The Law Commission

PART VI

THE INTRODUCTION INTO ENGLISH LAW OF THE DEFENCE OF DIMINISHED RESPONSIBILITY

Background

The Royal Commission on Capital Punishment (1949-1953)

6.1     The defence of diminished responsibility was introduced into the law of England and Wales by section 2 of the Homicide Act 1957.^[1] From its inception, it has been a defence which, if successfully pleaded, entitles the defendant to be acquitted of murder and instead convicted of manslaughter. For this reason, it is frequently referred to as a partial defence. Its essence is that the defendant suffered from such "abnormality of mind", arising from or induced by certain specified causes, as "substantially impaired his mental responsibility" for his conduct.
6.2     The enactment of the 1957 Act represented the legislature's response to the Report published by the Royal Commission on Capital Punishment 1949 – 1953.^[2] When the Royal Commission was established in 1949, the mandatory sentence for murder was death. The Royal Commission was asked to consider and report on whether liability to suffer capital punishment should be limited or modified and, if so, to what extent and by what means. A substantial portion of the Report was devoted to considering "how far persons suffering from insanity, from mental deficiency or from lesser forms of mental abnormality should on that ground be relieved of the liability to suffer capital punishment for murder".^[3]
6.3     The Report addressed the fundamental distinction which then existed, namely mental abnormality which as a matter of law was capable of founding the defence of insanity and mental abnormality which was not. Those found to be legally insane lacked any responsibility for their conduct. This was in contrast to those who were "mentally abnormal, but not to such a degree as to justify their being regarded as wholly irresponsible".^[4] The implication, of course, was that such persons were considered to be only partially responsible for their conduct.
6.4     The distinction reflected the fact that mental disorder which amounted in law to insanity had legal consequences in contrast to other forms of mental disorder. A defendant who proved that he was legally insane was entitled to a special verdict of "guilty but insane".^[5] In the context of murder this meant that he was not liable to be sentenced to death but would be ordered to be detained without limitation of time in a mental hospital. By contrast, the mentally disordered defendant charged with murder who could not prove that he was legally insane would, if convicted, be subject to the death sentence. His mental disorder had no legal consequences.^[6]
6.5     In pleading insanity a defendant had to prove that he was "insane so as not to be responsible in law for his actions".^[7] For the purpose of attributing criminal liability, the law was not concerned with degrees of responsibility. There was a dichotomy of sane or insane, responsible or not responsible, mad or bad. Since 1843 it had been accepted that the test of responsibility was contained in the M'Naghten Rules.^[8] The test will be explained in detail below^[9] but, for present purposes, it is sufficient to emphasise that it was, and still is, narrow in scope. It focused exclusively on the cognitive features of the defendant's mind. The defendant had to be suffering from a "defect of reason" arising from a "disease of the mind". In addition, the defendant had to prove either that he did not know the nature and quality of his act^[10] or that he did not know that it was wrong in the sense of being contrary to the law.^[11] The criticism most frequently levelled at the test was that it was based on an entirely obsolete belief in the pre-eminent role of reason in controlling social behaviour. Critics argued that contemporary psychiatry and psychology stress that social behaviour is determined more by how a person has learned how to behave than by what he knows or understands. Insanity, it was argued, did not only, or even primarily, affect the cognitive or intellectual faculties, but the whole personality, including the will and the emotions. The M'Naghten Rules have never permitted the defendant's emotional state of mind to be examined.
6.6     The Royal Commission's Report agreed that the test of responsibility laid down by the M'Naghten Rules was inadequate. The majority recommended^[12] that the Rules should be abrogated and, instead, the jury should be asked to determine whether the defendant, at the time of the act or omission, was suffering from either a disease of the mind or mental deficiency to such a degree that he ought not to be held responsible.
6.7     Four of the twelve members of the Royal Commission dissented from that recommendation. Their criticism was that it abolished the existing test without providing a satisfactory replacement. It dispensed with a criterion, however defective, of criminal responsibility and instead left the issue at large to the jury on the basis that criminal responsibility is essentially an ethical question to which only a subjective answer, not based upon any objective criterion, can be given. In the minority's view, this gave insufficient recognition to the principle that criminal responsibility must be t decided with reference to established legal criteria.
6.8     The Report did not recommend the introduction of diminished responsibility as a defence (partial or otherwise) to murder. The reason was not that it was envisaged that juries would find the issue too difficult, or would tend to err in the direction of undue leniency. Rather, it was that, whereas murder and insanity were both rare occurrences and often went together,^[13] forms of mental abnormality which caused diminution of responsibility were of frequent occurrence and were potentially of importance to a wide range of offences. It was felt, however, that the Royal Commission's terms of reference did not permit examination of whether diminished responsibility should be available as a defence of general application affecting liability to and punishment for all crimes. With regard to murder, the Report concluded that a "radical" amendment to the existing law would not be justified for the "limited" purpose of enabling the court to take account of a special category of "mitigating" circumstances in cases of murder so as to avoid passing the death sentence in cases where such circumstances existed.^[14]
6.9     Although not advocating a defence of diminished responsibility, the Report's recommendation for a new test of responsibility in relation to the insanity defence did, in one respect, foreshadow the defence of diminished responsibility which was eventually introduced by the 1957 Act. This is because the proposed test would have enabled "mental deficiency" as well as "disease of the mind" to be capable of constituting insanity. Likewise, the 1957 Act did not restrict the availability of the defence of diminished responsibility to those defendants whose mental abnormality arose from a "disease of the mind". It is important, however, not to equate the Report's proposed test with the concept of diminished responsibility to be found in the 1957 Act. The Report maintained the distinction between mental abnormality which negated the defendant's responsibility and mental abnormality which diminished his responsibility. The proposed new test of insanity, while it extended the aetiology beyond "disease of the mind", was not designed to assist those whose responsibility the jury considered to be merely diminished (as opposed to negated).^[15]

