The thinking is plainly that psychosis, unconsciousness or very high levels of learning disability are themselves incompatible with criminal responsibility. Persons in those three conditions while carrying out otherwise criminal acts, just as is the case with children below a certain age, are simply taken to be globally non-criminally responsible. The defence was found not to apply to Anders Breivik, the perpetrator of mass murders in Utøya and Oslo in 2011. Plainly it was the psychosis limb that was in question in his case and, after some wavering at his trial, it was found not to apply.21 Had the opposite been the case, there would have been no need to show his psychosis resulted in any more specific incapacity or symptom in order to find him not criminally responsible. Such tests are controversial. Perhaps they abdicate too much of the law’s responsibility to psychiatrists. Perhaps they are too easy on defendants with psychosis and so on, since (arguably) these conditions do not globally incapacitate. Or perhaps those criticisms and others can be answered.22 I merely raise this possibility in order to point towards a (radical) change the Commission might have, but did not, propose, staying rather within the structure of the tests in both M’Naghten23 and the MPC.24 The structure of the Commission’s proposed test, then, is the familiar one of M’Naghten 25 and the MPC. 26 The defendant needs to be in a specified condition, but being in the condition in question is insufficient for the defence, which also requires a resulting failing, symptom or incapacity. So if there is nothing new or radical about the structure of the Commission’s proposed test, what about its content? As far as the first, triggering, condition is concerned the Commission’s ‘recognised medical 20

Norwegian Penal Code, 44, as translated into English at http://www.legislationline.org/documents/section/criminal-codes (last accessed 13.10.14). 21 For an account of the trial, see Richard Orange, The Mind of a Madman: Norway’s Struggle to Understand Anders Breivik, (4 September, Kindle Single, 2012). See also Simon Wessely, ‘Anders Breivik, the Public and Psychiatry’, (2012) 379 The Lancet, 1563-1564. 22 See Michael S. Moore, ‘The Quest for a Responsible Responsibility Test: Norwegian Insanity Law after Breivik’, Criminal Law and Philosophy (forthcoming; manuscript published online, 27 March, 2014, 1-49) 23 M’Naghten (n 2) 24 MPC (n 13) 25 M’Naghten (n 2) 26 MPC (n 13)

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condition’ is clearly a departure from M’Naghten’s ‘disease of the mind’ and the similar term in the MPC. The proposed abandonment of ‘insanity’ based on ‘disease of the mind’ in favour of ‘recognised medical condition,’ which deliberately elides ‘mental’ and ‘physical’ conditions, is in part aimed at ‘removing the stigma associated with the present “insanity” defence, and with mental illness in general’.27 The much softer term itself together with the fact that the RMC defence would be available for people with diverse types of condition, ‘some of which (currently) carry stigma and some of which do not’,28 it is hoped, would have this general anti-stigmatic effect. It would also counter two serious problems with the current law, first the general undesirability of labelling conditions such as epilepsy and diabetes as ‘insane’ and secondly, the fact that this is currently done selectively on the basis of seemingly hair-splitting distinctions developed in the case law.29 Since my main concern in this chapter is with a specific question about incapacities, I will say no more about this issue, save to note that the Commission’s proposals here strike me as an imaginative and promising way to remedy what is currently a highly unsatisfactory area of the criminal law and are as such very much worthy of serious discussion.30 More central for our purposes is the question of what can be said to be new about the content of the second part of the RMC test, relating to the failure, symptom or incapacity that needs to be triggered. As we have noted, the RMC test, adopts, unlike M’Naghten, 31 the language of incapacities. As M’Naghten has been interpreted in England and Wales, it does not get much beyond the cognitive tests of knowledge of the nature and quality of one’s act and knowledge of the legal wrongfulness of those 27

Law Com DP, 2013 (n 3) para 4.57 Parenthesis added. ibid para 4.57 29 Law Com DP, 2013 (n 3), see 1.41 and following 30 Stigma is not something that is ultimately under the control of the legislator. The worry is that if the stigmatic, ‘insanity’ is replaced with the non-stigmatic, ‘recognised medical condition’, the latter would, after a honeymoon period, gradually come to be itself stigmatised by dint of the gradual projection of societal attitudes onto it. ‘RMC’ might, in other words, come to be uttered in the same sneering tone of voice as ‘insane’ currently is. Even on this pessimistic assumption, if the interim period is long enough, the change might still be worth making. More optimistically, on the other hand, this effect might be avoided by the general phenomenon, known as the ‘medicalisation of life and society’. These are of course deep sociological waters. 31 M’Naghten (n 2). 28

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acts. Not knowing the nature and quality of one’s acts is plainly a cognitive failure. The focus is not on a person’s rational abilities in general, but on a failure to understand specific aspects of his or her own conduct. The second part of M’Naghten32 at least sounds like it refers to a moral rather than a cognitive failure: it is satisfied where there was a failure on the part of the defendant to know right from wrong. However, in England and Wales, the test has been interpreted in such a way that the required absent knowledge of right and wrong pertains to legal wrongness or criminality rather than to moral wrongness.33 The MPC test as noted anticipates the language of capacities adopted by the Commission. The former test reads: ‘a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law’. 34 Hence the MPC test recognises volitional incapacities of conforming one’s conduct to the requirements of the law and allows state jurisdictions to adopt a test in terms either of capacity to appreciate the criminality of conduct or its wrongfulness, hence it leaves room for moral incapacities. We also see here one alternative to a ‘total incapacity’ test, namely ‘a substantial incapacity’ test, something we return to below. The Commission’s proposed test is as follows: The party seeking to raise the defence must adduce evidence from at least two experts that at the time of the alleged offence the defendant wholly lacked the capacity: (i) to rationally form a judgment about the relevant conduct or circumstances (ii) to understand the wrongfulness of what he or she is charged with having done (iii) to control his/her physical acts in relation to relevant conduct or circumstances as a result of a qualifying 35 recognised medical condition.

Much of the Commission’s test then is also contained in the MPC test: the language of ‘non-responsibility’ as opposed to M’Naghten’s ‘nonguilt,’ the language of incapacity, rather than M’Naghten’s lack of knowledge, and the recognition of moral and volitional incapacities. As far as moral incapacities are concerned, the Commission explicitly rejects the 32

ibid Windle [1952] 2 QB 826 34 MPC (n 13) 35 Law Com DP, 2013 (n 3) para 1.93 33

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Windle36 reading of a failure to know right from wrong as pertaining to ‘legal’ rather than ‘moral’ wrongness. It recommends a test according to which the accused ‘need only appreciate that the act was something he or she ought not to do’.37 Commenting on what we are calling the ‘volitional limb’, the Commission states: ‘[w]e think that in some cases, it is possible for a medical condition to deprive a person of the power to control his or her actions, and that it is right in principle for the law to allow a defence in such cases’.38 Like the MPC test, then, a version of what we are calling ‘volitional incapacity,’ a failure of self-control, is adopted here. Where the Commission differs markedly, in this second part of its test, from the MPC, is in relation to its insistence on total, rather than substantial incapacity and in its introduction of a third kind of incapacity, that of rationally forming a judgment about the relevant conduct or circumstances. We examine the first issue in the next section, but what of the notion of rational incapacity? There is indeed a widespread view that a failure of practical reasoning or of an ability to be guided by reason is especially significant in determining excuses or exemptions from the criminal law. Morse, for example, writes: ‘I suggest that lack of capacity for rationality is the primary reason the law treats some crazy people specially’.39 ‘A defendant’, the Discussion Paper declares, ‘should not be held responsible where he or she could not have reasoned rationally’.40 This, when combined with the totality condition, can be summarised as saying that a defendant should not be held responsible where he or she could not have reasoned rationally to any degree at all. A defendant with a recognised medical condition who could by contrast to some, albeit small degree, reason rationally will not be able to avail him- or herself of the defence. The Commission adds a qualification, which applies to all of its recognised heads of incapacity. Capacity is said to be ‘time and issue specific’. Applying this general point to rational incapacity, the Discussion Paper states that ‘a court would not need to inquire into the accused’s ability to think rationally in general terms, but would ask rather: at the point where the accused did what was alleged, could she reach a decision rationally about what to do?’41 I will refer below to this requirement in 36

Windle (n 33) Law Com DP, 2013 (n 3) para 4.22. 38 ibid, para 4.53. 39 Stephen J. Morse, ‘Mental Disorder and Criminal Law’ (2011) 101 Journal of Criminal Law and Criminology 885, 892. 40 Law Com DP, 2013 (n 3) para 1.94 41 ibid, para 3.5 37

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terms of ‘offence-relativity’. The idea is not that any recognised medical condition globally incapacitates, it must incapacitate the defendant specifically in relation to the offence charged. From the fact that a defendant wholly lacked the reasoning ability to commit theft at a specific time and place, it does not follow he or she wholly lacked that capacity in relation to a theft at a different time or place or in relation to a different offence altogether. What, then, does the Commission mean by the capacity to reason rationally? Endorsing the formulations of Schopp, the Commission identify as ‘necessary for practical reasoning’ (1) the ability to form accurate beliefs, (2) an ability to draw on existing wants and beliefs that the actor has and (3) ‘an accurate reasoning process that allows (the defendant) to draw warranted conclusions about the probable relationships among various wants, acts and consequences’. ‘We can sum this up’, the DP concludes in the terms of its test ‘as an ability rationally to form a judgment’. 42 In the next section I consider in detail these critieria in relation to the totality condition and I will suggest that a total inability to form accurate beliefs, a total inability to draw on existing wants and beliefs the actor has and a total absence of an accurate reasoning process that allows the defendant to draw warranted conclusions about the possible relationships among various wants, acts and consequences are simply too demanding to form justified standards for the purposes of the test. In short, then, any claim the new proposed RMC test has to being radical or novel lies not in its structure, which is familiar, but in its extension of the qualifying condition that launches the defence beyond mental conditions into medical conditions in general and its addition of a new kind of resulting incapacity. As far as the totality condition is concerned, while not present in M’Naghten43 or the MPC,44 it is not, as we will note in the next section, new. It would bring back an aspect of the preM’Naghten law. However, before finally coming to the relationship between incapacity and the totality condition as understood by the Commission, it is worth bearing in mind a view with some distinguished support that is sceptical about the validity of any answer to the question of what is the appropriate incapacity or failure or symptom, and in what combination, to found the defence.

42

ibid para 4.11 M’Naghten (n 2). 44 MPC (n 13) 43

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Speaking in 1953 of the various tests of insanity in the criminal law, the Royal Commission on Capital Punishment observed ‘However much you charge a jury as to the M’Naghten Rules or any other test, the question they would put to themselves when they retire is--’Is this man mad or not?’45 If this is true, it would seem in practice not to matter whether the test is cognitive or moral or volitional or rational. Juries will simply decide on the basis of their folk understandings of who is mad or crazy or whatever the idiomatic term. Moore, for one, applauds the Royal Commission’s observation of the 1950s, convinced not just that it is empirically correct but that it has a lot going for it in a normative sense too: ‘Anglo-American juries show more sense’ in applying their own categories such as ‘craziness’ or ‘madness’ than have the Anglo-American lawyers who formulated the tests the juries ignore.’ 46 Morse, in similar vein, comments: Much scholarly ink has been spilled and many pixels illuminated about specific issues within M’Naghten and its variants, such as whether knowledge of right and wrong means moral or legal wrong and whether an allegedly broader substitute for knowledge, such as appreciation or understanding, is preferable. I believe that such debates are beside the point. To begin, the test used does not seem to make much difference in the outcome, a result I think is best explained by the jury’s rough and ready conclusion that the defendant was or was not sufficiently irrational to deserve to be punished.47

One might respond to scepticism of this sort in a number of ways. First, it is not clear that it is empirically correct. Are juries really that disdainful or ignorant of the instructions given them by the judiciary?48 Secondly, even if they are, is it right to applaud as Moore does, or should one try to think of ways to resolve the issue or limit its effects? For is the rule of law not threatened where there is a lack of congruence between the announced laws and their administration and application?49 Thirdly, so far as Morse is concerned, earlier we quoted his view that lack of capacity for rationality is the primary reason the law, as he puts it, treats some crazy 45

Royal Commission on Capital Punishment (London, 1953), s 322. Moore, (n 22) 28. 47 Morse, (n 39) 927. 48 In the US context, see Rita J. Simon, The Jury and the Defense of Insanity, (Transaction Publishers: 1998). 49 See e.g. Grant Lamond, ‘The Rule of Law’, in Andrei Marmor (ed), The Routledge Companion to the Philosophy of Law, (2012), 495-507, 496. 46

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people specially. Does it not, then, make sense to attempt as the Commission does to build such lack of capacity for rationality explicitly into the test? Again, it is not my aim to try to come to a concluded view on the correctness or otherwise of the claim that all tests reduce in the end to the simple question of the madness of the defendant or whether Moore’s or Morse’s scepticism about insanity tests in general is justified. I have cited these claims here for a different reason. Below I will be arguing that the the Law Commission’s totality condition must be rejected. The main argument I will make, however, is based on the assumption that it and the Commission’s specific understandings of the relevant incapacities will be taken seriously and applied according to their meanings and on their own terms. But what if the assumption is wrong and Moore’s and Morse’s skepticism justified? I will also try to consider, in section IV of the chapter what difference that would make. It is to the totality condition that we now turn.

III. The Totality Condition We have seen that the Commission’s proposed RMC test is based on what I called rational, moral and volitional incapacity. These incapacities must, according to the Commission, satisfy the ‘totality condition’ (again, my label). That condition is variously formulated. One formulation is: ‘a person should be exempted from criminal responsibility if he or she totally lacked capacity to conform to the relevant law’. 50 As well as the term ‘total’, it is also said that the defendant must wholly lack capacity51 and the phrase, ‘complete lack of capacity’ is also used.52 The Commission is not tentative about the condition: the word ‘total’ is the one word in a table of contents stretching to eleven pages that is italicised.53 It is apparently an aspect of the proposals that the Commission is particularly keen should not be missed by readers. The Commission rejects as insufficient for the defence the terms ‘effectively’ 54 , ‘substantially’ 55 , and ‘partially’. 56 The condition is intended to have considerable strategic importance: 50

Law Com DP, 2013 (n 3) para 1.20 ibid, para 1.93 52 ibid para 1.87 53 ibid para viii 54 ibid para 3.3 55 ibid para 1.87 56 ibid para 3.3 51

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This is such a significant “bright line” that a court would address it first: if the accused could not adduce sufficient credible evidence that he or she had wholly lacked a relevant capacity as a result of a recognised medical condition, then the court would not allow the defence to go forward.57

As I stated in the introduction, my central claim in this chapter is that the totality condition should be excised in favour of one of the rejected alternatives, namely an effectiveness condition or, perhaps, simply a capacity test that has no qualifying adjective. So what can be said in favour of the totality condition, given the Commission’s understandings of the relevant capacities, and why ultimately reject it? In the remainder of the chapter I will attempt to answer those questions. Although as we have seen there are three kinds of incapacity—rational, moral and volitional—in question, the presence of one of which being sufficient to open a path to the RMC defence, I will focus mainly on rational incapacity for as we saw in the last section, this is the most interestingly novel of the incapacity criteria proposed by the Commission. An obvious place to start is with the Commission’s own defence of the condition. Before that, an historical observation will help set the scene. Perhaps ironically given the Commission’s emphasis on the importance of updating the law,58 the totality condition would restore an aspect of the pre-M’Naghten59 law. In Arnold,60 the test of insanity, Mr Justice Tracey declared, ‘must be (of) a man that is totally deprived of his understanding and memory’. 61 The defendant, known as ‘Mad Ned Arnold’, appeared deluded and distressed. The insanity defence— requiring total deprivation of understanding and memory--was denied him on his plea of not guilty to maliciously and wilfully wounding Lord Onslow, after he had shot him with ‘small shot’. Arnold was observed often looking down at, and feeling, his bosom as he thought Lord Onslow was in it and he believed his Lordship regularly sent imps and devils to him at night to disturb his sleep. Reading the accounts of this case, it is very hard to believe that ‘Mad Ned Arnold’ was a suitable candidate for criminal responsibility for shooting at Lord Onslow. However, the test 57

ibid para 1.87 ibid para 1.2 59 M’Naghten (n 2) 60 16 How St. Tr. 765 (1724). For an account of the case, see Nigel Walker, Crime and Insanity in England, Volume 1: the Historical Perspective (Edinburgh, 1968) 53-57. 61 Emphasis added. Walker (ibid) 56. 58