The relevance of mental disorder in cases of murder immediately prior to the enactment of the 1957 Act

6.10     Prior to the enactment of the 1957 Act, there were a limited number of ways in which a person's mentally disordered state might affect the outcome of criminal proceedings for murder:

(1) The defendant's mental state at the time of the commission of the offence was such as to give rise to a verdict of not guilty by reason of insanity.^[16] In 1957, and until 1992 a verdict of not guilty by reason of insanity following trial on indictment resulted in a mandatory order that the defendant be admitted to a special hospital where he might be detained indefinitely.^[17] As previously explained, the test was a narrow one and, significantly, more restricted than that applied under Scots law.^[18] Given the mandatory disposal following a verdict of not guilty by reason of insanity, it might be thought that prior to 1957 defendants would prefer not to seek such a verdict but rather plead guilty and hope for as lenient a sentence as possible. This was indeed the case in respect of allegations other than murder which did not carry the mandatory death sentence. Accordingly, prior to 1957, the defence of insanity was in practice only very infrequently pleaded to offences other than murder.

(2) The defendant, by reason of mental disorder, might be unable to understand or participate meaningfully in the criminal proceedings. The focus was on the state of the defendant's mind, not at the time of the alleged commission of the offence, but at the date of trial. The test for determining whether he was fit to plead (or to be tried) was not that laid down in the M'Naghten Rules but was similar in the following respect. The jury had to focus on the defendant's cognitive capacity to comprehend the nature of a criminal trial and follow its proceedings. If the jury found that D was unfit to plead, prior to 1992, there was no trial of the facts. The law mandated indefinite hospitalisation in such cases.^[19] If they found that D had done the act or made the omission charged, the court had to order admission to a special hospital where he or she might be detained without limitation of time.

(3) The defendant might plead not guilty on the basis of automatism.^[20] The plea is an assertion by the defendant that his conduct was involuntary.^[21] Like the defence of insanity, its application is not confined to murder. The defendant is asserting that his conduct happened either against or, at least, without his will. In that sense, there is a denial of responsibility. Examples were provided by Humphreys J in Kay v Butterworth.^[22] One is where D, driving his motor car, is attacked by a swarm of bees and is disabled from controlling the vehicle. Alternatively, he is struck by a stone and rendered unconscious. Lord Goddard CJ subsequently observed of such examples that the defendant "could not really be said to be driving at all".^[23] In neither example is the defendant mentally disordered. The relevance of mental disorder to automatism arose where the involuntary nature of the defendant's conduct was caused by a "disease of the mind". In such cases, despite the conduct being involuntary, the courts held that, as a matter of law, what was being raised was not the issue of automatism but the defence of insanity.^[24] Thus, if successful, the defendant was not acquitted of the offence but found to be "guilty but insane". The reasons for the law adopting this stance related to public policy.^[25] The distinction, depending on whether or not the involuntary nature of the conduct resulted from a "disease of the mind", had only started to emerge prior to 1957.^[26] The process subsequently gathered momentum resulting in a body of complex case law.

The defence of insanity and its relationship to automatism prior to the homicide act 1957

Introduction

6.11     In 1957 Devlin J stated:

For the purposes of the criminal law there are two categories of mental irresponsibility, one where the disorder is due to disease and the other where it is not. The distinction is not an arbitrary one. If disease is not the cause, if there is some temporary loss of consciousness arising accidentally, it is reasonable to hope that it will not be repeated and that it is safe to let an acquitted man go entirely free. But if disease is present, the same thing may happen again and therefore, since 1800, the law has provided that persons acquitted on this ground should be subject to restraint.^[27]

6.12     In that passage a distinction was drawn between automatism, resulting in an outright acquittal, and the defence of insanity which, even if successfully pleaded, resulted in a special verdict and the indefinite detention of the defendant. According to Devlin J, in neither case was the defendant responsible for his conduct. The practical consequences of his not being responsible, however, differed considerably.
6.13     This Part considers the defence of insanity, together with its relationship to automatism, just prior to the creation of the partial defence of diminished responsibility. This is necessary for a number of reasons.
6.14     First a proper understanding of the reasons for, and the significance of, the introduction of the new defence depends upon a corresponding understanding of the then scope of the defence of insanity.
6.15     Second, it may well be that the ambit of the defence of insanity has exerted some influence on the judicial interpretation of the defence of diminished responsibility.
6.16     Third, a proper understanding of the scope of the defence of insanity in 1957 requires an examination of its relationship to the concept of automatism, because judicial concern over the scope of automatism had already begun to affect the way the courts defined at least one element of the M'Naghten Rules.

Insanity

Historical introduction

Before 1800

6.17     Walker maintains that prior to 1800 the defence of insanity was employed much more commonly than is usually suggested.^[28] At that time there was no fixed test of what constituted insanity and, according to Walker, if the jury were trying an ordinary theft or case of violence – as opposed to a Jacobite or a terrorist – the important question for them was whether the defendant was really insane.^[29]
6.18     If the jury found that the defendant was insane he was entitled to be acquitted and might be discharged, although this was not invariably the case. According to Beattie:

Much depended on whether relatives were willing to take care of the prisoner and guarantee his future behaviour. If no such person could be found, the court could send the discharged lunatic back to jail.^[30]

The Criminal Lunatics Act 1800

6.19     In 1800 James Hatfield was acquitted of the attempted murder of King George III. At the invitation of the court, the jury stated that it was because they believed him to be insane at the time he committed the attempt. As a result of judicial concern, the Criminal Lunatics Act 1800^[31] was enacted and applied retrospectively to Hatfield. The Act mandated the indefinite detention^[32] of those acquitted of "treason, murder or felony" if the jury specifically stated that it was acquitting the defendant because in their opinion he was "insane at the time of the commission of such offence". The Act marks the introduction of a special verdict for defendants who are considered to be legally insane.

M'Naghten's Case 1843

6.20     Daniel M'Naghten assassinated the Prime Minister's secretary but was acquitted of murder on the grounds that he was "insane at the time of the commission of the offence". By virtue of the Criminal Lunatics Act 1800 he was detained until his death some 22 years later. The fact that he was acquitted, however, caused a public outcry. A House of Lords debate followed and it was decided that the judges should be summoned to give their opinion "as to the law respecting crimes committed by persons afflicted with insane delusions".^[33] The reference to "delusions" was no accident. M'Naghten had committed the assassination while labouring under the delusion that he was being persecuted by the Prime Minister, Robert Peel. He killed the latter's secretary in the mistaken belief that he was the Prime Minister. The judges were requested to answer certain questions and those questions together with the answers given constitute the M'Naghten Rules.^[34]

The M'Naghten Rules

6.21     The importance of the Rules cannot be exaggerated. They have been treated as authoritative for more than a century and continue to form the definitive statement of the insanity defence not only in English law but also in many other legal systems in the Anglo-American tradition.
6.22     The Rules consist of the judges' answers to five questions. Question 5 is not of immediate concern. Three of the other four questions are predicated on the defendant being either "afflicted with" or "under" an insane delusion. The answer which is considered to be the most important constituent of the Rules is that given to question 3. Neither that question nor the answer to it is by their terms confined to cases of insane delusions.
6.23     Question 3 asked:

In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed?^[35]

The key passage of the answer states:

[T]he jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.^[36]

6.24     The courts have refused to countenance submissions that the application of the Rules should be confined to cases where the defendant is labouring under a delusion.^[37] The way the Rules have been interpreted will be considered in more detail below.^[38]

The Trial of Lunatics Act 1883

6.25     Prior to the enactment of the Criminal Lunatics Act 1800, a finding by the jury that the defendant was insane resulted in an absolute acquittal. That Act did not alter the form of the verdict, but it did provide that a person acquitted of "treason, murder or felony" on the specific ground that he "was insane at the time of the commission of such offence" was, despite being acquitted, to be detained indefinitely. The Trial of Lunatics Act 1883 modified the common law by introducing a qualified form of acquittal in contrast to the former absolute form of acquittal. Henceforth, the special verdict to be returned by the jury was to be one of "guilty of the act or omission charged against him, but . . . insane . . . at the time when he did the act or made the omission".^[39] As previously explained, the court was mandated to order the indefinite detention of the defendant.

Judicial interpretation of the M'Naghten Rules prior to the enactment of the Homicide Act 1957

6.26     The Rules focused (and continue to focus) exclusively on the cognitive aspects of the defendant's mind, that is, on the defendant's knowledge and understanding of his conduct. Even at the time they were promulgated, medical science had been stressing that mental disorder might deny the sufferer the ability to control his conduct. Such volitional or emotional disorder is not, however, encompassed by the Rules.
6.27     Under the Rules there were two lines of defence available to the defendant:

(1) he was labouring under a defect of reason from disease of the mind so as not to know the nature and quality of the act he was doing, or

(2) he was labouring under a defect of reason from disease of the mind so that, even if he was aware of the nature and quality of the act, he did not know that what he was doing was wrong.

"Defect of reason"

6.28     The powers of reasoning had to be impaired. A mere failure to exercise powers of reasoning which one possessed would not suffice. An abnormality of mind, such as an inability to control one's emotions or resist impulses, which did not reflect impaired powers of reasoning, was not capable of constituting a "defect of reason".
6.29     The scope of the term "defect of reason" was, in theory, circumscribed by the requirement that it had to arise from "disease of the mind". The latter phrase, however, came to be broadly interpreted.

"Disease of the mind"

6.30     "Disease of the mind" is a legal and not a medical concept, although this was not always appreciated in the period leading up to the enactment of the 1957 Act.^[40] The most significant authority prior to 1957 is that of Kemp.^[41] K, an elderly man of excellent character, made an entirely motiveless and irrational attack on his wife. He was charged with causing grievous bodily harm with intent. The medical evidence was that he suffered from arteriosclerosis (hardening of the arteries) which resulted in a congestion of blood on the brain. The condition had not reached the stage where he was exhibiting any general signs of mental trouble, other than that he was depressed because of his poor physical state of health. It was agreed that his condition had resulted in a temporary lapse of consciousness during which he perpetrated the attack. He was not conscious that he had picked up a hammer, let alone that he had struck his wife with it. Afterwards, he had no recollection of the event. The Crown conceded that D was suffering from a "defect of reason" and that he did not know the "nature and quality" his act.
6.31     In pleading not guilty, K submitted that the defect of reason was a result not of "disease of the mind" but a purely physical condition. In other words, he was relying on (non-insane) automatism. The submission was that the arteriosclerosis, until it caused the brain cells to degenerate, was a temporary interference with the working of the brain just like a concussion. It was a physical disease which only became a "disease of the mind" when the brain cells degenerated.
6.32     The submission was emphatically rejected by Devlin J. He said that acceptance of the submission would result in:

a very difficult test to apply for the purposes of the law. I should think it would be a matter of great difficulty medically to determine precisely at what point degeneration of the brain sets in, and it would mean that the verdict depended upon a doubtful medical borderline.^[42]

6.33     According to Devlin J:

(1) the law is concerned not with the brain but with the mind, meaning the mental faculties of reason, memory and understanding;

(2) the condition of the brain is irrelevant, as are the questions whether the disease is curable or incurable and whether it is temporary or permanent;

(3) although mental diseases can be either organic or functional in origin, the distinction is legally irrelevant because the law is not concerned with the origin or cause of the mental condition but with the mental condition itself.