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seems to have been correctly applied for the defendant was not apparently totally lacking in understanding or memory; he had gone to some trouble planning the attack on Lord Onslow and, on seeing that his plan had initially failed, he tried again. Commenting on Arnold, Watson writes: The conception of madness as complete deprivation of the capacities for ‘understanding’ or for ‘designs’ is absurdly stringent; no historical candidates for a defense on these grounds lack these capacities altogether. Indeed the standards fail to exempt four-year-old children or even dogs, who obviously pursue goals in view of some understanding of their environment. From their anxiety to punish the wicked, Tracey’s standards simply evade the difficult questions posed by defendants like Arnold, who surely have some sort of capacity to reason and plan. The problem with these defendants is rather that those very capacities are seriously compromised by mental disorder.62

Is the Commission’s totality condition, given its understandings of the relevant incapacities, likewise ‘absurdly stringent’? Plainly the Commission has no ‘anxiety to punish the wicked’, its totality condition does not relate to ‘understanding and memory’ and, as we observed in the previous section, is what we called ‘offence-relative’. The RMC defence, in other words, is available not simply to a defendant who totally lacks any of the relevant capacities, but who totally lacks any relevant capacity related to the specific offence charged. Should that lead us to say that the Commission’s test, unlike Arnold, is not too stringent? Might it be so far from Arnold, moreover, as to be worthy of adoption? In other terms, does the totality condition bring the certainty of a ‘significant bright line’63 into a generally workable test as the Commission would have it, rather than the absurdity of a test that can never or virtually never be satisfied? Let us turn, then, to the point at which the Commission seeks to justify its totality condition. It does so thus: It is central to the defence that the accused was incapable of complying with the relevant law. In other words, the defence is only to be available where the accused totally lacked capacity rather than where he or she partially lacked capacity or lacked effective capacity. This limitation is justified in theoretical terms because this is not a defence of reduced responsibility but of no responsibility. It is also justifiable in policy terms 62 Gary Watson, ‘The Insanity Defense’, in Andrei Marmor (ed) The Routledge Companion to the Philosophy of Law, (2012), 205, 206. 63 Law Com DP, 2013 (n 3) para 1.87

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because it will help to exclude from the defence those with, for example, a personality disorder which makes it hard but not impossible to control antisocial impulses.64

Neither the ‘theoretical’ nor the ‘policy’ defence, however, help to support the totality condition applied on the Commission’s understandings of the relevant capacities as far as I can see, as I will now explain. I will take the ‘policy defence’ first and then consider the ‘theoretical defence’. As far as the former is concerned, the Commission is obviously raising a very serious problem here. Personality disorders, especially ‘antisocial’ personality disorders or ‘psychopathic’ disorders,65 pose a thorny problem for any excuse of exemption from criminal responsibility based on mental disorder or medical condition. On the one hand such persons will often appear to act with the classic forms of criminal law mens rea, intending to harm the interests of others, knowingly doing so, being reckless about doing so and so on. As such they look like paradigmatic cases of those who deserve to be held criminally responsible and liable. On the other hand, they appear to lack the capacity to recognise that the interests of others make valid claims on them and therefore appear to lack a crucial building block of agency and moral responsibility—and thus also apparently lack capacity for criminal responsibility. 66 Clearly the Commission needed to commit itself to some practical way forward with this problem and I do not think the one they came to, be it right or wrong, is an unreasonable one. That position was to exclude antisocial personality disorders from the category of qualifying recognised medical condition.67 For while we have, thus far, spoken only of ‘recognised medical condition’, the full label should include the added term since not all recognised medical conditions qualify. ‘Acute intoxication’ is another example of a recognised medical condition that would not, on the Commission’s proposals, be a qualifying condition. 68 The position is a reasonable one to take, I think, in part because many of those who argue that psychopathy involves the sort of deep moral incapacity that precludes

64

ibid para 3.3 ibid para 4.96 66 Gary Watson, ‘The Trouble with Psychopaths’, in R Jay Wallace, Rahul Kumar, and Samuel Freeman (eds), Reasons and Recognition: Essays on the Philosophy of T.M. Scanlon (Oxford:2011) 307, 308. 67 Law Com DP, 2013 (n 3) para 4.93 68 ibid paras 4.87-4.92 65

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moral responsibility also think that we are unable in any reliable way to identify the genuine cases. In the words of Darwall: [T]here may simply be no publicly reliable way of distinguishing cases where there is literal [moral] incapacity from those where people are still capable of moral redemption, but freely choose not to redeem themselves…[A] presupposition of moral freedom may be a justified form of ‘practical faith’ which we may lack sufficient evidence to defeat.69

For our purposes the point is that antisocial personality disorders are not qualifying recognised medical conditions on the Commission’s proposals. They therefore are not going to be conditions to which the total incapacity test will be applied. To use this issue in support of the totality condition looks decidedly like a form of double counting. Furthermore, those who are able to control themselves, albeit with difficulty, are not clearly ‘effectively’ incapacitated, even if they may possibly be ‘substantially’ or ‘partially’ incapacitated. I believe one serious problem with the Commission’s stance on the totality condition is the assumption that ‘substantive’ or ‘partial’ incapacity, on the one hand, and ‘effective incapacity’ on the other, are synonymous so that an argument against one is also an argument against the other. Below I will suggest that the case for an ‘effectiveness standard’ is much stronger than for a ‘substantive’ or ‘partial’ standard. The ‘theoretical defence’ of the totality condition cited above gets us no further, I believe, at least not if taken on its face as describing or alluding to some theory or theoretical generality. I am unsure what the Commission means by it and I suspect that it does not ultimately set much store by anything ‘theoretical’ here. Beyond the one line quoted in the paragraph above (‘This limitation is justified in theoretical terms because this is not a defence of reduced responsibility but of no responsibility’) no mention is made of any theory or any theoretical claim. The Commission says that it may be fair enough ‘in theoretical terms’, to have a substantial, effective or partial capacity test where the outcome is reduced responsibility or liability. Though the diminished responsibility defence is not mentioned, presumably it is an example of ‘a defence of reduced responsibility’. 70 If successfully raised, it has the effect of reducing liability from murder to manslaughter and indeed ‘substantial inability’ is 69

Stephen Darwall, The Second-Person Standpoint (Harvard: 2009) 90. Quoted in Watson, (n 66) 322. 70 Law Com DP, 2013 (n 3) para 3.3

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the test in play.71 Matters are different, however, the Commission may be saying, where the outcome is no responsibility or liability as, presumably, in an acquittal or other finding of ‘not criminally responsible’ such as the RMC defence itself. But what exactly is the theoretical claim that is being called upon to support this result? Is it that there is a general truth such that a total absence of responsibility or liability must depend on some feature of a person or a situation that is itself totally absent, as opposed to insufficiently present? I am unaware of anyone who has made such a claim, which is unsurprising since it is surely false. For one thing, persons are routinely acquitted where there is good evidence of their guilt, just not enough to put the matter beyond a reasonable doubt. In other words ‘no responsibility’ in that context does not depend on the total absence of evidence. Furthermore an acquittal based on duress is open to sober persons with merely reasonable (or sufficient) firmness; totality is not required. 72 It is unclear why one must never base a partial absence of responsibility or liability on a feature of a person or situation that is totally absent (or a total absence of responsibility or liability on a feature of a person or situation that is less than totally absent). One must surely look at the arguments in context and judge on that basis. It is more likely, I think, that what the Commission really had in mind in their ‘theoretical’ justification, was not in fact any general theoretical claim at all but the much more specific contrast between their proposed RMC defence and the already existing homicide defence of diminished responsibility.73 There is an important point here, I think, as I will now suggest. We will see that, while it may cut against the notion of ‘substantial’ or ‘partial’ incapacity, it does not do so against that of ‘effective incapacity’. As already mentioned, diminished responsibility, if successfully pleaded, reduces murder to manslaughter and this will be on the basis inter alia of at least ‘substantial’ inability.74 The interpretation of the term ‘substantial impairment’ has been the subject of some controversy 71

Homicide Act 1957, s2 (as amended by the Coroners and Justice Act 2009, s52). Graham [1982] 1 All ER 801. 73 Section 2 of the Homicide Act 1957, as amended by section 52 of the Coroners and Justice Act 2009. 74 One problem with this reading of the Commission’s intentions is that the term ‘substantial’ is not itself used in the paragraph quoted above laying out its ‘theoretical’ defence of the totality condition. However, as we observed at the start of the second section of the chapter, the Commission uses all the terms ‘substantial’, ‘partial’ and ‘effective’ at various points in the document, nowhere apparently seeking to distinguish them from one another. 72

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in recent case law on diminished responsibility. The controversy concerns the degree of incapacity to which the term ‘substantial’ can be said to relate. In Ramchurn75 it was stated that ‘substantial’ had of course to mean more than ‘extinguished’, more indeed than ‘trivial and insignificant’ but no more was required.76 That of course leaves a lot of ground. At least in some contexts, it surely leaves too much ground. Elias LJ points out in Golds77 that a substantial salary ‘would not convey the meaning that it is something a little more than minimal; on the contrary, it suggests that it is significantly more than that’.78 Golds, indeed, restores a more demanding approach. According to Elias LJ, either a judge should refrain altogether from defining ‘substantial’ and leave its meaning to the common sense understanding of the jury; or, if asked for help by the jury, should explain that a lack of substantial impairment is consistent with the defendant’s having some impairment, albeit not one ‘that really made any great difference, although it may have made it harder (for the defendant) to control himself’.79 On both understandings the defendant’s abilities need not be ‘wholly’ impaired.80 Where they differ is over the extent to which they need not be wholly so, barely more than minimally or significantly more than that. To the defendant, the relevant incapacity in diminished responsibility is a hurdle or an obstacle, something that makes compliance with the law (much) harder, not a barrier or a block, something that makes compliance with the law impossible. Golds was decided after the Commission published its proposals. But while taking a more robust stance on the meaning of ‘substantial’ in diminished responsibility, it is clear that the defence may be successfully pleaded even if a defendant had some relevant capacity on the Ramchurn understanding as well. To the objection that it is unacceptable to let defendants off the hook for murder when they did have some capacity to act differently, the answer is that getting off the murder hook is not getting off the hook more generally. Diminished responsibility results not in an acquittal, but a conviction of the highly serious offence of manslaughter. It is emphatically, then, not a defence like the RMC defence that would result in a verdict of ‘not criminally responsible.’ The end result is (partial) criminal responsibility—which is serious criminal responsibility for all 75

Ramchurn [2010] EWCA Crim 194. ibid [15]. 77 Golds [2014] EWCA Crim 748. 78 ibid [55] 79 ibid [58]. The quoted words are from R v Simcox The Times, 25th February 1964. 80 ibid [55]. 76

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that. Hence, if I am right, what the Commission is relying on in its ‘theoretical defence’ is not any general theoretical proposition, but a specific comparison between the RMC defence and the existing defence of diminished responsibility. As far as the latter is concerned the law can afford to allow a defence notwithstanding the presence of some significant capacity on the part of the defendant, because the outcome is very real, albeit diminished, responsibility, not the absence of responsibility as in the RMC defence. I think this is a good reason for the RMC defence to avoid the term ‘substantial incapacity.’ There may be a tendency for existing and future case law interpreting diminished responsibility to influence the RMC defence more strongly than it should, notwithstanding the essential difference between the defences as described above. Furthermore, this tendency might become especially pronounced when one remembers that much of the central terminology from the RMC defence appears to have been taken from the wording of the defence of diminished responsibility. For not only the term ‘arose from a recognised medical condition’ itself, but also the term’ (in)ability to form a rational judgment’ are already to be found in the diminished responsibility defence. There is good reason, then, to keep clear water between the proposed RMC defence and diminished responsibility. In short I agree with the Commission’s rejection of ‘substantial incapacity’ (and on the same basis, ‘partial responsibility’). We saw in the first part of this chapter that the MPC standard also has considerable overlap with the proposed RMC defence but prefers ‘substantial’ to the Commission’s ‘total’. I think it would be profitless to pause to consider how that term has fared in the USA in the jurisdictions in which it has been adopted, simply because in England and Wales the defence of diminished responsibility, with its ‘substantial’ standard, would be likely to exert such a strong influence over the development of any amended RMC defence based on a ‘substantial’ standard, as to make it wise by that possibility alone to rule out proceeding down any such amended RMC route. From the conclusion, however, that the RMC defence should eschew ‘substantial incapacity’ it does not follow that the same goes for ‘effective incapacity’. The Commission as we have seen lumps ‘effective’ incapacity with ‘substantial’ and ‘partial’ incapacity and dismisses all three at one stroke. It strikes me that ‘effective’ incapacity is different from both ‘substantial’ and ‘partial’ incapacity. For effective incapacity is not a partial incapacity standard. What ‘effective’ brings out, however, is a sensitivity to the point of having the standard in the first place. As we saw above the Commission takes that point to be to refrain from meting

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criminal responsibility on those ‘incapable of complying with the relevant law’. 81 Below I will try to explain this in relation to a useful worked example the Commission develops to explain its own position. First, however, an analogy may be in order. The analogy in question is with the idea of freedom and I think it will help to launch us onto the distinction I want to draw between ‘effective incapacity’ and ‘substantial incapacity’. Taylor, in the course of a paper well known to political philosophers, mentions a case involving a local authority putting up new traffic lights so that where previously people could cross as they liked, consistently with avoiding collisions, now they need to wait for a green light.82 This is, in a sense, a restriction on freedom, in particular it is an external impediment to action. But it is hardly a serious restriction on freedom broadly conceived. In fact, although in theoretical discussion one must accept that this is a restriction on liberty, in serious political debate one probably would not. It would seem too trivial, the activity and purposes, as Taylor says, are not really significant and better characterised as a trade-off between convenience and safety. Taylor then compares the erection of the traffic lights with a law which forbids me from worshiping according to the form I believe. Now that, by contrast, is a truly serious infringement on freedom, even, says Taylor, ‘a law which tried to restrict this to certain times (as the traffic light restricts my crossing of the intersection to certain times) would be seen as a serious restriction’.83 Taylor says we should explain the difference between the two cases thus: …we have a background understanding, too obvious to spell out, of some activities and goals as highly significant for human beings and others as less so. One’s religious belief is recognised, even by atheists, as supremely important, because it is that by which the believer defines himself as a moral being. By contrast my rhythm of movement through the city traffic is trivial. We don’t want to speak of these two in the same breath. We don’t readily admit that liberty is at stake in the traffic light cases. For de minimis non curat libertas.84

81

Law Com DP, 2013 (n 3) para 3.3. See Duff (p. 160-167) for discussion of the Commission’s various formulations of the point of the defence. 82 Charles Taylor, ‘What’s Wrong with Negative Liberty?’, reprinted in Ian Carter, Matthew H. Kramer and Hillel Steiner, Freedom: a Philosophical Analogy (Oxford: Blackwell:2007) 153, 154. 83 ibid 155 84 ibid 155.