6.34     Devlin J stressed that the phrase "disease of the mind" had to be judicially interpreted so as accurately to reflect the purpose intended for it by the answer given to question 3 in M'Naghten's Case:

[t]he words "from disease of the mind" are not to be construed as if they were put in for the purpose of distinguishing between diseases which have a mental origin and diseases which have a physical origin, a distinction which in 1843 was probably little considered. They were put in for the purpose of limiting the effect of the words "defect of reason". A defect of reason is by itself enough to make the act irrational and therefore normally to exclude responsibility in law. But the Rule was not intended to apply to defects of reason caused simply by brutish stupidity without rational power. It was not intended that the defence should plead: 'Although with a healthy mind he nevertheless had been brought up in such a way that he had never learned to exercise his reason, and therefore he is suffering from a defect of reason.' The words ensure that unless the defect is due to a diseased mind … there is insanity within the meaning of the Rule.^[43]

6.35     Paradoxically, the effect of Devlin J's ruling is that words, which he maintains were inserted for the purpose of limiting the ambit of the defence of insanity, receive an extremely wide interpretation capable of incorporating mental conditions which have a physical cause and which may result in a short period of insanity. This paradox results from a perceived need to limit the scope of automatism. The concern was that if defendants could plead automatism and secure an outright acquittal, the result would be the release into the community of individuals who were dangerous and prone to repeat their conduct. The policy is clear but has been criticised. According to Simester and Sullivan:

The legitimate concern for public safety should be resolved through civil rather than criminal procedures . . . persons of good character. .. may prefer to plead guilty to offences they did not commit rather than pursue an insanity plea with all its pejorative overtones.^[44]

"Nature and quality of the act"

6.36     The phrase "nature and quality of the act" had been interpreted to refer to the physical nature and quality of the act and not to its moral or legal quality. In Codere^[45] C was charged with murder. It was submitted on his behalf that "nature " refers to the physical act of the defendant and "quality" to its morality. In rejecting the submission Lord Reading CJ stated:

The Court is of the opinion that in using the language "nature and quality" the judges 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.^[46]

6.37     Illustrations of a defendant not knowing "the nature or quality of his act" were provided by leading commentators:

(1) A kills B under an insane delusion that he is breaking a jar,^[47] and

(2) the madman who cuts a woman's throat under the [delusion] that he was cutting a loaf of bread.^[48]

"Did not know that what he was doing was wrong"

6.38     In Windle^[49] W killed the woman to whom he was unhappily married. She was continually speaking of committing suicide and medical evidence was led at W's trial that she was certifiably insane. Eventually, on the "advice" of a work colleague, W gave his wife 100 aspirins. He was charged with her murder.
6.39     W pleaded insanity. A doctor called on his behalf testified that W was suffering from a form of communicated insanity known as folie a deux. If a person was in constant attendance on another who was of unsound mind, in some way the insanity might be communicated to the attendant so that, for a time at any rate, the attendant might develop a defect of reason. This testimony was described by the Court of Criminal Appeal as "exceedingly vague". Although medical evidence in rebuttal was called, all the doctors agreed that when W administered the fatal dose, he knew that he was doing an act which was contrary to the law. Devlin J ruled that there was no evidence of insanity to go to the jury.
6.40     On appeal, it was submitted that when promulgating the M'Naghten Rules the judges were dealing with hypothetical cases of insanity in which the defendant was alleged to be suffering from delusion, that is, a belief that an imaginary state of facts exists. Neither W nor his wife was labouring under any delusion. It followed, according to this submission, that the M'Naghten Rules were not applicable. Alternatively, if they were applicable, the test was whether the defect of reason had prevented W from distinguishing between right and wrong.
6.41     Lord Goddard CJ rejected both submissions:

In all cases of this kind, the real test is responsibility. A man may be suffering from a defect of reason, but if he knows that what he is doing is "wrong" and by "wrong" is meant contrary to the law, he is responsible.^[50]

6.42     He continued:

Courts of law can only distinguish between that which is in accordance with the law and that which is contrary to the law . . . The law cannot embark on the question and it would be an unfortunate thing if it were left to juries to consider whether some particular act was morally right or wrong. The test must be whether it is contrary to law . . .^[51]

6.43     Read literally, this obiter dictum suggests that if the defendant knows that his act is morally wrong but, owing to a "disease of the mind", does not appreciate that it is also contrary to the law, he is entitled to rely on the defence.