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The lesson for us I think is something like this. In a loose sense we can say of both freedom and capacity that they are ‘scalar’ or ‘quantitative’ notions. There can be more or less freedom, more or less capacity. Taylor, in the case of freedom, is resisting the views of some thinkers who, having defined freedom in a certain way as the absence of external impediments, attempt to understand freedom in an altogether too quantitative or scalar way. But freedom is not the absence of external impediments understood in that scalar way: ‘there are discriminations to be made. Some restrictions are more serious than others, some are utterly trivial’. 85 Similarly, I believe, we will find in the case of capacity that there are ‘discriminations to be made’, there will be pockets of rational, moral or volitional capacity (as per the Commission’s definitions) which, while they exist, are unavailing to the defendant or trivial or so severely compromised as to be useless. It is the role of ‘effective’ in ‘effective incapacity’ to make the discriminations that are needed. Total incapacity, especially as the Commission bids us understand it, by way of contrast with effective incapacity and in accordance with the specified understandings of the capacities, is in no position to make them. I will illustrate this point, below primarily in relation to rational incapacity. Let us now consider the contrast between total and effective incapacity against the background of the helpful worked example provided by the Commission. It concerns the following, imagined case: D lives in a flat. He has a history of sleepwalking. One night he gets up, puts toast under the grill, turns the grill on and returns to bed. The kitchen catches light and the fire spreads to neighbouring flats. D is woken by the sirens of the fire engines. No one is hurt but several flats are badly damaged. He is charged with arson. His defence was that he was asleep throughout, including when he turned the grill on. In this case, the prosecution would have to prove that D damaged the flats, without lawful excuse, and intending to damage them or being reckless as to whether they would be damaged. D will be ‘reckless’ in this context where he was aware of a risk that the flats would be damaged by his actions and it was, in the circumstances known to him, unreasonable to take that risk. D’s case will be that his actions were not voluntary, and that he did not have such awareness.86

Whether or not his acts were voluntary (or conscious) is not as such relevant, as neither ‘voluntariness’ nor ‘consciousness’ form any part of 85 86

ibid 155. Law Com DP, 2013 (n 3) paras 1.97-1.98.

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the proposed RMC defence. What needs to be established is that the defendant wholly lacked one of the relevant capacities, which we earlier labelled ‘rational’, ‘moral’ and ‘volitional’. I shall look in most detail at the first, rational, capacity as it is, as we saw in the previous section, a novel aspect of the RMC defence. D, according to the rational capacity limb of the test, needed to be ‘wholly incapable at the time of thinking rationally’;87 or totally incapable of rationally forming a judgment at the time. 88 If it could merely be shown that he or she was ‘effectively’ incapable or of course ‘substantially’ incapable, the RMC defence would fail. In assessing total rational incapacity or a total incapacity to form rationally a judgment, how should ‘rational’, ‘rationally’ and so on be understood? As we saw above, the Commission defines these terms thus: (1) the ability to form accurate beliefs, (2) an ability to draw on existing wants and beliefs that the defendant has and (3) an accurate reasoning process that allows (the defendant) to draw warranted conclusions about the probable relationships among various wants, acts and consequences. Does he have any above-zero capacity on these criteria? Given these criteria are hardly demanding, it certainly appears as if he does. He has some perfectly accurate beliefs. Putting bread under a grill that has been switched on is a way of making toast. Ten out of ten for that belief! He seems to be able to draw on his beliefs together with existing wants too. He presumably makes the toast because he wants to eat. Quite why he did not eat bread without toasting it will almost certainly turn on his desires and beliefs, a preference for the taste of toast over bread, or a belief the bread was getting stale so toast was better than nothing. If those were his beliefs and preferences, rather than say ‘toast is better because goalkeepers tend to be tall’ then this is again perfectly rational. This is of course all pretty small fry, but that is all that appears necessary for an above-zero capacity to form accurate beliefs and to draw on beliefs and desires. It is not clear that having an accurate reasoning process that allows the defendant to draw warranted conclusions about the probable relationships among various wants, acts and consequences is totally absent either. As is often pointed out, sleepwalking apparently often involves purposive activity.89 87

ibid para 1.100 ibid para 1.93 89 Andrew.Simester, John Spencer, Robert Sullivan and Graham Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (5th ed, 2013), 110. See also Parks (1992) 95 DLR (4th) 27. 88

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What of the other two capacities making up the RMC defence, ‘moral’ and ‘volitional’ incapacity? A defendant, as we have seen, may still avail himself of one of these incapacities (if total) even if the others are not totally absent. Was the D wholly incapable at the time, asks the Commission of appreciating (morally) that he should not put toast under the grill and leave it, or of controlling his actions? 90 Again, since all that is required is something above zero that need not have any effectiveness, it seems quite possible that even a sleepwalker might meet the condition. By way of comparison, consider an everyday case of a conscious person free of any mental disorder. I have memories of my mother-in-law, while apparently fully engaged in recounting some story, moving scissors or putting the fireguard on the fire, immediately after a toddler had entered the living room. When asked about these discrete actions she would not recollect them (‘I didn’t put the scissors up there…did I?’). This is, I think, a common case of a conscious person free of mental disorder, albeit in certain ways absent-minded, but who (to at least some extent) appreciates morally the need to take certain measures protective of others. These are quite habitual actions borne, no doubt, in her case of the experience of many years of motherhood. In the case of sleepwalking, we are surely not entitled to assume there will never be anything analogous. What we probably are entitled to assume is that, even if thoughts of the sort are still filtering through to the sleepwalking defendant, they are quite unreliable in their sensitivity to the context and in their interconnectedness with his other brain activity, so much so that it would be wrong to hold the sleepwalker responsible for them. The RMC totality condition, however, is sensitive merely to the bare above-zero existence of any of the relevant capacities and the Commission quite explicitly rules out sensitivity, by contrast, to their effectiveness. The apparently sleep-walking toast-maker may have taken precautions for a while (say, he turned the heat down), or if we imagine he’d been making toast on a fire with a jaffle-maker, he may have put a fireguard on the fire. Similarly in terms of the third capacity, control, the sleepwalking toast-maker may exercise such control in various haphazard ways. The possibility of a complete or near complete lack of consciousness on the part of the sleepwalking toast-maker may well, depending on the best understanding of states of automatism, result in the disabling or severe compromise of internal ‘communication among

90

Law Com DP, 2013 (n 3) para 1.100

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distinct and dissociable mental mechanisms’91 and that, to be sure, will most likely be pivotal to his moral responsibility. Moral responsibility can surely be lacking even where a defendant has some bare, above-zero, rational, moral or volitional capacity or haphazard assemblage of all of them, at least on the understandings proposed by the Commission. By contrast, if the test were one of ‘effective incapacity’, these pockets of capacity could be ignored because they are unavailing, trivial or too heavily distorted or compromised. Bare existence of a capacity as defined is not of the essence of an ‘effectiveness’ test.92 Unlike total incapacity, it allows sensitivity to the very point of the defence.93 We have not yet addressed the point that total incapacity is said by the Commission to be ‘issue and time specific’ and must be ‘in relation to the 91

Neil Levy, Consciousness and Moral Responsibility (Oxford University Press:2014) 43. See this work for general discussion of the nature of the mind, with special reference to states of automatism, and a defence of the ‘global workspace view.’ 92 Possibly even in these circumstances a defendant would be better off seeking to argue, as might anyone without any medical condition, that he did not in fact advert to the necessary risk. That may be an easier job than to show he had absolutely no offence-relative rational, moral or volitional capacity. It is of course a worry to say the least if those with recognised medical conditions in contexts like this were to become unwilling to use the RMC defence. 93 Duff helpfully distinguishes between ‘master capacities’ and ‘sub-capacities’. [this volume, p. 162] He settles on ‘the capacity to grasp, to apply and to guide one’s conduct by the reasons on which the law depends’ as the relevant master capacity [p. 163], A ‘sub-capacity’, he says, ‘is one of the more particular and limited capacities that when properly coordinated contribute to or help to constitute that master capacity’. Thus what we have called the Commission’s moral, rational and volitional capacities are sub-capacities. This, I believe, nicely helps the point I was trying to make in speaking of ‘sensitivity to the point of the defence’. My claim is that if one takes the ‘sub-capacities’ (in Duff’s terms) as understood by the Commission (I especially stress the Commission’s understanding of rational capacity) and add (1) the totality condition and (2) that effectiveness is not to be considered, one blocks the path from the sub-capacities to the master capacity. Above-zero pockets of the sub-category capacities block a defendant who lacks the master capacity from using the defence. Duff puts the point better than I do, but as far as I can see, we are saying the same thing here. I do regret not saying more in the paper about what I took ‘the point’ of the defence to be. My further suggestion (not shared by Duff) is that if the sub-capacities have to be effective (not merely partial or substantial), that would strengthen the Commission’s proposals as this opens up again the path between the sub-capacities and the master capacity, as might ‘capacity’ with no qualifying adjective.

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charge’,94 what I earlier referred to as the ‘offence-relativity’ of the total incapacities. Time-specificity seems clear enough. Just because we can prove someone was unable to X on Tuesday does not mean we can prove they were unable to X on Wednesday. Issue-specificity seems clear too. From the fact that an elaborate fraud would be quite beyond someone it does not follow that an act of violence would also be so. Complete incapacities as they are defined ‘in relation to the charge’ must relate to more than simply the rational, moral or volitional incapacities of the defendant to be able to perform all the necessary physical actions making up the conduct element of the offence in question and to have all the necessary mental conditions making up the fault element. One must also have the incapacity to perform both in the right kind of way. After all, the Commission emphatically rejects the threshold argument that we need no sort of criminal law defence based on mental disorder or medical condition in the first place since we can rely on ordinary principles of criminal fault to acquit, or convict as the case may be, in all appropriate cases. The Commission adjudges ‘very persuasive’ the observation of Morse and Hoffman that mental disorder can interfere with a person’s rationality even if it does not interfere with their formation of mens rea.95 Even offencerelative total incapacity is as defined, then, a wide category that, it would seem, extremely hard to establish. For example, even an offence-relative rational incapacity to, in the Commission’s words, form any ‘accurate belief’ at all, is hardly ever, one imagines, going to be lacking. We asked earlier whether the totality condition of the proposed RMC defence had the resources to fend off the ‘absurd stringency’ objection levelled by Watson96 against the ‘total deprivation of understanding and memory’ test to be found in Arnold.97 We also observed earlier that the introduction of the rational capacity test would break new ground by way of comparison with M’Naghten98 and the MPC.99 Focusing mainly on that aspect of the new proposed test, we have in place of ‘total deprivation of understanding and memory’, the new idea of’ total lack of offence-relative rationality’. As we have seen rationality is understood in turn as the ability to form accurate beliefs, to draw on existing wants and beliefs that the actor has and ‘an accurate reasoning process that allows (the defendant) to 94

Emphasis in the original, Law Com DP, 2013 (n 3) para 3.5. ibid para 2.31. 96 Watson, (n 62) 205, 206. 97 Walker (n 60) 56. 98 M’Naghten (n 2) 99 MPC (n 13) 95

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draw warranted conclusions about the probable relationships among various wants, acts and consequences’. 100 Any accurate belief, any drawing on an existing want or belief and so on provided it relates, albeit in the right way, to the incapacity to perform the physical actions and form the fault elements of a specific offence, will be enough to put the defence out of reach on the basis of rational incapacity. The fundamental problem with the totality condition as I see it is that it makes the defence depend on the bare existence of some above-zero pocket or pockets of capacity, irrespective of whether it avails or they avail the defendant in any way or whether or not it is or they are trivial. For what the test must not be, says the Commission, is an ‘effective capacity’ test. We have no test of effectiveness to distinguish accurate beliefs and so on that may avail a defendant from those that will not do so. Surely the point about the sleepwalking toast maker was that he could not bring any rationality, selfcontrol or moral sense he may have had to bear in any effective or reliable way. To make the issue turn instead on the bare existence of some abovezero smidgen of capacity or haphazard collection of above zero capacities (as defined), whether or not trivial, or severely driven or extremely compromised is surely a mistake. For as Watson observes in the context of rational capacity: ‘reason may not be destroyed by insanity, but may be distorted or driven by it’.101

IV. An Effectiveness Condition by any Other Name Throughout Part III of the chapter, I have been assuming that what I labelled the Commission’s totality condition must be taken seriously and taken as something intended to function as a guiding norm. In interpreting the totality condition I have also taken the Commission at its word that the test must not be understood as comprehending effective incapacity. I have pressed what is surely the obvious point that totality, wholeness, completeness especially when applied to the idea of rationality, instrumental or otherwise, and when explicitly not to be tempered by any notion of effectiveness, make for extremely demanding standards, given the definitions deployed. On the total incapacity test, if we imagine a scale of 1 to 20, 1 to 50 or whatever, the dial must fail entirely to register, albeit it must fail to do so along the three scales of rational, moral and volitional incapacity as they are defined. Perhaps some flickering between 0 and 1 100 101

Law Com DP, 2013 (n 3) para 4.11. Watson (n 62) 205, 207.

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(or better, 0.1) is permissible as long the dial reliably returns to 0. To change the metaphor and use the language we noted earlier from the diminished responsibility case, Ramchurn, the capacity must be ‘extinguished’. 102 If we take the totality condition seriously, pockets of trivial or utterly unavailing capacity will, provided they barely exist, be enough to disable the RMC defence along the relevant capacity.103 And that leaves us in scarcely better case than the absurdly stringent totality condition Arnold 104 left the law in pre-M’Naghten times. Like Arnold’s totality condition, we are left with a key aspect of the proposed new test that is insensitive to the point of the defence. However, throughout I have had the feeling that there is something unreal about assuming that the totality condition should be taken seriously. Surely, it may be said, judges, forensic experts and juries will use their common sense in applying the test, totality condition and all. They will not allow trivial or totally unavailing pockets of capacity to stand in the way of the defence. They will make the test sensitive to the very point of having it. They will make the sort of discriminations about incapacity that Taylor spoke of in relation to freedom simply as a matter of common sense. According to the Commission: As regards the effect of the requirement for a total loss of capacity, we do not think that would cause significant difficulty for a jury. For example, even if there was evidence that the accused had severe depression, but that an antagonistic relationship with the child’s father was part of the 102

Ramchurn (n 75) [15]. Duff points out that while I oppose the Commission’s totality condition, I myself use totalising language for example when I talk about ‘utterly unavailing capacity’ in the text accompanying this note [Duff chapter, p161] I do indeed. My objection, however, is not to totalising language as such. Rather an incapacity or a total incapacity has to be understood against a set of background understandings, in the way that Taylor argued the corresponding point in relation to ‘freedom’ [above, text accompanying notes 82 to 85] The problem I see with the Commission’s totality condition is that when it is combined with what Duff calls ‘the sub-capacities’ (rational, moral, volitional) and fixed with the Commission’s specific understandings of those sub-capacities, the path to what Duff calls the ‘master-capacity’ can get blocked off [see footnote 93 above; Duff p.162]. A defendant may not ‘wholly’ or ‘totally’ lack one or all of the capacities as defined, but may yet wholly or totally lack any basis for being held criminally responsible. As I put it above the incapacities, as defined, become insensitive to the point of the defence. 104 Walker (n 60) 56. 103

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Indeed a jury might well conclude that. And, while one would want more detail to make a firmer judgment on the case, it sounds as if we should wish that of the jury too. Notice, however, the totality idea has disappeared by the end of the passage. The accused by then is said (simply) not to have been capable of thinking rationally. In other words, it seems to me, the envisaged jury is quietly applying an ‘effectiveness’ criterion in all but name. No longer are we focusing on the demands of the totality condition according to the precise understandings of the incapacities proposed by the Commission. They, it seems, are being ignored. The test being applied is not, say, the accused was not capable of in any way thinking rationally, that is, the accused had no accurate belief relating to the case, in no way did she draw on her beliefs and preferences or make any warranted conclusions about the relationships among her wants, acts and consequences that related to the case (and so on in relation to moral and rational capacity). Almost certainly the accused could manage at least something along these lines. But she may yet be incapacitated to all effects and purposes despite barely registering on the rational, moral and volitional scales and that is why presumably the jury would come to the conclusion described. The choice, then, may be better put not as one between a ‘totality condition’ and an ‘effectiveness condition’, but rather as between an explicit effectiveness condition and a hidden or tacit effectiveness condition. If that is right, one might be tempted to conclude that there is therefore nothing to worry about in adopting the totality condition. However, there would be something to worry about. A hidden effectiveness criterion would not do away with the rule of law concern we mentioned earlier, of a lack of congruence between the announced laws and their administration and application. Moreover, the possibility would be left open of the selective use of the (real) totality condition being applied on occasion to defendants with unappealing characters, while the (hidden) effectiveness condition would be used elsewhere. Alternatively, one might return to the claims of Moore, and to a lesser extent Morse, that we mentioned in Part II. Maybe, that is, juries can be confidently relied upon simply to ignore the terms of any test they are asked to apply and thus ignore the totality condition along with it and 105

Law Com DP, 2013 (n 3) para 4.18

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decide the case on the basis of whether they believed the defendant to be genuinely ‘mad’ or ‘crazy’ or whatever. If this in turn is right, however, that seems to undermine much of the case for reform in the first place. For if any test will be ignored by juries, it sounds like one might as well stick with M’Naghten106. I am not myself convinced, however, that we have strong enough grounds for concluding that juries will inevitably ignore whatever test they are asked to apply. That said, it strikes me as far preferable to persevere with the attempt to find the test that best tracks the morally serious issues. One comes closer to doing that, I believe, by replacing ‘total incapacity’ with ‘effective incapacity’ or, alternatively, by leaving ‘incapacity’ unqualified, so as not to put any official block, whether it will be adhered to or not, on assessing the criteria of incapacity with a sensitivity to its point.