Automatism

Voluntary and involuntary acts or omissions

6.44     According to Professor Mackay:

A starting point is the fundamental principle accepted by most common law jurisdictions that, if a person is to be convicted of any criminal offence, his act or omission must have been a voluntary one. If the action is found to be involuntary, then generally speaking, the agent in question cannot be held criminally responsible.^[52]

6.45     In order to explain the distinction between a voluntary and involuntary act, the law has adopted the Austinian doctrine of the philosophy of the will.^[53] This doctrine holds that we will or desire certain movements. The antecedent wishes and the immediate consequent movements are described respectively as human volitions and human acts. In turn, acts give rise to consequences. Voluntary acts and omissions are therefore willed acts and omissions which give rise to consequences. This adherence to the Austinian doctrine was noted by McCarthy J in the New Zealand case of Burr^[54] where he observed:

Some people consider this concept inadequate in the light of modern medical knowledge but it still dominates our law relating to intention.^[55]

6.46     When a defendant is asserting that his conduct was "involuntary" he is raising the issue of automatism. It is an "issue" rather than a "defence" because automatism is a denial of responsibility for the conduct element of the offence. In Cottle^[56] the President of the Court of Appeal for New Zealand described automatism as:

action without any knowledge of acting, or action with no consciousness of doing what was being done.^[57]

6.47     An example of an involuntary act is where A forcibly seizes B's hand and with it strikes C. B is not guilty of any criminal assault as he is merely the innocent agent of A. Of more significance, however, are cases where the act of the defendant is involuntary for reasons other than the intervention of another human being. Classic examples, already referred to above,^[58] are where D, driving his motor car, is attacked by a swarm of bees or rendered unconscious as a result of being hit by a stone and thereby disabled from controlling the movement of the vehicle. Such cases prior to 1957 were unusual and the concept of automatism, which usually consists of a plea of unconscious involuntary action, is of recent origin.^[59]
6.48     An involuntary act or omission, which may pose a danger to others, can result from a range of different causes or conditions. Some, particularly those which are external to the defendant, such as being attacked by a swarm of bees, are unlikely to recur. By contrast, others such as cerebral tumour, arteriosclerosis, epilepsy, hyperglycaemia (diabetes) and convulsions are likely to continue or recur. The dilemma facing the courts arises from the tension between the dictates of logic and considerations of public policy. Logically, if the conduct of the defendant is involuntary then, regardless of its cause, he is not perpetrating the conduct element of the offence and an outright acquittal should follow. On the other hand, if all defendants whose actions are involuntary were entitled to be acquitted on the basis of automatism, society would be at risk from a repetition of their conduct.
6.49     Over the course of time, the judicial response was to ensure that the concept of automatism leading to an outright acquittal was circumscribed. Prior to 1957, however, the courts were only just starting to address the issue. Herein lies the significance of Kemp^[60] where, as stated above,^[61] Devlin J held that arteriosclerosis resulting in a lapse of consciousness was a "disease of the mind". There is now a body of case law which serves to distinguish "non-insane automatism", entitling the defendant to an outright acquittal, from "insane automatism", resulting (if the offence is murder) in indefinite detention. In 1957, however, Kemp was an isolated "authority." It had yet to be considered by an appellate court and sat uneasily with the earlier first instance decision in Charlson.^[62]

Conclusions

6.50     Prior to the 1957 Act a mentally disordered defendant charged with murder, if fit to plead, could either plead the defence of insanity or seek to rely on automatism. If pleading insanity, he was faced with the burden of proving that he was not responsible within the meaning of the M'Naghten Rules. The concept "disease of the mind" had started to be given a broad policy based interpretation by the courts. Professor Mackay has remarked, however, that although an expansionary attitude had begun to be adopted towards that phrase, this had been "counterbalanced by the narrow interpretation given to the other elements of the Rules".^[63]
6.51     The upshot was that vis-à-vis automatism the ambit of the insanity defence was expanding. However, because of its stress on the cognitive aspects of the mind and judicial reluctance to countenance arguments which would have diluted those aspects, insanity remained a strictly and narrowly defined defence. In particular, it offered no succour to those who, because of mental disorder, wholly or substantially lacked the capacity to control their impulses.
6.52     Although the Report of the Royal Commission on Capital Punishment had recommended that the test of responsibility for the purposes of the M'Naghten Rules should be broadened, the Government did not pursue the recommendation. The 1957 Act left the M'Naghten Rules untouched. Parliament did acknowledge, however, that, in the context of criminal liability for murder, mental disorder falling short of insanity within the meaning of the M'Naghten Rules should be afforded some legal recognition. This was to be achieved by the introduction of the partial defence of diminished responsibility. Henceforth, there was to be no rigid dichotomy between sane or insane, responsible or not responsible, bad or mad.