V. Conclusion In conclusion, I believe the Commission, if it really needed an adjective to qualify the term ‘capacity’ at all, would have done better to go down the road not taken of ‘effective incapacity’, rather than the one it did take, of ‘total incapacity’. I have agreed there were good grounds for it to avoid the terms ‘substantial’ and ‘partial’, but have suggested that ‘effective incapacity’ does not fall to the same arguments. The Commission has supported an effectiveness standard in relevantly similar circumstances in the past, 107 and in my view has not pointed to good enough grounds for the change in position now. In addressing the Commission’s proposals I have not tried to assess many of the important issues raised by what is on any measure an excellent contribution to serious thought about the conditions under which mental disorder or medical conditions ought to exempt persons from criminal responsibility or excuse them. I have examined the totality condition and argued that when it is combined with the specific understandings of the capacities identified by the Commission (I mostly focused on rational incapacity), it renders the capacities insensitive to the point of having the RMC defence. The Commission sees its own proposals as both ‘radical’ and ‘narrow.’ I referred to its view that the proposals are radical above. Elsewhere it states that ‘the defence itself will be a narrow one because of the prior 106

M’Naghten (n 2) Law Commission, Draft Criminal Code (Law Com 177) clause 33(1)(a). In relation to automatism, it favoured a deprivation of ‘effective control’ standard. 107

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requirement for total lack of capacity, and because not all medical conditions will qualify as ‘recognised medical conditions’ for the purposes of the defence. 108 Perhaps the twin aims to be radical and to keep the defence in narrow bounds were always going to be in tension. As far especially as the innovative head of ‘rational incapacity’ is concerned, making it subject to the totality condition, blunts it of effect if the condition is to be taken seriously in the sense discussed above. To echo Watson’s complaint about the pre-M’Naghten law almost no candidate for a defence of these kinds will totally, completely, or wholly lack rational capacities given the way rationality is defined by the Commission. 109 Though I spent less time on them, I believe the same is true in relation to moral and volitional capacities. It is often noted that Queen Victoria herself took an interest in M’Naghten’s110 case and its aftermath.111 It is that old! Apparently, King George II was involved in the aftermath of Arnold’s112 case, when the totality condition last formed a part of the law in this context.113 Certainly replacing something rather over 150 years old with something nearly 300 years old is no way to update it. Perhaps, though, we should not always want to modernise things; wisdom is sometimes found by looking further and further back in time. Sometimes, no doubt, that is the case. But not here.

108

Law Com DP, 2013 (n 3) para 3.13 Watson, (n 62) 205, 206. 110 M’Naghten (n 2) 111 Lytton Strachey, Queen Victoria (New York Harcourt, Brace and Co: 1921) 136. 112 Walker (n 60) 56. 113 Watson, (n 62) 205 109

CHAPTER SIX INCAPACITY AND INSANITY: DO WE NEED THE INSANITY DEFENCE? R.A. DUFF

1. Introduction The English Law Commission ‘provisionally propose[s] the creation of a new statutory defence’ to replace the existing common law, M’Naghten1based, insanity defence: a defence of ‘not criminally responsible by reason of recognised medical condition’. To claim this new defence, the defendant would have to ‘adduce expert evidence that at the time of the alleged offence [he] wholly lacked the capacity: (i) rationally to form a judgment about the relevant conduct or circumstances; (ii) to understand the wrongfulness of what he or she is charged with having done; or (iii) to control his or her physical acts in relation to the relevant conduct or circumstances as a result of a qualifying recognised medical condition’.

Certain conditions were to be explicitly ruled out as ‘qualifying’ conditions: these included ‘acute intoxication or any condition which is manifested solely or principally by abnormally aggressive or seriously irresponsible behaviour’. The available disposals after a verdict of ‘not criminally responsible by reason of recognised medical condition’ should be ‘a hospital order (with or without a restriction), supervision order, or an absolute discharge’.2 1

[1843] UKHL J16 Law Commission, Criminal Liability: Insanity and Automatism, A Discussion Paper (2013); these proposals are summarised at paras 10.6-15.

2

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John Stanton-Ife’s main objection to these proposals is focused on ‘wholly lacked’. He argues that the ‘totality condition’ proposed by the Law Commission, that a defendant should be entitled to the defence only if he ‘wholly’, or ‘totally’, or ‘completely’ lacked the relevant capacities, is far too strict: it should be replaced either by a bare requirement of ‘incapacity’, or by a requirement of ‘effective incapacity’.3 In what follows, I will comment (in section 2) on this aspect of Stanton-Ife’s critique of the Commission’s proposals, but will spend rather more time (in section 3) on an aspect of the Discussion Paper that he notes but does not pursue in detail: its retention of the two-part structure found in the M’Naghten Rules and in other versions of the insanity defence. To make out the defence, as the Commission proposes, a defendant must adduce evidence both of some relevant incapacity (whether that should be ‘total’, or merely ‘effective’), and of ‘a qualifying recognised medical condition’ from which that incapacity resulted: my argument will be that that second requirement is either unnecessary or unjust. We do need a ‘rational incapacity’ defence: but we should not qualify it by requiring that the incapacity be due to insanity, mental disorder, or a ‘recognised medical condition’.

2. ‘Total’ or ‘Effective’ Incapacity? Under the Law Commission’s proposals, a defendant who is to claim what the Law Commission abbreviates as the RMC (recognised medical condition) defence must lead evidence that at the time of the alleged offence he ‘wholly lacked’ one of the specified capacities—rational, moral, or volitional. Stanton-Ife’s objection is that this is an absurdly overstringent requirement; it should be replaced by a requirement of ‘effective’ lack of capacity or simply of ‘incapacity’. The first point to make clear is that the Commission’s requirement is not as stringent as Stanton-Ife sometimes implies. It requires a total lack of capacity for at least one of the relevant dimensions of rational agency—judgment, understanding, and control. It does not require total lack of capacity for all three dimensions: the language is of ‘or’ rather than of ‘and’. Stanton-Ife recognises this in his initial discussion (p. 141), but then seems to forget it: ‘the bare existence of some above-zero pocket of capacity’, he argues, puts the defence out of reach ‘irrespective of whether it avails the defendant in any 3

John Stanton-Ife, ‘Total Incapacity’, in this volume; bare page references in the following text are to Stanton-Ife’s chapter.

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way or whether or not it is trivial’ (p. 154). Even if he is right about how we should read ‘total’ incapacity, however, the defence would be out of reach only if there was ‘some above-zero pocket of capacity’ in all three of the specified dimensions. A second initial point worth noting is that Stanton-Ife himself does not wholly eschew totalising language. For he talks of ‘pockets of trivial or utterly unavailing capacity’, and ‘trivial or totally unavailing pockets of capacity’ (p. 155 [author’s emphasis added]): these, it seems, should not block the RMC defence, but would do so if the Commission’s proposals were strictly applied. But, third, we must ask whether a ‘totally unavailing’ capacity is in the relevant sense a capacity at all. A capacity is a capacity for some specifiable task—even if the specification is in very general terms: it would make no sense to talk of a ‘totally unavailing capacity to ‫’׋‬, if that was to mean a capacity to ‫ ׋‬that was totally unavailing in relation to ‫׋‬. A ‘totally unavailing capacity’ must therefore be a capacity to ‫ ׋‬that is totally unavailing in relation to something else—to ȥ; I am able to ‫׋‬, but that (if it is totally unavailing) leaves me totally incapable of ȥ. In the context of the RMC, we seem to know what ‫ ׋‬is: presumably, the exercise of practical reason in relation to the judgement, understanding, and control that figure in the three clauses of the Commission’s definition of the defence. But what then is the ȥ in relation to which pockets of capacity to ‫ ׋‬might be ‘totally unavailing’? It must have to do with conforming one’s conduct to the law, or refraining from committing the crime. But in that case we are back with a ‘totality condition’: the difference between Stanton-Ife and the Commission is not about whether the RMC defence should require a ‘total’ (or ‘utter’) lack of capacity, but about just what capacity—the capacity to do what—must be totally lacking; for Stanton-Ife the relevant capacity is to refrain from committing the crime (or something of that type); for the Commission it is capacity for at least one of the three specified dimensions of rational agency. To put the point another way, we need to be clear about what ‘effective’ is to qualify in Stanton-Ife’s preferred version of the defence. His official formulation is that it is the ‘lack’ that must be ‘effective’ (rather than ‘total’): there is some capacity that the defendant might possess to a ‘trivial’ degree, or in ‘pockets’, but he ‘effectively’ lacks it. Sometimes the talk is of ‘effective incapacity’, which might be read in the same way: the defendant lacked the capacity not totally, but effectively.

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But one can also talk of ‘effective capacity’, or its lack: 4 so we might wonder whether a person could ‘wholly’ or ‘totally’ lack an ‘effective capacity’, thus reconciling the Commission with Stanton-Ife. It is not clear, however, what ‘effective capacity’ means. It is on its face pleonastic: for a capacity is by definition ‘effective’ if it is a capacity at all; more precisely, a capacity to ‫ ׋‬must be effective, in enabling the person to ‫׋‬, if it is to count as a capacity to ‫ ;׋‬but the capacity to ‫ ׋‬might not be effective in enabling the person to ȥ. We can, I think, clarify the matter by recognising that while the Commission’s formulation of the defence, particularly the way in which it specifies the ‘totality condition’, is indeed unsatisfactory, Stanton-Ife has not quite captured the fault, or its remedy. We can distinguish (very roughly, and in a highly context-relative way), what we might call ‘master capacities’ from what we can call ‘subordinate capacities’ or ‘sub-capacities’. A ‘master capacity’ is a capacity for some relatively ambitious and complex enterprise; a ‘subcapacity’ is one of the more particular and limited capacities that when properly coordinated contribute to or help to constitute that master capacity. 5 The Commission offers significantly different descriptions of the master capacity that is relevant to criminal responsibility: it talks of a ‘capacity to conform to the relevant law’, or to ‘comply(…) with the relevant law’;6 and of a ‘capacity not to do the act which would amount to an offence’, or ‘to avoid performing the prescribed conduct’.7 Now it is true that if I am to be capable of conforming to or complying with the criminal law, I must have the capacity not to act in a way that would constitute an offence; but the reverse is not true. To say that I am capable of avoiding, or of not doing, a certain action is to say, roughly, that if I decided or set myself not to do it, I would not do it; or that if given what I could see as good reason not to do it, I would not do it—my conduct is responsive to some kind of reason. In that sense, the person who kills another in the deluded, psychotic belief that he is killing Satan is no doubt entirely capable of avoiding performing that act of killing: for if he decided not to kill this being, he would not kill him; if offered what he saw 4

As the Commission talks, at para. 3.3 (quoted by Stanton-Ife at p. 142), contrasting cases in which a person ‘totally lacked capacity’ with those in which ‘he or she partially lacked capacity or lacked effective capacity’. 5 Compare Aristotle’s distinction between ‘master arts’ and ‘subordinate ends’ in Nicomachean Ethics I.1. 6 Law Com DP, 2013 (n 2) paras 1.20, 3.3. 7 ibid paras 2.1, 2.18.

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as good reason not to kill him, he would not kill him. But it by no means follows that he is capable of conforming to or complying with the law that defines murder as a crime; for it by no means follows that he is capable of grasping, of applying to his present situation, or of guiding his conduct by, the kinds of reason with which the criminal law is concerned—the reasons which are reflected in its definitions of offences. Just what those reasons are is debatable. To talk of ‘conforming to’ or ‘complying with’ the law suggests a familiar view that the substantive criminal law ‘prohibits’ the performance of the kinds of action that it defines as criminal, and that the law-abiding citizen’s task is then to obey those prohibitions: the criminal law is seen as a source of new (‘contentindependent’ as some would say) reasons for action—reasons for obeying it; the question then is whether the person was capable of grasping, of applying, and of guiding his conduct by those kinds of reason. A further question then would be whether it should suffice that the person is able to grasp, apply and guide his conduct by the purely prudential reasons for action provided by a deterrent system of criminal punishment; or whether he must also be able to grasp, apply and follow the reasons that underpin the claim that he ought to obey the law. On a different view, however, it is a mistake to talk of prohibitions and obedience in relation to the criminal law: the criminal law’s offence definitions constitute not prohibitions, but definitions of wrongs from which we already have sufficient reasons (reasons independent of the criminal law) to refrain. The point of such offence definitions is then not to prohibit what might otherwise be allowed, or to provide new reasons not to engage in the specified conduct; it is rather to mark these out as wrongs that will attract a particular kind of formal, public response.8 On this view the master capacity required for criminal capacity is the capacity to grasp, to apply and to guide one’s conduct by the reasons on which the law itself depends, to which it implicitly refers in defining a type of conduct as criminal. We need not settle this debate here, however: we can just say, in suitably vague terms, that the master capacity is the capacity to grasp, to apply, and to act in conformity with the reasons with which the (relevant) criminal law deals. Once we have identified this master capacity, we can see that the capacities identified in the Law Commission’s proposed definition of the RMC defence (the capacities ‘rationally to form a judgment’, ‘to understand the wrongfulness’, and ‘to control his or her physical acts) are 8

See further RA Duff, ‘Relational Reasons and the Criminal Law’ (2013) 2 Oxford Studies in Philosophy of Law 175.

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actually subordinate capacities, or sub-capacities, in relation to that master capacity: if I am to have that master capacity, I need to be able to exercise these sub-capacities. However (and this is for present purposes the crucial point), we can also now say that what matters is not the total, or utter, lack of these sub-capacities, but the total, or utter, lack of that master capacity; and that that latter lack can indeed be total or utter even if the former lacks are not. That is to say (to put in different and I think clearer terms the point that Stanton-Ife is making when he talks of ‘totally unavailing’ or ‘utterly unavailing’ capacities), I might have a modest or minimal capacity to form rational judgments, to understand wrongfulness, and to control my conduct, in ways that bear on the offence I am charged with committing; but still be utterly incapable of grasping, applying, or guiding my conduct by the reasons that, according to the law, bear on my conduct. This is to suggest that the Law Commission and Stanton-Ife are both right—but also both wrong in key respects. The Commission is right to insist that a person who is to be entitled to the RMC defence, as a complete defence exempting him from criminal liability, must have been ‘wholly’ incapable, or have ‘totally lacked’ the relevant capacity: if he was still capable, if he did not totally lack the relevant capacity, he should not be totally exempt.9 Stanton-Ife is right, however, to argue that the defence should not require a total lack of any of the specific capacities listed in the Commission’s definition of the proposed new defence: what matters is the 9

Stanton-Ife objects to the implicit claim that ‘a total absence of responsibility or liability must depend on some feature of a person … that is itself totally absent, as opposed to insufficiently present’ [p. 145]. But, first, no such general claim is evident in the Law Commission’s discussion. Second, the examples that StantonIfe mobilises against that claim are hardly to the point. An acquittal does not indeed require ‘the total absence of evidence’ of guilt (nor indeed, more appositely, does conviction require a total absence of evidence of innocence); but that is a matter of the standard and burden of proof, not of what must be proved. A defendant pleading duress needs to claim only that someone of reasonable firmness would have given in to such a threat: but the relevant question here is whether, when it is said that the defendant’s will must have been ‘overborne’ by the threat (on the use of this notion, see David Ormerod, Smith and Hogan’s Criminal Law (13th ed., Oxford, Oxford University Press, 2011) 352), that overbearing must have been ‘total’. Similarly, for a ‘loss of self-control’ defence under ss. 54-5 of the Coroners and Justice Act 2009, the relevant question for us is whether the loss of self-control needs to be ‘total’. We need not try to answer these questions here, but can see why one might assert a ‘totality’ condition in such cases, to emphasise that it is not enough that D’s will is influenced by the threat, or that he might find it hard to control himself.

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(total) lack of the master capacity to grasp, apply or follow the reasons that, according to the law, bear on my conduct; as I suggested above, one can totally lack that master capacity without totally lacking any of these sub-capacities. However, we should by now be wondering about the meaning of ‘total’ in this context: what does ‘total incapacity’ add to ‘incapacity’? Surely incapacity itself is not a matter of degree: one is either capable (and capability is indeed a scalar notion) or one is not; if one is incapable, one is just that—incapable; one cannot be partly incapable, and there is therefore no need to specify ‘total incapacity’, as if an incapacity could be less than total. What is true is that what one is capable or incapable of can sometimes be a matter of degree: one person is capable of lifting a 100 kilogram weight, another person can only manage to lift 50 kilograms. But once we specify the relevant incapacity, adding ‘total’ seems otiose— ‘total incapacity’ is simply ‘incapacity’. This might suggest that StantonIfe’s alternative suggestion is right: we should not require either ‘total’ or ‘effective’ incapacity, but simply incapacity. On the other hand, perhaps ‘totally’, ‘wholly’, ‘completely’, 10 and ‘utterly’,11 should be understood in a different way: rather than specifying an end point of a spectrum or scale, they simply serve to add emphasis; what is required is indeed incapacity, not mere impairment or difficulty. Indeed, although capacities can sometimes be usefully described in ‘quantitative’ or ‘scalar’ terms,12 this is less useful in relation to the kinds of rational capacity with whose lack the RMC defence is concerned. With physical capacities, we can indeed often measure them on a quantitative scale: how fast can A run, how heavy a weight can she lift, and so on? The same is true of some mental capacities, when we can create or identify a series of tasks of increasing levels of difficulty, and measure someone’s capacity by seeing how far up the ladder she can go. This also means that we can identify degrees of impairment, or of under-development, in both physical and mental capacities: we might be able to do this in cases of ‘developmental immaturity’,13 when the person has not developed certain capacities to the extent that someone of that age normally develops, and in 10

The Law Commission’s terms, at paras 3.3, 1.87 of the Law Com DP, 2013 (n

2).

11

Stanton-Ife’s term, [p. 155]. As Stanton-Ife claims of capacity in general [p. 149]. 13 The Law Commission discussed the possibility of a distinct defence of ‘not criminally responsible by reason of developmental immaturity’ in ch 9 of the Law Com DP, 2013 (n 2). 12

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cases in which someone suffers progressive diminution of his rational capacities, as in some kinds of dementia. But in many cases in which a defendant should be able to plead the RMC defence, we are dealing with the radical distortion of rationality rather than with its (partial) absence; if we think of the person who is suffering some wide-ranging psychotic delusions, we cannot in the same way try to locate their condition on a quantifiable scale. So we should perhaps read ‘totally’, and the cognate terms that both the Law Commission and Stanton-Ife use (‘wholly’, ‘completely’, ‘utterly’) not as attempts to specify a position on, or at the end of, a measurable scale, but as ways of emphasising that the person must be genuinely, really, radically incapacitated. Where does this leave the Law Commission’s proposed definition of the new defence? I will comment on the requirement for a ‘qualifying recognised medical condition’ in the next section; our concern so far has been with the ‘wholly lacked the capacity’ requirement, of which we can now say two things. First, we should read ‘wholly’ as simply adding emphasis to ‘lacked the capacity’—which should also lead us to ask whether such purely emphatic (or rhetorical, we might say) language belongs in a statute. Second, the capacity that a defendant must have wholly lacked is not one of the three specified in the Commission’s definition of the defence: what he must have wholly lacked is the capacity to conform his conduct to the relevant law (to put it in the terms favoured by the Commission), or to guide his conduct by the legally relevant reasons (to put it in the terms that I would prefer). It might be useful for a statute to give some further guidance as to what is to count as, or what could ground, such an incapacity, and the three capacities specified by the Commission might be relevant here: for although I have not discussed, and will not try to discuss here, what is involved in a capacity to guide one’s conduct by some relevant type of reason, these sub-capacities are plausible candidates. But it should be made clear, if they are to be mentioned in the statute, that they need not be totally lacking: the defendant must, the statute might say, have (wholly, utterly) lacked the capacity to conform his conduct to the relevant law, because of some radical impairment or deficiency in at least one of these three sub-capacities. This leads us to the next issue to be discussed. Suppose that sufficient evidence is adduced that a defendant ‘totally lacked capacity to conform to the relevant law’: should that not suffice to secure him an acquittal, since

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‘a person should be exempted from criminal responsibility if he or she totally lacked capacity to conform to the relevant law’?14

3. Why Not Just an ‘Incapacity’ Defence? The Commission was sure that even a total lack of the relevant capacity at the time of the offence should not suffice for an acquittal: there must also be evidence that the incapacity was itself ‘a result of a qualifying recognised medical condition’. But what could justify this further requirement? Before discussing this question, however, we should first briefly attend to the question of whether, or why, we should have a special defence for those suffering from such an incapacity at all. Should we not deal with such cases simply by acquitting defendants who cannot be proved to have committed the offence with the requisite mens rea (which will cover many of those who lack that rational capacity); and convicting those who did provably commit the offence with the requisite mens rea, but taking due note of any rational incapacity at the sentencing stage (which could include subjecting those with a continuing incapacity to a Hospital Order)? The Commission was certain that we should retain a special defence for such defendants, and was surely right about this—but not always for the right reason. It gave three arguments for retaining such a defence.15 First, even where the defendant’s incapacity was such that he lacked the requisite mens rea, a verdict based on the special defence would better ‘reflect the reality of what had happened’.16 Second, ‘public protection’ requires a special verdict, so that the court can if necessary order the defendant’s detention in a psychiatric institution, rather than having simply to release him—as it would have to if he was acquitted as lacking mens rea. Third, there will be cases in which the commission of the offence can be proved, and the defendant cannot offer any of the other existing defences, but in which it would be unjust to convict him given his incapacity. The first and third of these reasons are good ones, though the first raises some interesting procedural questions on which I will comment briefly in section 4. The first reason is partly a matter of fair labelling— making clear why the person is not to be convicted; but it is also grounded 14 15 16

ibid para 1.20. ibid ch. 2, especially paras 2.1-34. ibid para 2.22.

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in the oddity of trying to deal with cases of extreme rational incapacity within the orthodox schema of mens rea and actus reus. Suppose D killed his neighbour in the deluded belief that her body had been taken over by hostile aliens: are we to say that he acted with the mens rea required for murder, since he intentionally killed what he knew to be a human being; or that he did not do so, because he thought that he was killing a non-human alien? To try to answer that question, we would need to explore in some detail the precise content of his beliefs about the implications of such alien take-overs: but that would be a bizarre way of trying to decide the case. As Fingarette and Hasse have argued,17 rational incapacities negate what the normal requirements of mens rea presuppose, an agent with ordinary rational capacities: absent such capacities, it is pointless, or perhaps even normatively senseless, to ask whether the defendant satisfied those requirements. The second reason, however, is a bad reason, and leads to the conflation of two questions that should be kept apart. One question is whether this person should be held criminally responsible for his alleged commission of the offence charged: the answer to that question requires consideration of his condition and capacities at the time of and in relation to the alleged crime. The other question is whether he is now, at the time of his trial, in a condition that would warrant his detention for reasons of public (or his own) safety: the answer to that question requires consideration of his condition at the time of his trial, whether he is now suffering a kind of rational incapacity that suffices to defeat the normal presumption of liberty, and whether he is likely, if freed, to harm himself or others. The criminal court is equipped to address the first question, but the second is one for a civil court, through the process of civil detention. The Commission saw two problems with this view. First, if the criminal court could not detain the defendant, ‘a short but dangerous time gap would arise between the moment of acquittal and the making of a civil order for admission’. 18 But, as the Commission recognised, it would be easy to give the criminal court power to order the defendant’s temporary detention pending a proper civil order—for instance under the existing provisions for ‘emergency’ admissions.19 The second reason offered was that the criminal court can impose a ‘restriction order’ (which cannot be imposed in civil detention), which makes the 17

Herbert Fingarette, Ann Fingarette Hasse, Mental Disabilities and Criminal Responsibility (Oakland: University of California Press, 1979); see Law Com DP, 2013 (n 2) paras 2.19-20. 18 Law Com DP, 2013 (n 2) para 2.26. 19 Mental Health Act 1983, s. 4.

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person’s release depend on the Secretary of State rather than merely on the doctor or the hospital, and thus makes it easier to continue detention so long as this is thought necessary for public safety. But restriction orders are deeply problematic, especially when imposed not on people who have been convicted of an offence,20 but on people who have been found ‘not guilty’—even if their lack of guilt is due to a rational incapacity caused by a medical condition. If a person is properly convicted of, and held fully responsible for, a criminal offence, he is then liable to kinds of legal coercion to which citizens are not normally liable, which might make room for a restriction order that constrains his release from psychiatric detention—we cannot discuss the plausibility of this suggestion here. But if he is precisely found not to be criminally responsible for committing an offence, why should he be liable to any kind of coercion beyond that to which he could be liable through the process of civil detention? If he can be shown to be a danger to himself or to others by virtue of some mental disorder or rational incapacity that he suffers, his detention might be warranted; and his past commission of a criminal offence, as a result of that disorder or incapacity, might well be relevant as evidence of his present and future dangerousness. But it is hard to see how it could properly have anything other than such an evidential bearing on his detention, unless we are to treat him still as someone whose culpable responsibility is not really being denied—which would be inconsistent with the criminal court’s finding of non-responsibility. (It then becomes unclear that we should have a special verdict, rather than a simple acquittal, since the obvious point of a special verdict is to pave the way for detention; I return to this issue in section 4.) However, a concern for fair labelling, and the need to provide a defence for those whose rational incapacities should preclude conviction but do not (or not straightforwardly) negate any element of the offence, or bring the defendant under an existing defence, are enough to justify retaining the special defence—which is not yet, as I noted above, enough to justify a special verdict other than an acquittal. The question I now want to address concerns the form of that defence. Do we need both requirements: that the defendant suffered a relevant rational incapacity, 20

This is a precondition for the imposition of both hospital orders and restriction orders under the Mental Health Act 1983, ss. 37, 41—with the curious exception that if a magistrate’s court ‘is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him’ (s. 37(3)).

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and that this was ‘as a result of a qualifying recognised medical condition’? The Commission makes clear that the first step in offering and determining this defence should be the provision of evidence by the defendant that he totally lacked a relevant rational capacity. 21 Suppose then that a defendant adduces persuasive evidence that at the time of the alleged offence he totally lacked a relevant capacity; suppose, indeed, that he does more than the Commission’s proposals require, and proves (at least on the balance of probabilities) that he lacked the capacity, and thus ‘totally lacked capacity to conform to the relevant law’. This is not enough to preclude his conviction: the court must then, as the second step, ask whether that incapacity resulted from ‘a qualifying recognised medical condition’. But the second step is surely either entirely otiose or manifestly unjust. The second step would be otiose if anyone suffering from a relevant (total) incapacity would, necessarily, thereby be suffering from ‘a qualifying recognised medical condition’. Now there is certainly room for argument about this, at least if we leave aside the ‘qualifying’ requirement, which I will discuss shortly. An incapacity is a ‘condition’, and could be argued to be a medical condition in that it is a kind of condition in which doctors (whether physical or psychiatric) have a proper interest: being incapacitated, in a way that undermines the ability to lead an ordinary or normal life, is a way of lacking health—of being ill, disordered, or deficient. 22 As to being a ‘recognised’ condition, the Commission’s concern was to guard against ‘idiosyncratic notions of what constitutes a medical condition’, and ‘deter (…) spurious defences’, by requiring the condition to be one ‘recognised by professionals in the relevant field’.23 One might object that we should not build an essentially evidential concern into the definition of a defence, but the requirement does not seem substantially problematic, since it is hard to imagine what could constitute adequate evidence of a relevant incapacity other than the identification, by experts, of what would count in the (very) broad sense suggested here as a

21

See the flow chart on page 95 of the Law Com DP, 2013 (n 2): the court must first decide whether there was adequate evidence of lack of capacity, and then turn to the issue of ‘a qualifying recognised medical condition’. 22 Bearing in mind that we must distinguish an incapacity, which must be a less than momentary condition, from a perhaps momentary or very short-lived inability to exercise capacities that one has. 23 Law Com DP, 2013 (n 2) para 4.67.