Note 1    In this Part referred to as “the 1957 Act”. Section 2 has no application to Scotland and Northern Ireland. The defence had, however, previously been recognised at common law in Scotland. The first judicial use of a phrase akin to “diminished responsibility” was in HM Advocate v Edmonstone 1909 2 SLT 223, 224, per Lord Gultrie, but the underlying principles can be traced back to at least 1867.     [Back]

Note 2    (1953) Cmd 8932; in this Part referred to respectively as “the Report” and “the Royal Commission”.     [Back]

Note 3    Para 211.    [Back]

Note 4    Paras 215 and 373.    [Back]

Note 5    Prior to the enactment of the Criminal Lunatics Act 1883, the verdict was one of not guilty by virtue of insanity. The defendant, although not guilty, was nevertheless liable to be detained indefinitely.    [Back]

Note 6    He might obtain a reprieve by virtue of the executive exercise of the Royal Prerogative of Mercy. If so, a sentence of life imprisonment would be substituted.     [Back]

Note 7    Trial of Lunatics Act 1883, s 2(1).    [Back]

Note 8    10 Cl & Fin 200; 8 ER 718.    [Back]

Note 9    See paras 6.26–6.43.    [Back]

Note 10    In this case insanity negatives the mental element in the definition of the offence.    [Back]

Note 11    In this case insanity is a special exculpatory defence which is based on lack of capacity for normative understanding. It is an exception to the general rule that “ignorance of the law is no defence”.    [Back]

Note 12    Para 333.    [Back]

Note 13    Because murder attracted the death sentence, there was every incentive to plead insanity even though, if successfully pleaded, it resulted in detention without limitation of time.    [Back]

Note 14    The Royal Commission did recommend, however, that in all cases where the defendant was convicted of murder, the jury should determine whether there were such extenuating circumstances as to justify the substitution of a sentence other than death.    [Back]

Note 15    This is clearly demonstrated at para 357. The majority stated that they agreed with the view of the British Medical Association that “the criterion of criminal responsibility ought to apply to all cases of mental defectives, the jury being left to decide, on the evidence in each case, whether the degree of mental defect was such as to negative, or only to diminish, the responsibility of the accused”. (emphasis added)    [Back]

Note 16    The defence was not confined to murder.    [Back]

Note 17    This mandatory disposal still applies in respect of offences for which the sentence is fixed by law – murder. For other offences, a wider range of disposals is now available by virtue of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, which came into force on 1 April 1992.    [Back]

Note 18    Whether this is still the case is debatable since, on one view, the ambit of the defence of insanity in Scots law has since narrowed.    [Back]

Note 19    Since 1992, in such a case, another jury will decide whether the defendant “did the act or made the omission charged against him as an offence”. If the jury finds that the defendant did not commit the conduct element of the offence, he is entitled to be acquitted    [Back]

Note 20    There has been considerable academic discussion as to whether automatism is a denial that the conduct element of the offence has been committed or rather that the defendant lacked the fault element of the offence.     [Back]

Note 21    The word “involuntary” in the context of offences against the person has three different meanings. In relation to the defendant’s conduct it means “unwilled” or “unconscious”. Such conduct amounts to automatism. In addition, the word is used to describe one of two kinds of manslaughter recognised at common law. Here the word is used in relation to the defendant’s state of mind rather than his conduct. Manslaughter is involuntary if the defendant did not form the mental element required for a murder conviction. Finally, the word is used in relation to the specific act of becoming intoxicated. Here it means blameless or non-culpable.    [Back]

Note 22    (1945) 61 TLR 452, 453.    [Back]

Note 23    Hill v Baxter [1958] 1 QB 277, 283.    [Back]

Note 24    Kemp [1957] 1 QB 399.    [Back]

Note 25    See paras 6.35 and 6.48.    [Back]

Note 26    Kemp [1957] 1 QB 399.    [Back]

Note 27    Hill v Baxter [1958] 1 QB 277, 285–286. (emphasis added)    [Back]

Note 28    N Walker, Crime and Insanity in England vol 1 (1968) pp 15–16.    [Back]

Note 29    N Walker, “The Insanity Defense before 1800” (1985) 477 The Annals of the American Academy of Political and Social Science 25 at p 30.    [Back]

Note 30    J M Beattie, Crime and the Courts in England 1660-1800 (1986) p 84.    [Back]

Note 31    An Act for the Safe Custody of Insane Persons Charged With Offences, 39 and 40 Geo III c 94 (1800).    [Back]

Note 32    Over the course of time this came to mean confinement in a mental hospital or an institution for criminal lunatics or mental defectives, with control over release vested in the Home Secretary.    [Back]

Note 33    Richard Moran, Knowing Right from Wrong, The Insanity Defence of Daniel M’Naghten (1981).    [Back]

Note 34    M’Naghten’s Case (1843) 10 Cl & Fin 200; 8 ER 718.    [Back]

Note 35    Ibid, at p 203.    [Back]

Note 36    Ibid, at p 210. (emphasis added)    [Back]

Note 37    Windle [1952] 2 QB 826.    [Back]

Note 38    See paras 6.26–6.43.     [Back]

Note 39    Section 2(1). The modern form of that verdict – “guilty but insane” – was described by Devlin J in Hill v Baxter [1958] 1 QB 277, 286 as “illogical and disagreeable”. The Criminal Procedure (Insanity) Act 1964 restored the acquittal by providing for the jury to bring in a special verdict of “not guilty by reason of insanity”. The words “by reason of” imply a causal connection.    [Back]

Note 40    This is demonstrated by Devlin J’s attempt in Kemp [1957] 1 QB 399 (Assizes) to distinguish Charlson [1955] 1 WLR 317 (Assizes). He distinguished it on the basis that in Charlson all the doctors were agreed that a cerebral tumour did not constitute a “disease of the mind”. The fact that the doctors were all agreed, however, should not have been determinative of the issue.    [Back]

Note 41    [1957] 1 QB 399 (Assizes). What is reported is Devlin J’s ruling on 27 June 1956 at Bristol Assizes in relation to how he was going to direct the jury. Despite its non-appellate status and the unconvincing attempt to distinguish Charlson, over time it has come to be recognised as a seminal authority and was approved by the House of Lords in Sullivan [1984] AC 156.    [Back]

Note 42    [1957] 1 QB 399, 407.     [Back]

Note 43    Ibid, at p 408.    [Back]

Note 44    Criminal Law: theory and doctrine (2nd ed, 2002) p 577. The criticism is not apposite in the case of defendants, who prior to the suspension of the death sentence in 1965, were charged with capital murder.    [Back]

Note 45    (1916) 12 Cr App R 21.    [Back]

Note 46    Ibid, at pp 26–27.    [Back]

Note 47    Stephen, Digest of the Criminal Law, (9th ed, 1950) p 5.    [Back]

Note 48    Kenny, Outlines of Criminal Law, (19th ed, 1966) p 83.    [Back]

Note 49    [1952] 2 QB 826.    [Back]

Note 50    [1952] 2 QB 826, 832. A defect of the judgment is that Lord Goddard CJ conflates the concepts of “defect of reason” and “disease of the mind”.    [Back]

Note 51    [1952] 2 QB 826, 833. The requirement in the law of theft that the defendant must have “dishonestly appropriate[d]” property does require the jury to make a moral judgment – Ghosh [1982] QB 1053.    [Back]

Note 52    R D Mackay, Mental Condition Defences in the Criminal Law (1995) p 8.     [Back]

Note 53    J Austin, Lectures on Jurisprudence or the Philosophy of Positive Law (1885).    [Back]

Note 54    [1969] NZLR 736.    [Back]

Note 55    [1969] NZLR 736, 748.    [Back]

Note 56    [1958] NZLR 999.    [Back]

Note 57    [1958] NZLR 999, 1020. See also Watmore v Jenkins [1962] 2 QB 572, p 586.    [Back]

Note 58    See para 6.10(3).    [Back]

Note 59    The first recorded case in which the term appears is Harrison-Owen [1951] 2 All ER 726.    [Back]

Note 60    [1957] 1 QB 399.    [Back]

Note 61    See paras 6.30 – 6.35.    [Back]

Note 62    [1955] 1 WLR 317.    [Back]

Note 63    R D Mackay, Mental Condition Defences in the Criminal Law (1995) p 100.    [Back]