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‘medical condition’—an identification that would lack persuasive force if it would not be shared by other professionals in the field. However, the Commission did not regard the second step as otiose: it contemplated there being cases in which the first step is completed, by the provision of adequate evidence of a total lack of relevant rational capacity; but the defence fails at the second stage because the incapacity cannot be attributed to ‘a qualifying recognised medical condition’. But what could justify the conviction of a person who utterly lacked the capacity to conform his conduct to the law: isn’t this precisely a person who, the Commission has insisted, should not be convicted?24 One rationale offered for imposing any limit on the availability of the defence to one who lacked a relevant capacity was to rule out those cases in which the defendant was ‘culpably responsible for that lack of capacity’ by disqualifying ‘conditions which necessarily conflict with [the] underlying principle’ that non-culpable lack of capacity should preclude criminal responsibility. 25 There is much to be said (and much has been said) about how the criminal law should treat defendants who culpably cause the conditions of their own defence—who culpably bring about, for instance, an incapacity that, when non-culpably caused, would bar liability; but we need not add to that discussion here. All we need note is, first, that since the criminal law already includes ‘the principle of prior fault’, the defence will ‘not be available to any person who has culpably caused his or her total loss of capacity’, 26 without adding a specific requirement of ‘no prior fault’ into the defence’s definition. Second, the conditions that the Commission ‘provisionally proposes’ should not qualify, namely ‘acute intoxication or any condition which is manifested solely or principally by abnormally aggressive or seriously irresponsible behaviour’, 27 are not necessarily caused by the person’s own culpable prior conduct. And third, any ‘recognised medical condition’ could, in principle, be caused by the person’s own culpable prior conduct. Why else should the law deny the defence to someone who lacks the relevant capacity? The examples offered by the Commission do not persuade. One kind of example, which bears on the ‘recognised medical 24

ibid para 1.20; text (n. 14) above. ibid para 3.14. 26 See ibid paras 3.14, 4.124. 27 ibid para 4.161. This suggests that the exclusion of these conditions is to be written into the statutory defence (see paras. 4.112-116); elsewhere (para 4.128) the suggestion is rather that a ‘court may … hold that’ such conditions are not qualifying conditions, which would avoid the objection raised here. 25

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condition’ requirement, is that ‘“[a]bnormal” physical and mental states’, for instance those produced by ‘shock or bereavement’, which ‘are not so severe as to trigger a medical condition’ (for instance a condition of ‘posttraumatic stress disorder’) are not enough to ground the defence.28 Now we might well expect that shock and bereavement, and other serious misfortunes that can afflict us, would not render a person eligible for this defence; but that is because we do not expect them utterly to destroy the relevant rational capacity. If we found a case in which this did happen, and in which the shocked or bereaved person committed a crime because of that incapacity, why should we deny him a defence?29 The other example of non-qualifying conditions is that of ‘any condition which is manifested solely or principally by abnormally aggressive or seriously irresponsible behaviour’.30 The concern here is with ‘antisocial personality disorders’, in particular with ‘psychopathy’: it seems that the Commission wanted to make sure undeserving cases did not get through under the new defence, and perhaps also that courts did not get bogged down in controversy about such conditions. But the provisional proposal does not achieve those aims. The Commission decided, for good reason, not to specifically exclude ‘psychopathy’ or ‘anti-social personality disorder’, as qualifying conditions: 31 but its preferred formulation, of conditions ‘manifested solely or principally by abnormally aggressive or seriously irresponsible behaviour’, does not help. If all that can be said about the defendant’s condition is that he regularly or habitually displayed ‘abnormally aggressive or seriously irresponsible behaviour’, no evidence has been given of a lack of rational capacity; and if such evidence is provided, then the condition is not simply ‘manifested solely or principally by abnormally aggressive or seriously irresponsible behaviour’, since it is manifested in or shown to involve a lack of capacity. Second, those who think that ‘psychopathy’ or (some kinds of) ‘antisocial personality disorder’ should at least sometimes exempt a person from criminal liability will argue precisely that they should do so because they involve a lack of rational capacity, and are not ‘manifested solely or principally by abnormally

28

Law Com DP, 2013 (n 2) para 4.60. Of course, if the shock or bereavement did have that effect, the person might be said to be suffering from ‘post-traumatic stress disorder’; but that just reinforces the suggestion I made above—that anyone suffering a rational incapacity of the relevant kind could count as suffering a ‘recognised medical condition’. 30 See Law Com DP, 2013 (n 2) paras 1.190, 3.16, 4.102-8, 4.128, 4.161. 31 ibid para 4.108. 29

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aggressive or seriously irresponsible behaviour’: 32 the Commission’s proposal will not save courts from having to deal with such arguments. We can conclude from this discussion that the new defence ought not to be a ‘recognised medical condition’ defence. It ought to be a ‘lack of rational capacity’ defence, which would be available to anyone whose commission of the offence could be attributed to their lack of rational capacity to conform their conduct to the relevant law, or to guide their conduct by the reasons that, according to the law, bear on their conduct. If that incapacity can be ascribed to the defendant’s prior fault, the appropriate general principles of prior fault should come into play; but they need not figure in the formal definition of the defence. More generally, this suggests that we do not need a distinct defence of ‘mental disorder’, or of ‘insanity’, or of ‘recognised medical condition’, This is not because, as some critics of the insanity defence argue, any cases that merit acquittal can be dealt with through other legal doctrines— either lack of mens rea or another defence; we do need a specific defence to deal with distinctive cases of lack of rational capacity. But the defence should then be labelled and treated precisely as that; there should be no formal requirement for proof of mental disorder, insanity, or ‘recognised medical condition’. This suggestion then raises (as do the Law Commission’s proposals) further questions about just how such a defence should operate in the criminal process. In particular, should it lead to a special verdict, rather than simply to an acquittal? And just where and how should the defence be led? These will be the topics of the next section.

4. Rational Incapacity and the Criminal Process Why should we raise the questions that I raised at the end of the previous section? Why, that is, should a ‘rational incapacity’ defence not operate in just the same way, with the same effect, as any of the other existing general defences? This would mean, in terms of the logical structure of the trial, that if the prosecution proves (or the defendant admits) the commission of the offence charged, the defendant may then

32 For a useful recent collection on psychopathy, see Luca Malatesti and John McMillan (eds.), Responsibility and Psychopathy (Oxford: Oxford University Press, 2010).

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offer this defence to rebut liability;33 and, if the defence succeeds, it results in a simple acquittal. I have discussed and rejected one objection from the Law Commission to this suggestion: that it would not allow a court to order a defendant’s detention for the sake of public safety.34 Another reason might be to do with fair labelling—that a bare acquittal does not make clear why this defendant should not be convicted. That objection, however, does not address this defence in particular, but is a general objection to the form of verdicts in our criminal trials—that they never make explicit why the defendant is being acquitted (or indeed explicitly why he is convicted; but it is in principle easy to infer from the conviction that every element of the offence was taken to be proved, and no defence was taken to have succeeded). There are arguments to be had about whether all verdicts should be more discursively explanatory, and whether this is feasible for jury verdicts: but it does not give us reason to require a specially labelled verdict just in cases of rational incapacity. There are, however, two other (related) reasons, one of which we touched on earlier, for not treating ‘rational incapacity’ simply as one among other defences. One reason, already noted, is that the prosecution would then have to prove the elements of the offence: but there would be something bizarrely misguided in some cases (for instance those in which the defendant acted under a radical psychotic delusion) in asking whether the defendant satisfied the mens rea requirements of the offence.35 The other, related but broader, reason is that the logic of rational incapacity as a bar to conviction is quite different from that of other, familiar general defences that can be classed as justifications or excuses.36 A defendant who offers a justificatory or excusatory defence (such as self-defence, or duress, or necessity) implicitly admits the commission of the offence charged: he admits his responsibility for that offence, in that he implicitly admits that he must answer for it; and he offers an answer—the justification or excuse—which he hopes will be suitably exculpatory, and so block the usual inference from responsibility to liability. His answer 33

For this view of the logical structure of the criminal trial, see RA Duff, Lindsay Farmer, Sandra Marshall, Victor Tadros, The Trial on Trial (3): Towards a Normative Theory of the Criminal Trial (Oxford: Hart Publishing, 2007); RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart Publishing 2007). 34 See text at nn. 17-19 above. 35 See text at nn. 16-17 above. 36 See Law Com DP, 2013 (n 2) paras A.103-113.

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will refer to his reasons for acting as he did, in that particular situation; his claim is that once his action is understood, in terms of the reasons for which it was done (his reasons), it will be seen that he does not merit conviction.37 But that is not the kind of defence offered by one who pleads rational incapacity: rather than answering for his commission of the offence, by providing a reason-based explanation that he hopes exculpates him, he is denying that he can be expected to answer for it. He denies rational authorship of his conduct, which is to say that he denies not merely liability, but responsibility. In one way, his position is like that of someone who is unfit to plead (and many of those for whom the rational incapacity defence could be claimed will of course not even face trial, since they will suffer a continuing incapacity that bars their trial):38 he denies that he is, or should be held, responsible for the offence he is alleged to have committed. The difference between the two situations is simply this: someone who is unfit to plead is not to be held responsible because he is not now capable of answering for his past actions (actions for which he might, if his incapacity came on after his alleged commission of the offence, have been culpably responsible); someone who, though now fit to plead, offers a defence of ‘rational incapacity’ is not to be held responsible not because he cannot answer for his actions generally, but because he cannot be expected to answer for those actions. So perhaps we should treat ‘rational incapacity’ not as a defence, which presupposes the commission of the offence, but instead as (something like) a bar to trial:39 we should not try this defendant for this alleged offence not because (as in cases of unfitness to plead) he is incapable of answering, but because he cannot answer for the conduct alleged to constitute the offence. I can answer only for conduct that falls within my rational authorship; a defence of rational incapacity precisely claims that the conduct in question was not within my rational authorship. If we went down this route, an asserted ‘defence’ of rational incapacity would need to be decided at the start of the trial; 40 maybe not, strictly speaking, at the same time as any claim of unfitness to plead, since a defendant claiming rational incapacity at the time of the alleged offence 37

To say this is of course to take a particular stand on the ‘deeds versus reasons’ debate about justifications in the criminal law; for an explanation and defence, see Answering for Crime (n. 33 above), 277-84. 38 See Rudi Fortson and Ronnie Mackay in this volume (chapters one and two). 39 On the significance of bars to trial, see Answering for Crime (n. 33 above), ch 8. 40 The quotation marks round ‘defence’ are now appropriate; see Law Com DP, 2013 (n 2) para A.103.

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might be fit to plead at the time of his trial, but before a trial of the charge that he did commit the offence. This solution might seem unsatisfactory, since it would require the defendant to offer his ‘defence’ before the prosecution has proved the commission of a crime for which he would then need to offer a defence, and so puts him in a worse position than other defendants. For the prosecution might not be able to prove that he was in any way involved in the alleged offence—perhaps he has an alibi: why should he have to offer evidence of his own lack of rational capacity (thus incurring the material burdens associated with this, and the possible embarrassment, to put it no stronger than that, of so publicly revealing his misfortune)? This supports the proposal in the Discussion Paper that the prosecution should have to prove at least ‘that the accused had done something which would lead to his or her conviction if not for his or her medical condition’.41 On the other hand, the problem might also be avoided by simply allowing the defendant to offer the defence at any stage in the proceedings: he could offer it before the start of the prosecution’s case (in effect or by implication admitting the commission of the offence);42 or he could offer it after the prosecution has introduced enough evidence to prove, or to render plausible, the charge that he did commit the offence.43 What then should the outcome be, if the ‘defence’ succeeds? One who is found unfit to plead is not acquitted: he is not tried (which means that he could be tried if he later became fit without this amounting to double jeopardy). But one whose ‘defence’ of rational incapacity succeeds should surely be acquitted. The question is whether he should simply be acquitted, or should receive a specially labelled verdict of ‘not guilty by reason of rational incapacity’. The Law Commission proposes not even a qualified ‘not guilty’ verdict, but a ‘not criminally responsible’ verdict;44 but if the person was genuinely not responsible, we should be prepared to 41 ibid para 3.9; see also para 4.125. This wording was designed to avoid the problem noted above, of requiring the prosecution to prove mens rea. 42 For the reasons already given, ‘commission’ might have to be understood in a qualified sense. 43 There would of course be issues about giving notice that would need to be sorted out. 44 Law Com DP, 2013 (n 2) paras 3.26-9: the only reason given for preferring ‘not criminally responsible’ to ‘not guilty’ was that ‘the essence of the plea is that the defendant claims not to be criminally responsible’; but that seems a confusion, since, we could say, the claim of non-responsibility is what is meant to justify a ‘not guilty’ verdict.

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say formally that he is ‘not guilty’. I argued above that there is no good reason to introduce a special verdict for such cases: the outcome should be a simple ‘not guilty’.

5. Conclusion I have argued that Stanton-Ife’s main objection to the Law Commission’s proposals is not as serious as he suggests. Once we make clear—clearer than the Commission makes—what the key capacity is (the master capacity to conform one’s conduct to the relevant reasons) we can see that whilst the qualifying ‘totally’ is strictly unnecessary, it can add emphasis to the requirement that the defendant, in virtue of some radical impairment of one or more of the relevant sub-capacities, was incapable of guiding his conduct by the relevant kinds of reason. However, I have also argued that there is a larger defect in the Commission’s proposed new defence: what we need is not a ‘recognised medical condition’ defence, which requires both a lack of capacity and a recognised medical condition that grounds it, but simply a one-stage ‘lack of rational capacity’ defence, which should be available (subject to the principle of prior fault) to anyone who lacked the appropriate rational capacity. Furthermore, I have argued, such a defence should, if successful, result not in a special verdict, but simply in an acquittal; if there is a need to detain the person for the sake of public (or his own) safety, that should be done through the existing procedures for civil detention. It is indeed time, therefore, to abolish the insanity defence—in favour not of the ‘recognised medical condition’ defence proposed by the Law Commission, which still sticks too closely to the structure of the insanity defence, but of a simple defence of ‘lack of rational capacity’.

CHAPTER SEVEN QUASI-INVOLUNTARY ACTIONS AND MORAL CAPACITY: THE NARRATIVE OF EMOTIONAL EXCUSE AND PSYCHOLOGICAL-BLOW AUTOMATISM ALAN REED Introduction An article by Jeremy Horder in the Cambridge Law Journal in 1993 identified that the law is unduly restricted by the limited and ill-defined grasp of its understanding of identification of harmful conduct for which individuals are not responsible, or may in particularised circumstances have a full or partial excuse. 1 Further grist to the mill is added by the constrained treatment of involuntary lack of capacity, viewed through a blunt legal prism of acquittal on the premise only of insane or non-insane automatism.2 Horder suggested that rectification and revivification of the underlying scope of lack of capacity was urgently needed, developed centrally around an irreducible core of moral responsibility, in order to

1

Jeremy Horder, ‘Pleading Involuntary Lack of Capacity’ (1993) 52 Cambridge Law Journal 298. 2 See Victor Tadros, ‘Insanity and the Capacity for Criminal Responsibility’ (2001) 5 Edinburgh Law Review 325, 347: ‘There are two important components to capacity – responsibility in the criminal law. These are the capacity to be rational and the capacity for self- control. This is because these two capacities are fundamental to the capacity of the agent to restructure their behaviour in a way that has a sufficient degree of sensitivity to the wrongfulness of actions.’

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provide the judiciary with a more sophisticated armoury of remedies to deal with differing strands of individuated blameworthiness.3 More than two decades later, these fundamental issues remain unresolved and, as it stands currently, excusatory principles related to lack of moral capacity and responsibility are still shoe-horned into categorisations of a by-gone era, formulated into a binary divide between wholly involuntary or voluntary conduct that is almost illusory and certainly illogical.4 The focal inquiry has concentrated too much on the control element for exculpation, and not enough on the narrative attached to emotional excuse presentation of any defence. 5 The law on full or partial denial of responsibility stands at a crossroads, and recently there have been substantial cries that it reflects a biased order in need of new perspectives.6 The fundamental issue at the heart of this chapter is whether the law has the apposite formulation to delineate between individuals who ought to be inculpated for what they have done, and those who must be excused because of a lack of moral capacity. 7 This is reflective, as the Law Commission have recently stated, 8 of a more nuanced evaluation of 3 Horder (n 1) 298-299; and see Jeremy Horder, ‘Criminal Law: Between Determinism, Liberalism and Criminal Justice’ (1996) 49 Current Legal Problems 159. 4 See generally, John Gardner, ‘The Mark of Responsibility’ (2003) 23 Oxford Journal of Legal Studies 157; Nicola Lacey, ‘Psychologising Jekyll, Demonising Hyde’ (2010) 4 Criminal Law and Philosophy 109; Stanley Yeo, ‘Putting Voluntariness Back into Automatism’ (2001) 32 Victoria University of Wellington Law Review 387; Andrew P Simester, ‘On the So-called Requirement for Voluntary Action’ (1998) 1 Buffalo Criminal Law Review 403; and Deborah W Denno, ‘A Mind to Blame: New Views on Involuntary Acts’ (2003) 21 Behavioural Sciences and the Law 601. 5 Suzanne Uniacke, ‘Emotional Excuses’ (2007) 26 Law and Philosophy 95. 6 See Holly Phoenix, ‘Automatism: A Fading Defence’ (2010) 56 Criminal Law Quarterly 328; Douglas Husak, ‘The Alleged Act Requirement in Criminal Law’, in The Oxford Handbook Of Philosophy Of Criminal Law (Oxford Press, 2011) 107; and Arlie Loughnan, ‘Mental Incapacity Doctrines in Criminal Law’ (2012) 15 New Criminal Law Review 1. 7 See Sanford H. Kadish, ‘Excusing Crime’ (1987) 75 California Law Review 257; and Paul H. Robinson, ‘A System of Excuses: How Criminal Law’s Excuse Defences Do and Don’t, Work Together to Exculpate Blameless (and only Blameless) Offenders’ (2009) 42 Texas Tech Law Review 259. 8 Law Commission, Criminal Liability: Insanity And Automatism (Discussion Paper, July 2013) paras 1.18-1.20.

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blameworthiness in that criminal responsibility is a moral question rather than a scientific one, because it reflects the nexus between the individual actor and the state, about the attribution of culpability, and appropriateness of public condemnation.9 Hart has identified the embodiment of criminal responsibility in this arena: What is crucial is that those we punish should have had, when they acted, the normal capacities, physical and mental for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities. Where these capacities and opportunities are absent, as they are in different ways in the varied cases of accident, mistake, paralysis, reflex action, coercion, insanity etc., the moral protest is that it is morally wrong to punish because ‘he could not have helped it’ or ‘he could not have done otherwise’ or ‘he had no real choice’.10

The supererogatory principle is that an individual is not criminally responsible for involuntary conduct, because he or she lacked the capacity to do otherwise, in other words the accused lacked ability to control behaviour, denying responsibility. 11 Automatism is the nomenclature utilised in extant law to describe involuntary behaviour, reflecting a total lack of control, the state of a person who, though capable of action lacks effective control of what she is doing. 12 It means an uncontrolled involuntary act where the mind does not go with what is being done: ‘an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is 9

ibid, paras 4.119 – 4.120. H.L.A. Hart, Punishment And Responsibility (1968) 152. 11 Note in the context of the American Law Institute Model Penal Code, an individual ‘is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirement of law’; see, Erin J. Gower, ‘Iraq as a Psychological Quagmire: The Implications of Using Post-Traumatic Stress Disorder as a Defence for Iraq War Veterans’ (2008) 28 Pace Law Review 561, 575; and see generally, Melissa Hamilton, ‘Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder’ (2011) 16 Berkeley Journal of Criminal Law 340. 12 See Smallshire [2008] EWCA Crim 3217 [8] per Andrew Smith J, succinctly articulating that the ‘defence’ of automatism is: ‘A complete loss of voluntary control that is not caused by what the person could reasonable foresee, and is not self-induced incapacity or one that is a result of a disease of the mind.’ 10

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not conscious of what she is doing, such as an act done whilst suffering from concussion or whilst sleepwalking.’13 As identified, it may embrace the epileptic, the diabetic and the somnambulist. 14 Internal causes for automatistic behaviour are standardised as insane automatism, whereas non-insane automatism equates to causes produced by externally verifiable conditions.15 An individual is not criminally responsible where they lack capacity to control their actions: ‘persons are responsible and deserve punishment only for those states of affairs over which they exercise control.’16 As Wilson has cogently stated, it has been this lack of control which has received primordial effect, and involuntary actions which excuse the accused, ‘encompass cases where the physical cause of a person’s behaviour is an event outside that person’s control.’17 The difficulty, however, is that loss of control is contextualised as automatistic behaviour in black and white shades of involuntary/voluntary conduct, and with heterologuous derivations purely from either internal or external causes. The reality is that more distinctive hues apply to lack of capacity, not currently reflected in existing precepts, but constitutively related to semi-voluntariness and embodied as a partial lack of control, to 13 Bratty v Attorney-General for Northern Ireland [1963] AC 386, 409 per Lord Denning. See Husak (n 6) 118, asserting that: ‘The act requirement is designed to serve as a constraint on justified impositions of penal liability. It serves this function because it purports to confine the punitive sanction to those matters over which it is fair to hold persons responsible. The challenge for commentators is to specify the necessary conditions for criminal responsibility.’ 14 See Phoenix (n 6) 363: ‘Automatism cases touch upon some of the most fundamental legal principles that our justice system has come to rest upon: the presumption of innocence; the right to trial by jury; the evidentiary and persuasive burdens of proof; the appropriate role of trial judges and the courts; and the use of policy considerations in determining issues of law and of fact’; and see generally, David M. Paciocco, ‘Death by Stone-ing: The Demise of the Defence of Simple Automatism’ (1999) 26 Criminal Reports 273. 15 See generally, Stephen J Morse, ‘Culpability and Control’ (1994) 142 University of Pennsylvania Law Review 1587; and Kevin W Saunders, ‘Voluntary Acts and the Criminal Law: Justifying Culpability Based on the Existence of Volition (1988) 49 University of Pittsburgh Law Review 443. 16 Douglas Husak, ‘Does Criminal Liability Require an Act?’, in RA Duff (ed), Philosophy And The Criminal Law (1998, Cambridge University Press) 60, 75. 17 William Wilson, ‘Impaired Voluntariness: The Variable Standards’ (2003) 6 Buffalo Law Review 1011, 1027; and see generally, K.J.M. Smith and William Wilson, ‘Impaired Voluntariness and Criminal Responsibility’ (1993) 13 Oxford Journal of Legal Studies 69.

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which a new via media exculpatory mechanism should be promulgated. The position is re-evaluated in the sphere of emotional trauma and psychological-blow automatism, recently highlighted in a series of AngloAmerican cases where commended military personnel, returning from tours of Iraq or Afghanistan, have killed civilians and family members whilst suffering from post-traumatic stress disorder (P.T.S.D.) 18 A new excusatory affirmative defence is suggested, applying more extensively to dissociative states, and more particularised within loss of control in general. The reform suggestion advanced provides equipoise for quasiinvoluntary actions, currently occupying the legal hinterland that Horder has identified, between the purely involuntary and the fully voluntary and deliberate acts of the accused.19 In truth, as highlighted in this chapter, a wider spectra applies to involuntary behaviour and moral evaluation of capacity; gradations range from a strict deontological interpretation of involuntariness to detonative (metaphorical) loss of control.20 In this continuum automatism within the former categorisation is conceptually different from other types of excuses in that, as structured, the loss of control must be total and involuntary: ‘it is not something the individual chooses to do but something which happens to him.’ 21 Detonative involuntariness, however, is wholly different in kind, and loss of control is metaphorical engaging general and partial excuses in this taxonomy, notably provocation, mistake, some

18 See generally, Benjamin J Kormos, ‘The Post-traumatic Stress Disorder Defence in Canada: Reconnoitring The Old Lie’ (2008) 54 Criminal Law Quarterly 189. 19 See Jeremy Horder, ‘Reshaping the Subjective Element in the Provocation Defence’ (2005) 25 Oxford Journal of Legal Studies 123, 127. 20 See Wilson (n 17) 1026 who highlights and identifies this dichotomy: ‘The courts draw this distinction between literal and metaphorical involuntariness for a good reason. If the basis of the defendant’s claim to avoid censure and punishment is that his admitted action is not blameworthy then it is necessary to subject that claim to critical moral scrutiny so that the range of defences on offer reflect our moral judgment.’ Detonative involuntariness is utilised in this chapter as a construct where D suffers extreme stress triggering an explosive disinhibition and partial loss of capacity. 21 ibid 1025; and see generally, John Gardner, ‘The Gist of Excuses’ (1998) 1 Buffalo Criminal Law Review 575; Ron Shapira, ‘Structural Flaws of the Willed Bodily Movement Theory of Action’ (1998) 1 Buffalo Criminal Law Review 349; and Bernard Williams, ‘Moral Responsibility and Political Freedom’ (1997) 56 Cambridge Law Journal 96.

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forms of duress, diminished responsibility and mercy killings.22 The focal inquiry for excuse relates to the blameworthiness of the defendant’s actions, and consequently it is essential to morally evaluate lack of capacity and responsibility, or otherwise, as part of normative standardisations.23 Blame and censure for detonative involuntariness, contrasted with strictly deontological perspectives, is viewed through a different kaleidoscope, although integrally linked in a chronological strata.24 Where duress applies, the ‘actor’ is faced with dire personal consequences and breaks the law to prevent threatened harms. It is important to consider moral normative excuse in the parameters of legitimate societal expectations of the coerced actor, and control or otherwise is assessed in a different topographical construct.25 A choice, albeit of a constructed nature operates, and the defence is predicated on confession and avoidance. Provocation, like duress, operates as a concession to human frailty, and as with mercy killing, should find its simulacrum within emotional excuse.26 The legal topography of involuntariness fits within this continuum of 22 ibid 1041, where Wilson concludes: ‘[T]he voluntariness requirement in English criminal law is simply the extreme case on a spectrum of excuses incorporating less direct claims of involuntariness.’ 23 ibid. 24 See Uniacke (n 5) 112 who asserts: ‘A person who lacks a sufficient or fair opportunity to control his emotion-based reaction lacks both a sufficient and a fair opportunity. Someone who is immediately confronted by gross provocation or by a grave threat can be said to lack a sufficient opportunity to control his emotionbased reaction’. 25 ibid. Uniacke states that: ‘In a case of duress, there is an immediate, intensely confronting threat sufficient to cause extreme fear in a morally well-disposed person of normal cognitive and volitional capacities. A person so confronted may not have had sufficient or fair opportunity to avert or avoid the threat or to (take steps to) exert the degree of fortitude necessary to comply with the law. Arguably such circumstances can provide an exculpating explanation of a person’s encumbered ability to resist his fear of a human threat that is wrongfully imposed’; and see generally, Suzanne Uniacke, ‘Killing Under Duress’ (1989) 6 Journal of Applied Philosophy 53; and Joshua Dressler, ‘Exegis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits’ (1989) 62 Southern California Law Review 1331. 26 See Joshua Dressler, ‘Why Keep the Provocation Defence? Some Reflections on a Difficult Subject’ (2002) 86 Minnesota Law Review 959, 974, where the plea of provocation is identified in the context that an ordinary person, as a result of provocation, might become sufficiently upset as to ‘experience substantial impairment of his capacity for self-control and, as a consequence, to act violently.’

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deontological and more peripheral detonative claims: holistically, it should operate, ‘when we are deprived of a fair opportunity to conform our behaviour to the law and for reasons which do not compromise our system of morality and law enforcement.’27 Detonative involuntariness is appraised as part of a wider consideration of the limits of emotional excuse and moral capacity questions, specifically relating to sexual infidelity and mercy killings. 28 As with psychological-blow automatism, a new reform pathway is chartered, acknowledging a broader extreme emotional distress defence, and not simply linked to imperfect retributive anger or fear, the only emotions legitimated as deserving a partial defence in the Coroners and Justice Act 2009. 29 A more enlightened review is needed by our legislature of different emotional narratives embracing grief, despair, breach of trust, sexual humiliation, and extreme shock-all of these intense emotions are forms of extreme stress which can trigger an explosive disinhibition and partial loss of capacity, requiring a wider range of disposal powers. The basic claim is that certain types of emotional response never excuse wrongdoing as they are standardised as ‘morally inappropriate’ – this pantheon will encompass sexual jealousy, revenge, envy and male proprietorialness. 30 However, other types of emotional responses may provide a partial excuse, dependent on categorisation within the parameters – widely drawn – of societal expectations and legitimate moral capacity determinations by fact-finders. The emotional narrative in terms of disproportionate angry reaction to provoking stimuli, contextualisation of sexual humiliation or breach of trust, and even extreme grief despair and frustration attached to witnessing the pain and suffering of a cherished 27 Wilson (n 17) 1041. 28 See generally, Alan Reed and Nicola Wake, ‘Sexual Infidelity Killings: Contemporary Standardisations and Comparative Stereotypes’ in Loss Of Control And Diminished Responsibility: Domestic, Comparative And International Perspectives (Ashgate Press, 2011) 115. 29 ibid. 30 See generally, Andrew Ortony and Terence J Turner, ‘What’s Basic about Basic Emotions?’ (1990) 97 Psychological Review 315; and Jeremy Horder, Provocation And Responsibility (Oxford: Clarendon Press, 1992). The U.S. Model Penal Code allows that ‘[a} homicide which would otherwise be “murder” can constitute manslaughter if “committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse”’; see American Law Institute, Model Penal Code (American Law Institute, 1985), section 210.3(1)(b).

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individual, ought to be evaluated by the jury as moral arbiters. 31 A different appraisal of the ambit of the extreme emotional distress defence is urgently needed, presenting a partial loss of capacity as appropriative with reduced culpability, and identifying a more reasonable understanding of detonative involuntariness across a broadened range of excusatory extreme emotions, attendant to fair labelling and appropriate blameworthiness.32 This accords with the propositions and arguments that Kadish has previously raised on the inculcated schema that should apply to excusing crime: ‘[E]xcuse is one of those central concepts that serve to draw the line between the blameworthy and the blameless and to make a blaming system possible’, and further that, ‘some disability in my freedom to choose the right makes it inappropriate to punish me.’33

Automatism and Total Loss of Control: Arbitrary Distinctions and Isomorphic Delineations The distinction between internal and external causes of automatic behaviour is not straightforward, and fails to make an apt divide between physical and mental disorders. 34 A bright-line binary categorisation has developed, linking non-insane automatism to involuntariness causally related to externally verifiable conditions, ‘some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences.’35 In 31 See Uniacke (n 5) 95-97. 32 See Peter Cane, Responsibility in Law and Morality (Hart, 2002) 65, who cogently opines: ‘It is generally agreed that a minimum level of mental and physical capacity is a precondition of culpability. A person should not be blamed if they lacked basic understanding of the nature and significance of their conduct, or basic control over it, unless their lack of capacity was itself the result of culpable conduct on their part.’ 33 Kadish (n 7) 257; and see Law Com DP, 2013 (n 8) 197: ‘[P]eople should not be held criminally responsible for their conduct if they lack the capacity to conform their behaviour to meet the demands imposed by the criminal law regulating that conduct. This lack of capacity might consist in an ability to think rationally, or in an inability to control one’s actions. The reason for that lack of capacity might lie in a mental disorder or in a physical disorder.’ 34 See generally, John Child and Alan Reed, ‘Automatism Is Never a Defence’ (2014) Northern Ireland Legal Quarterly, arguing that automatism does not comport to the ‘defence’ definitional construct but rather prior fault and inculpatory mechanisms. 35 Quick [1973] QB 910; and see generally, Ronnie Mackay and Barry J Mitchell, ‘Sleepwalking, Automatism and Insanity’ [2006] Criminal Law Review 901; John

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contrast, internal causes must have a derivation equating to a disease of the mind, and a holistic approach is taken with the underlying concern being whether societal protection requires the accused to undergo medical treatment.36 Automatism is couched in a veil of suspicion by the courts, and the dichotomous bifurcation created is often capricious. 37 This is illustrated, in particular, by the way the courts have treated diabetes and various types of dissociative states, engaging in an exercise of semantic line-drawing of the worst possible kind. 38 The law is in a state of impoverishment and duplicity.39 Defendants may be placed in divergent legal categories in spite of the fact that they acted in a similarly involuntary manner, and a diabetic may perform the actus reus of an offence, and yet be unaware of his actions either because of hyperglycaemia (high blood sugar level) or hypoglycaemia (low blood sugar level). Diabetes itself is clearly an internal factor. Hyperglycaemia is usually caused by failure to take insulin, in its absence the disease causes the blood sugar level to raise. It is, therefore, held that the blackout is caused by a disease of the mind, constitutively engaging insaneautomatism as in Hennessy.40 If the individual acts as an automaton as a

Rumbold and Martin Wasik, ‘Diabetic Drivers, Hypoglycaemic Unawareness and Automatism’ [2011] Criminal Law Review 863; and Nicola Padfield, ‘Exploring a Quagmire: Insanity and Automatism’ (1989) Cambridge Law Journal 354. 36 See generally, Alan Reed and Ben Fitzpatrick, Criminal Law (Sweet and Maxwell, 2009) 190-195. 37 See Phoenix (n 6) 329: ‘[A] successful defence of non-mental disorder automatism will result in the accused’s absolute and unconditional acquittal. Clearly this distinction is of the utmost importance to the accused. However, it has also attracted much scepticism from the judiciary. Concern for public safety and the apparent ease in feigning such a disorder are at the forefront of these judicial fears.’ 38 See Reed and Fitzpatrick (n 36) 191-192. 39 See Ronnie Mackay, Mental Condition Defences In The Criminal Law (Oxford University Press, 1995) 27, highlighting that mind/body distinctions are unhelpful in this regard: ‘Although neuroscience may help to explain some of the mechanics of voluntary action, this in itself will do little to assist us in our quest for a satisfactory legal analysis of automatism. There are two obvious problems. The first is theoretical and concerns the fundamental difficulty that although neuroscience may be able to produce an adequate physiological account of a particular movement, this is not the same as providing ‘an explanation of that movement as an action.’ 40 [1989] 2 All ER 9.

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result of a hyperglycaemic attack then he is insane within the meaning of the M’Naghten Rules. Hypoglycaemia, on the other hand, is not the result of the initial disease of diabetes, but is caused either by treatment in the form of too much insulin, or by insufficient food to counter-balance the insulin. The administration of insulin is an external factorisation, and as identified in Quick41 is equated to non-insane automatism. Thus, where involuntariness is the result of hypoglycaemia the defence of non-insane automatism is available; it is simply the equivalent of automatism being caused by a blow on the head.42 The counter-intuitive result is that a defendant may be stigmatised in a particular manner despite acting in a similarly involuntary fashion: ‘[T]here can be no sense in classifying hypoglycaemic states as automatism and hyperglycaemic states as insanity, when both states are as closely associated with a common condition as diabetes.’43 Moreover, as Wilson and others have stated, the absolutist separation created does not comport with diagnostic practice: The line-drawn between sane and insane automatism can never made medical sense: It makes illogical, hair-splitting distinctions inevitable, allowing some an outright acquittal while condemning others to plead guilty or take the risk of a special verdict.44

The dissonance between legal and medical conceptions of automatistic behaviour, and the negative absolutist separation identified, is exacerbated by the stringent legal requirement that the ‘defence’ only applies where the loss of control is total, and behaviour wholly involuntary.45 Sceptism over the legal ambit of this defence, and concern that fact-finders are open to denusion, has led to a mechanistic approach to the constructive elements of the ‘defence.’46 This is particularly notable in the degree of control that must be lost for a successful acquittal, inter-twined with the spatial 41 [1973] QB 910. 42 See Timothy H Jones, ‘Insanity, Automatism and the Burden of Proof on the Accused’ (1995) 111 Law Quarterly Review 475. 43 Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th edn, 2013) 94. 44 William Wilson, Irshaad Ibrahim, Peter Fenwick, and Richard Marks, ‘Violence, Sleepwalking and the Criminal Law (2): The Legal Aspects’ [2005] Criminal Law Review 614, 617. 45 See Child and Reed (n 34). 46 See Phoenix (n 6) 329-330.

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duration of loss of control.47 A rigid threshold level has been applied by appellate courts, both historically and more recently in C,48 that the loss of control gradation must be total. In C, it was clearly asserted by Hughes L.J. that for automatistic conduct, ‘the essence of it is that the movements or actions of the defendant at the material time were wholly involuntary. The better expression is complete destruction of voluntary control.’49 This followed the explicit assertion by Taylor L.J. in A-G’s Reference (No. 2 of 1992), a road traffic case, that, ‘impaired reduced or partial control is not enough.’50 This restrictive test has been consistently adopted where automatism has been raised as a defence to any road traffic offence charge. 51 In Broome v Perkins,52 for instance, the defendant had driven his car for a distance of about six miles but was unable to recall the journey at all. The state of his car revealed that he must have hit other vehicles and he therefore went to the police and was eventually charged with careless driving. Automatism was pleaded on the basis that he was a diabetic and his behaviour was consistent with a hyperglycaemic episode related to low blood sugar level. Evidence revealed that during the course of the journey he had collided with small vehicles but had missed larger ones, such as lorries. The Divisional Court said that there was no evidence of automatism because to a certain extent he had exercised some degree of conscious control over his vehicle when he reacted to large objects; his driving was not, therefore, totally automatic: When driving a motor vehicle, the driver’s conscious mind receives signals from his eyes and ears, decides on the appropriate course of action as a result of those signals, and gives directions to the limbs to control the vehicle. Where a person’s actions are involuntary and automatic his mind is not controlling or directing his limbs.53 47 See Law Com DP, 2013 (n 8) paras 5.22-5.32. 48 [2013] EWCA Crim 223. 49 ibid [22], citing Watmore v Jenkins [1962] 2 QB 572. 50 [1994] QB 91. 51 See Moses v Winder [1981] RTR 37, 41 where the automatism defence was rejected as D was ‘aware’ before commencing driving that he was susceptible to diabetic coma, and consequently Roskill L.J. stated that, ‘to allow a defence of automatism to succeed in a case of this kind would add greatly to the dangers to the lives and limbs of those on the roads.’; and see also, Isitt (1977) 67 Cr App R 44. 52 (1987) 85 Cr App R 321. 53 ibid 332.

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The rigid total loss of control criterion for road traffic cases has not been consistently applied to other offences, and a broader interpretation of impaired consciousness has occasionally been applied, albeit solipsistically.54 This wider perspective has received support from a number of leading commentators in other categorisations, including Williams who identified that an individual, ‘whose consciousness is badly impaired can have the defence of automatism even though he is still able to co-ordinate his movements.’55 In Charlson,56 the accused, whilst suffering from a cerebral tumour, was alleged to have hit his 10 year old son on the head with a mallet, and to have thrown him out of the window. He was acquitted on the basis of automatism, even though it was extremely unlikely that he exercised no control over his bodily motions, and he could recall hitting his son over the head. Similarly, in Quick, 57 where the defendant committed an assault on the victim during a hypoglycaemic episode, the defence prevailed despite the evidence revealing that he had not lost complete control of his actions nor lost consciousness. In general, there is a paucity of cases supporting the broader view, and the narrower construct of total loss of control, supported very recently in C, reflects prevailing orthodoxy. It has also received the endorsement of the Law Commission, rejecting any ‘arbitrary’ delimitation between road traffic and other offences, but rather a pervasive bright-line standardisation of total involuntariness.58 The difficulty is that it is out of kilter with legal and medical realities, and related criticisms are isomorphic. The total loss of control template is embedded within an unjustifiable construction of the ‘defence’ per se, and a paradoxical distrust that jurors do not have the ability to filter out claims that are frivolous.59 It is disappointing that the 54 See Andrew Simester, John Spencer, Bob Sullivan and Graham Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (Hart Publishing, 5th edition, 2013) 112: ‘It is noteworthy that the cases in which the most stringent demands are made all concern driving offences, and it may be that they should be restricted to that context. In offences that involve more complex actions, such as robbery and assault, there is certainly no requirement that D be altogether unconscious’; and see generally, Carter [1959] VR 105; Toner (1991) 93 Cr App R 382; and Stripp (1978) 69 Cr App R 318. 55 Glanville Williams, Textbook Of Criminal Law (2nd edn, 1983) 663; and see also JW Cecil Turner, Russell On Crime (12th edn, Sweet and Maxwell, 1964) 37. 56 [1955] 1 WLR 317. 57 [1973] QB 910; and see Reed and Fitzpatrick (n 36) 190-191. 58 Law Com DP, 2013 (n 8) para 5.32. 59 See Child and Reed (n 34).

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defence is couched in this veil of suspicion, and as Justice Binnie made clear in his dissenting judgment in the Supreme Court of Canada in Stone, 60 wholly unfounded: ‘Anyone who thinks a jury of bus drivers, office workers, and other practical people will be less sceptical than members of the bench or professors of law has perhaps spent insufficient time in buses or around office machines.’ 61 The scientific support for automatistic behaviour and key research finding, 62 indicates as Coles 63 suggests, that there are ‘degrees’ of loss of self-control equating to diminished consciousness or disinhibition, but ‘less’ than total involuntariness at the point of commission of the actus reus of the offence: [O]n the basis of the available knowledge of human behaviour, it may be suggested that many of the crimes that the courts have decided were committed in an automatistic state – that is, in the absence of conscious volitional control, or while the mind was a total blank – actually may have occurred in a state of diminished consciousness, with the diminished consciousness resulting in the diminished control of behaviour. In other words, the individual becomes disinhibited and behaviour that the individual would otherwise be able to [contain] gains expression.64

The stricture appurtenant to the total loss of control predicate should be ameliorated. It is important to chart a new pathway for loss of control, recognising a via media attached to semi-voluntariness, arising from disinhibition and a loss of capacity deliberately to control behaviour. Partial not total loss of capacity may be presented to exculpate criminal responsibility for acts committed in non-deliberative formulations: advanced stages of hypoglycaemia; occurrences of concussion; and significantly in terms of the following discussion, relationally to posttraumatic stress disorder and for dissociative states of extreme emotional distress where the ‘criminal’ actor is disinhibited. 65 The narrative of 60 [1999] SCT No 27; 134 CCC (3d) 353. 61 ibid [89]. 62 See Stanley Yeo, ‘Clarifying Automatism’ (2002) 25 International Journal of Law and Psychiatry 445. 63 Michael Coles, ‘Scientific Support for the Legal Conception of Automatism’ (2000) 7 Psychiatry, Psychology and Law 33. 64 ibid 37. 65 See Jeremy Horder, ‘Criminal Law: Between Determinism, Liberalism and Criminal Justice’ (1996) 49 Current Legal Problems 159, 165: ‘[D]eterminism cannot challenge the existence of and need for evaluation of beliefs and of conduct, in the light (inter alia) of reasons as well as causes.’

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emotional excuse should receive a wider audience: ‘[W]hat counts is the ability deliberately to control one’s conduct – that one’s movements are not responsive to a capacity to reason and deliberate about one’s conduct.’66

Psychological-Blow Automatism and Post-Traumatic Stress Disorder: Conceptual and Normative Difficulties It is axiomatic that cases will arise where, prima facie, the defendant satisfies both the actus reus and mens rea for murder, but the justice of the situation is that an alternative verdict with a wider range of disposal powers would be more appropriate. Considerations of reduced moral responsibility are central to emotional excuse, and may require at the very least an opportunity for a wider consideration of the underlying narrative at the time of the wrongful conduct.67 Conceptual and normative difficulties in relation to moral capacity and blameworthiness have recently arisen in a number of high profile cases on both sides of the Atlantic involving military personnel suffering dissociative states, notably P.T.S.D., at the temporal specificity of unlawful act commission.68 The individuals concerned have been veterans of numerous tours to Iraq and Afghanistan, and previously commended for acts of bravery and heroism: John Pemberton of the 82nd Airborne Division in the U.S., a highly commended veteran of the Iraq war, and three time recipient of the Purple Heart, shot and killed his 28 year old wife;69 Liam Culverhouse returned from Afghanistan with severe physical injuries and suffering emotional trauma, and killed his 20 month old daughter, brutally and repeatedly attacking her, fracturing the skull, ribs and limbs;70 and Michael Pedersen, formerly of the Household Cavalry, and victim of an IRA nail bomb attack in Hyde Park, killed his young son

66 Simester, Spencer, Sullivan and Virgo (n 54) 112. 67 See Alan Reilly, ‘Loss of Control in Provocation’ [1977] 21 Criminal Law Journal 320; and see generally, Jeremy Horder, ‘Reshaping the Subjective Element in the Provocation Defence’ (2005) 25 Oxford Journal of Legal Studies 123. 68 See Betsy J Grey, ‘Neuroscience, PTSD, and Sentencing Mitigation’ (2012) 34 Cardozo Law Review 53; and Deidre M. Smith, ‘Diagnosing Liability: The Legal History of Post-Traumatic Stress Disorder’ (2011) 84 Temple Law Review 1; and see generally, Kormos (n 18). 69 The Mail, February 6, 2012. 70 The Guardian, January 17, 2014.

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and daughter after telling his doctor a month prior to the homicides that he was suffering from P.T.S.D. brought about by his time in the army.71 Most recently, in Fort Hood, Texas, another tragedy has occurred with three people killed and 16 others serious injured in a shooting incident on April 2, 2014, committed by Spc. Ivan Hood, who then took his own life.72 This is the same Texas military base where army psychiatrist Nidal Hassan shot and killed 13 people on November 5, 2009. The gunman in the latest homicidal attack, Spc. Ivan Lopez, was suffering from depression and anxiety at the time of the shootings, and was being examined for signs of P.T.S.D. after serving in Iraq in 2011.73 It is significant that statistics from the Department of Veteran Affairs concluded that about 1,000 veterans of the Iraq and Afghanistan wars are diagnosed each week with P.T.S.D. and that more than three quarters of them are combat veterans.74 The disorder, as explored below, is characterised by universal symptoms such as flashbacks, nightmares, emotional numbness or hyper-vigilance that follows a traumatic experience.75 A concomitant of the emotional trauma is that suicide rates among veterans aged 18-24, who are enrolled in VA health programmes are significantly higher than for the civilian population: military personnel killing themselves at a rate of 80 per 100,000 in 2011, the latest year for which data is available. 76 Comparatively, non-veterans of the same age demographic had a rate of 20 per 100,000 for 2009 and 2010, as stated in the latest available data from the Centre for Disease Control and Prevention.77 P.T.S.D. has been a relatively obscure phenomenon in our criminal law, and similarly there has been limited juridical examination of potentially excusatory dissociative states linked directly to emotional

71 The Daily Telegraph, December 5, 2012. 72 USA Today, April 4, 2014. 73 See The New York Times, April 13, 2014, suggesting that of Iraq and Afghanistan veterans who had been treated by the VA, 55% have been diagnosed with mental disorders. 74 See Jack R. Cornelius, ‘Editorial Regarding the New DSM-S Diagnosis of PTSD in Veterans’ (2013) 2 Journal of Depression and Anxiety 139.. 75 ibid. 76 ibid, and see generally, Thomas L. Hafemeister and Nicole A Stockey, ‘”Last Stand” The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan with Post-Traumatic Stress Disorder’ (2010) 85 Indiana Law Journal 87. 77 ibid.

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trauma.78 In this regard it has been suggested that law has for a long time been, ‘marching with medicine, but in the rear and limping a little.’ 79 Mental health practitioners diagnose P.T.S.D. through the criteria established in either the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), 80 or the International Classification of Diseases (ICD-10). 81 The DSM was the first clinical diagnostic manual to be utilised on any official basis, and prior to the publication of DSM-V in 2013, that culminated in a 14 year revision process, defined P.T.S.D. according to a set of criteria,82 whereby an individual had been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed or was confronted with event(s) involving actual or threatened death or serious injury, or a threat to the physical integrity of self and others; and (2) the person’s response involved intense fear, helplessness or horror. Persistent symptoms of increased arousal (not present before the trauma) were indicated by at least two of the following: (1) difficulty falling or staying asleep; (2) irritability or outbursts of anger; (3) difficulty concentrating; (4) hyper-vigilance; and (5) exaggerated startle response.83 The diagnostic criteria for DSM-V sets out a clearer articulation of the constituents of a ‘qualifying’ traumatic event. 84 The triggers from 2013 encompass exposure to actual or threatened death, serious injury or sexual violation (a new element) linked derivatively to one or more sets of circumstances in which the actor: directly experiences the traumatic event; 78 See generally, P. Birmes et al, ‘Biological Factors of Post-Traumatic Stress: Neuroendocrine Aspects’ (2000) 26 L’Encéphale 55; Carsten Spitzer et al, ‘PostTraumatic Stress Disorder in Forensic Inpatients’ (2001) 12 Journal of Forensic Psychiatry 61; and Murray B Stein et al, ‘Full and Partial Post-Traumatic Stress Disorder: Findings From a Community Survey’ (1977) 154 American Journal of Psychiatry 1114. 79 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1971] ALR 253, 395 (Aust. H.C.). 80 American Psychiatric Association (A.P.A.), DSM-V, Diagnostic and Statistical Manual of Mental Disorders (5th edn, Washington, 2013); and see also A.P.A. DSM-IV (4th edn., Washington, 1994). 81 World Health Organisation, International Statistical Classification of Diseases and Related Health Problems, 10th ed. online: World Health Organisation: