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SCOTTISH LAW COMMISSION

promoting law reform

Report on Insanity and Diminished Responsibility

Report on a reference under section 3(1)(e) of the Law Commissions Act 1965

Laid before the Scottish Parliament by the Scottish Ministers

July 2004

SE/2004/92

EDINBURGH: The Stationery Office

£

The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965^[1] for the purpose of promoting the reform of the law of Scotland. The Commissioners are:

The Honourable Lord Eassie, Chairman

Professor Gerard Maher, QC

Professor Kenneth G C Reid

Professor Joseph M Thomson

Mr Colin J Tyre, QC.

The Chief Executive of the Commission is Miss Jane L McLeod. Its offices are at 140 Causewayside, Edinburgh EH9 1PR.

Tel: 0131 668 2131

Fax: 0131 662 4900

E-mail: info@scotlawcom.gov.uk

Or via our website at www.scotlawcom.gov.uk - select "Contact"

SCOTTISH LAW COMMISSION

Report on a reference under section 3(1)(e) of the Law Commissions Act 1965

Report on Insanity and Diminished Responsibility

To: Ms Cathy Jamieson MSP, Minister for Justice

We have the honour to submit to the Scottish Ministers our Report on Insanity and Diminished Responsibility

(Signed) RONALD D MACKAY, Chairman

GERARD MAHER

KENNETH G C REID

JOSEPH M THOMSON

COLIN TYRE

Miss Jane L McLeod, Chief Executive

7 May 2004

Contents

	Paragraph
Part 1 Introduction
Terms of reference	1.1
The Criminal Procedure (Scotland) Act 1995	1.4
Consultation	1.5
Disposals	1.9
Statistics	1.16
Main recommendations for reform	1.22
Legislative competence	1.26
Part 2 Insanity as a defence
Introduction	2.1
Option of no change to the current law	2.7
Abolition of insanity as a defence	2.15
Name of the reformed defence	2.19
Constituent elements of the defence	2.25
The presence of mental disorder	2.25
Connecting link (causation)	2.31
Specific effect of mental disorder on criminal conduct	2.38
Mental disorder and appreciation of conduct	2.42
A volitional element	2.52
Psychopathic personality disorder	2.57
ECHR implications	2.64

Part 3 Diminished responsibility
Introduction	3.1
A statutory statement of the test for diminished responsibility?	3.5
Abolition of the plea of diminished responsibility	3.10
Name of the plea	3.12
The substance of the test	3.14
The relationship with the special defence based on mental disorder	3.18
The psychopathy exclusion	3.24
The intoxication exclusion	3.35
Diminished responsibility in crimes other than murder	3.43
ECHR implications	3.51
Part 4 Insanity as a plea in bar of trial
Introduction	4.1
Options of no change and abolition	4.5
Name of the plea	4.8
Nature of the test	4.11
Exclusion of amnesia	4.20
ECHR implications	4.24

Part 5 Evidence and Procedure
A. The defence based on the accused's mental disorder	5.2
Burden of proof	5.2
Defence raised by the accused	5.3
Burden of proof in relation to defences	5.6
The implications of the ECHR	5.10
Insanity raised by the prosecution	5.29
Procedural nature of the defence	5.38
Verdict following the defence	5.40
B. Diminished responsibility	5.46
Burden of proof	5.46
Notice of the plea	5.50
C. Unfitness as a plea in bar of trial	5.54
Right to raise issue of unfitness in bar of trial	5.54
Standard of proof	5.58
Evidential requirements in relation to unfitness as a plea in bar of trial	5.60
Notice of the plea in summary proceedings	5.64
D. Transitional provisions	5.66
The special defence based on mental disorder; diminished responsibility	5.66
Unfitness in bar of trial	5.69

Part 6 List of recommendations	6

Appendix A Draft Criminal Responsibility and Unfitness for Trial (Scotland) Bill	Appendix A
Appendix B List of consultees who submitted written comments on Discussion Paper No 122	Appendix B
Appendix C Mental health experts who assisted with the project	Appendix C

Abbreviations

1995 Act

Criminal Procedure (Scotland) Act 1995

2003 Act

Mental Health (Care and Treatment) (Scotland) Act 2003

Butler Report

Report of the Committee on Mentally Abnormal Offenders, chaired by the Rt Hon Lord Butler (Cmnd 6244, 1975)

Gordon

Sir Gerald H Gordon QC, The Criminal Law of Scotland, Vol I, (3^rd edn ed Michael G A Christie) (Edinburgh, 2000)

Hume

Baron Hume, Commentaries on the Law of Scotland, Respecting Crimes (4^th edn) (Edinburgh, 1844; reprinted, 1986)

Mackay

R D Mackay, Mental Condition Defences in the Criminal Law (Oxford, 1995)

McAuley

Finbarr McAuley, Insanity, Psychiatry and Criminal Responsibility (Dublin, 1993)

Millan Report

New Directions: Report on the Review of the Mental Health (Scotland) Act 1984 by a Committee chaired by the Rt Hon Bruce Millan (SE/2001/56)

Renton & Brown

Renton & Brown's Criminal Procedure (6^th edn ed Sir Gerald H Gordon QC) (Edinburgh)

Part 1 Introduction

Terms of reference

In October 2001 we received the following reference

^[2]

"(1) To consider –

(a) the tests to establish insanity (either as a defence or as a plea in bar of trial) and the plea of diminished responsibility; and

(b) issues of the law of evidence and procedure involved in raising and establishing insanity and diminished responsibility; and

(2) To make recommendations for reform, if so advised; and

(3) Consequent upon any such recommendations for reform, to consider what changes, if any, should be made to the powers of the courts to deal with persons in respect of whom insanity (either as a defence or as a plea in bar of trial) or diminished responsibility has been established."

We received the reference following the report of a committee chaired by the Rt Hon Bruce Millan, which undertook a comprehensive review of the Mental Health (Scotland) Act 1984.

^[3]

^[4]

The bulk of the Millan Committee's recommendations have been implemented by the Mental Health (Care and Treatment) (Scotland) Act 2003. This Act is mainly concerned with the civil law on mental health. By contrast, our project concentrates on specific aspects of the criminal law relating to persons with mental disorder. The provisions of our bill, if enacted, would form another part of the process of reform of the law relating to mental health.

The Criminal Procedure (Scotland) Act 1995

1.4

Since the time of its enactment the Criminal Procedure (Scotland) Act 1995, which is a consolidation statute, has been the subject of numerous amendments. As a consequence the Act has become cumbersome in form and difficult to use. Moreover, the Scottish Executive has announced that the main provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003, which makes extensive and complicated amendments to the 1995 Act, will be brought into force in April 2005. In view of the fact that the amendments are relevant to our recommendations, we have decided to proceed on the basis that all the amendments to the 1995 Act have been commenced. Accordingly, our recommendations and the provisions of the draft bill annexed to this report

^[5]

^[6]

Consultation

The topics covered by our reference involve a wide range of issues in both law and mental health. At the start of the project we held a seminar with a view to discovering current thinking on these issues. The seminar was attended by academic lawyers as well as legal and medical practitioners, and helped us considerably in identifying and developing the principles which were the subject of our proposals for reform. Our thanks are due to the speakers and the other participants who contributed to the seminar proceedings.

^[7]

Our Discussion Paper on Insanity and Diminished Responsibility was published in January 2003.

^[8]

^[9]

We also held a meeting with a number of experts in the field of mental health to discuss various matters arising from the responses to the Discussion Paper. This meeting was extremely valuable for our task of ensuring that our recommendations for reform of the law cohered with medical practice.

^[10]

In the course of preparing our draft bill we consulted with the Crown Office on a number of issues relating to criminal procedure and the workings of the 1995 Act. We wish to record our thanks for this assistance.

Disposals

1.9

Our terms of reference do not extend to a wide-ranging review of the disposals available to the courts in cases involving mentally disordered persons, and our recommendations make only incidental reference to the powers of the criminal courts in relation to mental disorder. Nonetheless, we wish to say something at this stage on disposals for there are clear links between the tests for what constitutes insanity and the consequences of a finding that an accused person is insane.

1.10

Indeed historically much of the concern with insanity (and to a lesser extent, diminished responsibility) has been with what happens to persons who use a state of mental disorder as a defence or a plea. Consider the famous example of James Hadfield. In 1800 Hadfield was found to be insane on a charge of the attempted murder of George III. The result was that he received an outright acquittal. Public and political reaction to this case led to the enactment of the Criminal Lunatics Act 1800 which required the courts in England to order anyone who had been acquitted by reason of insanity of various serious offences to be detained until His Majesty's pleasure be known. In modern times virtually every legal system regards a verdict of insanity as something less than a complete acquittal; for despite the acquittal, the accused is still subject to the powers of the court. Indeed, until recently in Scotland (in common with other legal systems in the United Kingdom) a verdict of insanity required the courts to order the detention of the accused for an indefinite period in a mental hospital. A similar approach was used in respect of persons found insane in bar of trial.

1.11

The fact that a finding of insanity had a direct consequence on the disposal of a case involving an insane accused had a significant influence on the development of the definition of insanity. When insanity acted to provide an acquittal simpliciter, there was an obvious public interest in restricting its scope, for the effect of the defence was to place persons who had already committed criminal, including violent, acts beyond any form of social control. By contrast, when the consequence of a verdict of insanity was that the accused had to be committed to a mental hospital, the concern was that the defence might be over-inclusive and cover persons who, though in some way mentally abnormal, did not require such drastic treatment.

1.12

However in the modern law the approach to the disposal of cases involving mentally disordered persons is quite different.

^[11]

(a) a compulsion order authorising the detention of the person in hospital;

(b) a compulsion hospital order coupled with a restriction order;

(c) an interim compulsion order;

(d) a guardianship order;

(e) a supervision and treatment order; and

(f) a discharge with no further order made.

Accordingly, the court has considerable flexibility in dealing with persons who fall within the definition of insanity. Furthermore, the 1995 Act provisions require the court to make a disposal appropriate to the circumstances of each individual accused person reflecting his condition at the time of the disposal.

^[12]

Accordingly, a crucial characteristic of the 1995 Act provisions is that a finding of insanity (either as a defence or a plea in bar) has no necessary consequences in respect of the ultimate disposal of the case against the accused. The question of what constitutes insanity and the question of what follows from a finding of insanity have been separated into different legal compartments. As a consequence, in this project we have been able to focus on issues relating to the definition of insanity free from any implications as regards disposal.

1.15

Matters are to some extent different in respect of diminished responsibility. This plea arises only in cases of murder and, if successful, its effect is that the accused is liable to a conviction for the lesser charge of culpable homicide. But even so the powers of the court are at the core of diminished responsibility, for its rationale is to give courts a sentencing discretion in cases of unlawful killing which they possess if an accused is guilty of culpable homicide but not if guilty of murder.

^[13]

Statistics

A further matter with a bearing on the context of our recommendations is the statistical data on the use made of the defence and the pleas and the outcome of cases where they are involved.

^[14]

As regards cases involving insanity (either as a defence or as a plea in bar), perhaps the main point to bear in mind is their statistical rarity. The annual Statistical Bulletin on Criminal Proceedings in Scottish Courts sets out statistics on the number of persons proceeded against in the criminal courts. The Bulletin also provides figures for the main disposal used against all persons in respect of whom a criminal charge has been proved.

^[15]

^[16]

^[17]

A more useful source of information is the report of a research project on the operation of Part VI of the 1995 Act.

^[18]

^[19]

Of the 37 cases involving only the plea in bar the accused was found insane in bar in 29, and after the resulting examinations of facts, the facts were established in 22 of these cases. The disposals made in this last group of cases were 16 hospital orders, four treatment and supervision orders, one guardianship order, and in one case no order was made.

^[20]

^[21]

Data on the use of diminished responsibility are not readily available. The plea arises only in connection with charges of murder. Although figures exist for the number of murder cases,

^[22]

^[23]

Galbraith v HM Advocate

^[24]

The majority of those who responded were of the view that there had been an increase in the use of the plea as a result of that case. One advocate told us that even before Galbraith the Crown would often be prepared to accept a plea of guilty to culpable homicide even if the accused's condition did not fall strictly within the scope of the plea as then defined. Another perceived consequence is in relation to the effect of disposal of cases where a plea of diminished responsibility was successful. Prior to Galbraith, many cases resulted in a hospital order, whereas since that case the courts were thought to impose sentences of imprisonment (including life sentences) more frequently than before.

Main recommendations for reform

1.22

Part 2 of the Report deals with the insanity defence. We recommend that the common law defence should be replaced by a statutory defence that an accused lacked criminal responsibility by reason of mental disorder. The defence would apply where at the time of the offence the accused was unable by reason of mental disorder to appreciate the nature or the wrongfulness of his conduct. The definition of the defence would not contain any reference to volitional incapacities of the accused. In addition the condition of psychopathic personality disorder would be excluded from the scope of the defence.

1.23

Part 3 deals with the plea of diminished responsibility. We recommend that the definition of the plea should be set out in statute on substantially the same basis as formulated in the decision of Galbraith v HM Advocate, namely that the accused's ability to determine or control his conduct was substantially impaired by reason of mental abnormality. Unlike the common law, the statutory test for the plea would include abnormality in the form of psychopathic personality disorder. We also recommend that the statute should make clear that a state of acute intoxication does not by itself constitute diminished responsibility but that such a state would not prevent the plea being proved if there is some other basis for establishing it. The plea would apply only in cases of murder and its effect would be that an accused who would otherwise be convicted of murder would be convicted instead of culpable homicide.

1.24

Part 4 of the report deals with insanity as a plea in bar of trial. We recommend that the common law plea should be replaced by a statutory plea called 'unfitness for trial.' The general test for the plea should be that an accused person is unfit for trial where as a consequence of his mental or physical condition at the time of the trial he lacks the capacity to participate effectively in the proceedings against him. In addition the test for the plea is to include a non-exhaustive list of skills or activities which would indicate such lack of capacity. The fact that an accused experiences loss of memory of the events forming the basis of the charge against him should not by itself constitute unfitness for trial.

1.25

Part 5 deals with matters of evidence and procedure in relation to the defence based on mental disorder, diminished responsibility and unfitness for trial. The burden of proof for the new defence based on mental disorder should be on the accused, who has to establish it on the balance of probabilities. A similar rule should apply in respect of diminished responsibility. The Crown would not be able to raise the defence based on the accused's mental disorder. This defence is to be a special defence. In addition the plea of diminished responsibility is to be treated as if it were a special defence for the purpose of giving advance notice. There should be no change to the existing law whereby the issue of an accused being unfit for trial may be raised by the accused, the Crown or by the court. Where the issue of the accused's unfitness for trial has been raised, the court should find the accused unfit if so satisfied on the balance of probabilities.

Legislative competence

1.26

A matter which calls for consideration is whether the terms of our draft bill fall within the legislative competence of the Scottish Parliament.

^[25]

^[26]

A further requirement of legislative competence is that an Act of the Scottish Parliament must be compatible with the rights set out in the European Convention on Human Rights.

^[27]

^[28]

Part 2 Insanity as a defence

Introduction

In this Part we set out our recommendations for the reform of the law relating to insanity as a defence. The starting-point for considering the current law is a passage in Hume's Commentaries:

^[29]

"We may next attend to the case of those unfortunate persons, who have to plead the miserable defence of idiocy or insanity. Which condition, if it is not an assumed or imperfect, but a genuine and thorough insanity, and is proved by the testimony of intelligent witnesses, makes the act like that of an infant, and equally bestows the privilege of an entire exemption from any manner of pain; 'Cum alterum innocentia concilii tuetur, alterum fati infelicitas excusat.' I say, where the insanity is absolute, and is duly proved: For if reason and humanity enforce the plea in these circumstances, it is no less necessary to observe such a caution and reserve in applying the law, as shall hinder it from being understood, that there is any privilege in a case of mere weakness of intellect, or a strange and moody humour, or a crazy and capricious or irritable temper. In none of these situations does or can the law excuse the offender: Because such constitutions are not exclusive of a competent understanding of the true state of the circumstances in which the deed is done, nor of the subsistence of some steady and evil passion, grounded in those circumstances, and directed to a certain object. To serve the purpose of a defence in law, the disorder must therefore amount to an absolute alienation of reason, 'ut continua mentis alienatione, omni intellectu careat,' - such a disease as deprives the patient of the knowledge of the true aspect and position of things about him, – hinders him from distinguishing friend or foe, - and gives him up to the impulse of his own distempered fancy."

To a large extent Scots law has moved little from Hume's definition, and the phrase 'absolute alienation of reason' is still regarded as at the core of the defence in the modern law. In HM Advocate v Kidd,

^[30]

"[I]n order to excuse a person from responsibility for his acts on the ground of insanity, there must have been an alienation of the reason in relation to the act committed. There must have been some mental defect, to use a broad neutral word, a mental defect, by which his reason was overpowered, and he was thereby rendered incapable of exerting his reason to control his conduct and reactions. If his reason was alienated in relation to the act committed, he was not responsible for that act, even although otherwise he may have been apparently quite rational. What is required is some alienation of the reason in relation to the act committed.

…

direct you therefore that you should dispose of this question in accordance with the directions which I have given, which briefly are, that there must be alienation of reason in regard to the act committed, otherwise the question is one for you to decide whether the accused was at the time of sound or unsound mind."

In Brennan v HM Advocate,

^[31]

The remaining modern authority to consider is Cardle v Mulrainey

^[32]

Ross v HM Advocate

^[33]

^[34]

"Where, as in the present case, the accused knew what he was doing and was aware of the nature and quality of his acts and that what he was doing was wrong, he cannot be said to be suffering from the total alienation of reason in regard to the crime with which he is charged which the defence requires. The sheriff found in finding 16 that the respondent's ability to reason the consequences of his actions to himself was affected by his ingestion of the drug. The finding narrates that he was unable to take account in his actions of the fact that they were criminal in character and to refrain from them. But this inability to exert self-control, which the sheriff has described as an inability to complete the reasoning process, must be distinguished from the essential requirement that there should be total alienation of the accused's mental faculties of reasoning and of understanding what he is doing."

An important factor in the general development of the law on insanity as a defence is the set of rules which derive from the case of Daniel M'Naghten in 1843. M'Naghten suffered from a form of mental disorder as a result of which he believed that he was being persecuted by various bodies in authority, including the Tory Party. He sought to kill the Tory Prime Minister Sir Robert Peel, but shot and killed instead Peel's private secretary whom he had mistaken for the Prime Minister. At his trial for murder M'Naghten was given a special verdict of insanity. Although M'Naghten was committed to a mental hospital as a result of this verdict, his acquittal gave rise to considerable public and Parliamentary debate which in turn led to the House of Lords, in its legislative capacity, inviting the judges to attend the House to answer questions clarifying the law on insanity. The responses of the judges to these questions became known as the M'Naghten Rules and continue to constitute the law on insanity not only for English law but also for many other legal systems in the Anglo-American tradition. The key part of the Rules lies in the following passage:

^[35]

"[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."

It is probably the case that the M'Naghten Rules do not represent the current Scots law on insanity.

^[36]

^th

^[37]

^[38]

Option of no change to the current law

The first option for consideration is whether there is any need to change the existing law on insanity as a defence. There are several strands of argument in favour of leaving the law as it is. First, unlike many other jurisdictions (especially those using some variant of the M'Naghten Rules), Scots law has avoided any deep-rooted controversy about the definition of the defence of insanity. Secondly, in its practical operation the definition in Scots law does not appear to have presented any major problems. The test is a broad one, almost a jury question, which can be easily adapted to the facts and circumstances of each individual case.

^[39]

However we do not support the option of leaving the law as it is. In our view there are good reasons for reforming the law on the defence of insanity.

2.9

In the first place, whatever the substantive merits of the current test, it is expressed in old-fashioned language.

^[40]

Brennan v HM Advocate

^[41]

"We ask ourselves first of all the fundamental question: what is insanity, according to the law of Scotland, for the purpose of a special defence of insanity at the time? The question has nothing to do with any popular view of the meaning of the word 'insanity,' nor indeed is it a question to be resolved upon medical opinion for the time being. It is, on the contrary, a question which has been resolved by the law itself as a matter of legal policy in order to set, in the public interest, acceptable limits upon the circumstances in which any person may be able to relieve himself of criminal responsibility."

We accept the general point made by Lord Emslie in this passage that the approaches towards the insanity defence taken by the disciplines of law and medicine are not identical. But it is also the case that they are not in conflict with each other. For the law to determine acceptable boundaries of criminal responsibility it must refer to medical concepts. The effect of the present law is to create difficulties for expert witnesses in providing the courts with the medical information needed to give effect to the legal test in individual cases. The Millan Committee expressed this point as follows:

^[42]

^th

^[43]

^[44]

Secondly, the substance of the existing test has not been without criticism. It is not entirely easy to say what the test includes and what it excludes. Cases such as HM Advocate v Kidd suggest that the test is wider than that in the M'Naghten Rules but are not clear as to what the further elements are. Does the test include conditions of irresistible impulse, or all volitional incapacities? Does it include any type of personality disorder, and if so which (for example, psychopathy)? What is the required causal connection between the accused's mental state and his criminal conduct? More recent decisions, such as Brennan v HM Advocate and Cardle v Mulrainey, contain dicta suggesting that the test is confined to something very like that of the M'Naghten Rules. In addition the existing law can be criticised as being too vague. The charge to the jury in HM Advocate v Kidd lays stress on the fact that the decision is broadly a 'jury question' but juries directed in this way will have difficulty in determining exactly what factors are or are not relevant to their decision-making.

2.12

In our Discussion Paper we proposed that the test of insanity as a defence should be reformed and put on a statutory basis. There was widespread support for this proposal from our consultees. A point emphasised in several responses was the need to make the law more consonant with current medical understanding of mental disorder. Moreover, the existing law was said to cause problems in the presentation of evidence by mental health expert witnesses.

2.13

We take the view that the existing test for the defence of insanity requires reform. The substance of the test is uncertain and its language obsolete. Furthermore we believe that statute is the appropriate mechanism for reform. One reason why the law is so undeveloped is the relative paucity of cases in which insanity is raised.

^[45]

^[46]

Accordingly we recommend that:

1. The common law test for insanity as a defence should be abolished.

(Draft bill, section 5)

Abolition of insanity as a defence

2.15

A radical approach to the reform of the defence is that it should be abolished altogether. Abolition of the insanity defence has been considered in academic literature for some time.

^[47]

^[48]

In the 1980s some states in the USA enacted measures to abolish the insanity defence.

^[49]

^[50]

In the Discussion Paper we also identified an objection in principle to abolition of the defence of insanity. The defence gives effect to a fundamental principle of the criminal law, namely that where a person suffers from a severe mental disorder it is unfair to hold that person criminally responsible. That is so whether or not that person could have the mens rea for the offence charged and whether or not that person could understand and participate in his trial. Abolition of the defence fails to give effect to this basic principle. The Royal Commission on Capital Punishment which reported in 1953 noted that it "has for centuries been recognised that, if a person was, at the time of his unlawful act, mentally so disordered that it would be unreasonable to impute guilt to him, he ought not to be held liable to conviction and punishment under the criminal law."

^[51]

^[52]

We recommend that:

2. The defence of insanity should be retained as part of Scots criminal law.

(Draft bill, section 1)

Name of the reformed defence

2.19

We are of the view that the reformed defence should no longer use the term 'insanity.' This word was once used in both law and medicine,

^[53]

^[54]

^[55]

In the Discussion Paper we noted that in the civil law the general term used is 'mental disorder' and we proposed that the criminal law should use the same terminology. All of our consultees who commented on these proposals accepted that the term 'insanity' should no longer be used as the name of the defence. Some, however, expressed doubts whether the phrase 'mental disorder' was an appropriate replacement, though the substance of their concerns was directed not to the name of defence but to the separate issue of the definition of mental disorder.

^[56]

Our initial response to the views of consultees was to adhere to our proposal that the defence should be re-named 'mental disorder.' However, after further reflection we have changed our approach. One difficulty is that we recommend later that one constituent part of the test for the defence should be the presence of a mental disorder at the time of the offence. But that element is not the only part of the proposed definition. We are concerned that confusion might follow if the name of the defence was the same as one of its constituent parts.

2.22

Moreover, we discovered a more pragmatic objection to naming the defence 'mental disorder.' Part VI of the Criminal Procedure (Scotland) Act 1995, the provisions of which deal with the disposals following from the defence being established, is headed 'Mental Disorder.' That phrase is also used in many of the provisions of Part VI. For the purposes of Part VI mental disorder is defined in a way that is less specific than the definition of the defence which we propose. We take the view that further confusion would arise if Part VI of the 1995 Act used that same term to refer to a defence which has its own particular definition.

2.23

A further advantage of a more distinctive name for the defence is that it would emphasise that the defence reflects issues of legal policy and not simply the use of purely medical concepts. The difficulty is in identifying a suitable name. One approach is to use the analogy of diminished responsibility.

3. The defence dealing with the criminal responsibility of persons with mental disorder should no longer be known as the 'insanity' defence.

(Draft bill, section 1)

Constituent elements of the defence

2.25

The presence of mental disorder. The first element of the defence is the requirement that at the time of the offence the accused suffered from a mental disorder (variously described in the present criminal law as a mental defect or disease, or a disease of the mind in terms of the M'Naghten Rules). In other words, in the absence of a mental disorder there will be no basis for the defence. We consider shortly the question whether mental disorder is a sufficient precondition for establishing the defence. The point for immediate consideration is what is to be understood by mental disorder.

2.26

The Mental Health (Care and Treatment) (Scotland) Act 2003 defines mental disorder for the purposes of that Act as any (a) mental illness; (b) personality disorder; or (c) learning disability.

^[60]

^[61]

In the Discussion Paper we proposed that, although the test for the defence should use the criterion of the presence of mental disorder, the term should not itself be defined. This proposal was based on the view that mental disorder played a different role in civil law (identifying the persons who fell within the care and treatment provisions) from that in the criminal law (attribution of criminal responsibility). Moreover, the presence of mental disorder was simply one part of the defence in criminal law and we envisaged that most of the focus of the defence in operation would be on the other elements rather than on the presence or absence of mental disorder.

2.28

Some consultees agreed with this proposal. Others did not, including, significantly, many of those involved in the practice of mental health and criminal justice. Those consultees made a number of arguments against our original proposal. (1) It was thought to be undesirable to use the same term but with different meanings in the general context of legislation relating to mental health. (2) If the term was not defined for purposes of the defence, mental health experts would tend to use the civil law concept with which they were familiar. (3) There was a danger that if mental disorder was undefined, the defence might seem over-inclusive. Diagnostic categories used by psychiatrists extend to a very wide range of conditions, many of which have no bearing on issues of criminal responsibility. As a result there might be excessive, and wasteful, concentration on what should simply be a threshold matter (ie whether or not the accused had a mental disorder at the time of the offence). (4) If it was thought that the defence should not extend to any particular type of disorder or condition, this could be done by way of specific exclusion.

2.29

We are persuaded by these arguments. It is desirable that, as far as possible in the practical workings of the defence, there should not be extended discussion of the general question whether or not the accused had a mental disorder at the time of the offence. We accept that there would be a danger of this outcome arising if the criminal law contained no definition of mental disorder. We also take the view that using the general definition from the civil law would not exclude any relevant condition which should come within the ambit of the defence, and that any inappropriate condition falling within that definition can be specifically excluded from the defence.

^[62]

^[63]

We recommend that:

4. The test for the defence should require that at the time of the alleged offence the accused had a mental disorder. The term 'mental disorder' should be defined as meaning (a) mental illness; (b) personality disorder; or (c) learning disability.

(Draft bill, sections 1(1); 8)

2.31

Connecting link (causation). A second part of the test for the defence deals with an issue which has been controversial in much of the discussion of the insanity defence. This concerns the link between the accused's mental condition and his criminal act. Given that at the time of the offence the accused had a mental disorder, what impact did the disorder have on the accused's conduct in order to remove his criminal responsibility for it? One response is that the presence of mental disorder by itself is sufficient to make an accused lack criminal responsibility. Another (which we favour) is that in order to remove criminal responsibility the mental disorder must have a specific type of effect on the accused's reasoning when he committed the relevant act.

2.32

There are two variants to the approach that the presence of mental disorder is a sufficient basis for the defence. The first takes the defence as a form of 'status' defence. The fact that a person has a mental disorder makes that person unsuitable for the application of the rules of the criminal justice system.

^[64]

all

A variant of the status approach is to argue that in the vast majority of cases, especially where the mental disorder is severe, it can be assumed that there is an appropriate link between the disorder and the criminal conduct. This was the approach adopted by the Butler Committee who argued that:

^[65]

"It is true that it is theoretically possible for a person to be suffering from a severe mental disorder which has in a causal sense nothing to do with the act or omission for which he is being tried: but in practice it is very difficult to imagine a case in which one could be sure of the absence of any such connection."

This approach has been strongly criticised by various commentators who point out that the lack of a connecting link is more than merely theoretical. For example, the committee of expert lawyers who reported to the Law Commission on codification of the criminal law put the matter as follows:

^[66]

"The [Butler] Committee proposed, in effect, an irrebuttable presumption that there was a sufficient connection between the severe disorder and the offence. This certainly simplifies the tasks of psychiatric witnesses and the court. Some people, however, take the view that it would be wrong in principle that a person should escape conviction if, although severely mentally ill, he has committed a rational crime which was uninfluenced by his illness and for which he ought to be liable to be punished. They believe that the prosecution should be allowed to persuade the jury (if it can) that the offence and the disorder were unconnected."

We agree with the conclusion set out in the above passage. Various practical problems might arise if proof of a mental disorder was all that was required to excuse a person from responsibility for any type of criminal conduct. What advice should a practitioner give to a client with a mental disorder who is charged with a speeding offence unrelated to his condition? This is not a question of what is the appropriate treatment for such a person, for a conviction on a minor criminal charge would not rule out a mental health disposal if the appropriate criteria were met in the circumstances of the case. More fundamentally this approach fails to bring out exactly how some (but not all) forms of mental disorder operate to affect criminal responsibility. We believe that a person should be treated as responsible where any disorder, mental or physical, has no bearing on his criminal actings. One purpose of the definition of the defence is to allow the law to make a clear statement of the reasons for holding some people who have a mental disorder as not responsible for their conduct.

2.36

In the Discussion Paper we rejected the idea that the mere presence of a mental disorder should be sufficient in establishing the defence. Instead, we proposed that the test for the defence should identify the particular effect of the mental disorder which provides the rationale of the defence.

^[67]

Accordingly we recommend that:

5. The defence should be defined in terms of a specific effect on the accused's state of mind which has been brought about by his mental disorder.

(Draft bill, section 1(1))

2.38

Specific effect of mental disorder on criminal conduct. The defence based on mental disorder should specify the precise effect of the disorder in order to show why it is the case that a mentally disordered person who engages in criminal conduct is lacking responsibility for it. In the Discussion Paper we noted one approach to this issue, the so-called 'product' test.

^[68]

To understand how mental disorder can have an effect on a person's responsibility for conduct, it is necessary to examine the nature of the relationship between mental disorder and action. This link is usually referred to as involving causation, but this term is not completely appropriate, and we prefer to use the expression 'connecting link.' The concept of causation suggests some sort of physical or behavioural link between mind and body. For example, a person suffering from an epileptic seizure or a hypoglycaemic episode might strike out and hit someone else. In this sort of case it makes sense to say that the epilepsy or the diabetes caused the person's conduct. But most instances of mental disorder do not involve this sort of causal effect on action, as explained by Professor Finbarr McAuley:

^[69]

"But diseases do not always affect behaviour in this way. Much more frequently, they do so through the medium of psychological states, such as thoughts, beliefs and desires. For example, Huntington's chorea and Pick's disease – both forms of genetically transmitted arteriosclerosis – typically affect the cerebral blood supply in a way that may lead to mental confusion and, consequently, to grossly anti-social behaviour on the part of those suffering from them. Similarly, victims of a functional disorder like paranoia sometimes have extremely violent reactions as a direct result of their condition.

But notice that a completely different type of causation is at work in these examples. Here the disease causes the defendant to do something by influencing the content and direction of his thoughts and feelings (paranoia) or by generally interfering with his thought processes (Huntington's chorea and Pick's disease). Thus what follows are actions, not mere movements of the defendant's body such as might occur in the course of an epileptic seizure or during an attack of St Vitus' dance. In the result, the question of the defendant's responsibility for what happened arises in such cases in a way that it does not arise in cases where the effects of the disease are not mediated by psychological states."

Mental disorders do not typically deprive persons of all control over their behaviour. More usually their effect is to lead to such persons having unusual or distorted motivations and reasons for actings. In our view it is this particular effect of mental disorder which is at the core of the defence and the legal definition should specify the manner in which the disorder affected the accused's reasoning at the time of the acting. Unless the test for the defence spells out the manner in which the accused's reasons for acting as he did are in some way disordered, it becomes difficult to see the accused's mental state as giving rise to a question of his criminal responsibility.

2.41

Accordingly, our approach to the connecting link issue is that the defence should be defined in terms of specific and particular effects which the accused's mental disorder had on his reasons and motivations for engaging in criminal conduct. In general terms these effects must be such as to justify holding the accused not responsible for that conduct. Under the present law of Scotland these effects are defined in terms of a 'total alienation of reason.' As already noted, the problem with this expression is its old-fashioned language, especially the word 'alienation.' The phrase is ambiguous between indicating (a) a total lack of the power of reasoning and (b) a form of reasoning which is totally lacking in meaning. The current law does not succeed in locating the connecting link between mental disorder and criminal conduct and the question for us then is to suggest a better formulation of this link.

2.42

Mental disorder and appreciation of conduct. Traditionally, definitions of the defence have focussed on two basic elements as to the effect of the mental disorder suffered by the accused. One is cognitive, that is, concerned with the nature of the accused's knowledge about his actings. The second is volitional, relating to the nature of the accused's control over his conduct. We consider volitional aspects of the defence later.

^[70]

In the Discussion Paper we proposed that the reformed test for the defence should use the cognitive concept of appreciation of conduct. We emphasised that this concept was much wider than that of mere knowledge as used in the M'Naghten Rules. The majority of consultees who commented on this proposal agreed with it. Given that the concept is a new one in Scots criminal law, we wish to give a detailed account of the role it should play in the reformed defence.

2.44

The place of a cognitive element in the definition of the defence has not been without controversy. Indeed, the standard criticism of the M'Naghten Rules in English law has been that the Rules focus solely, and narrowly, on cognitive aspects and exclude all volitional aspects. However it is important to be clear as to the reasons for the criticisms of the M'Naghten Rules. Leaving aside volitional elements (which we consider later), the defect in the Rules is not that they refer to cognitive concepts but that as the Rules have been interpreted by the courts they use an inappropriate conception of cognitive aspects of the mind. This point is significant. If anything is to be learned from the weaknesses of the Rules it is not that the law on insanity has nothing to do with cognitive questions.

^[71]

Consider in this regard the standard criticisms of the requirement under the Rules that the accused did not know the nature and quality of his act. Take the case where a woman kills her children by smothering them with a pillow. She does this in the belief that in doing so she will drive out demons from their souls or because she thinks that her failings as a parent mean that death is the only suitable option for them. Can such a woman be said to know the nature and quality of her act? In one, narrow, sense which accords with the M'Naghten Rules in many legal systems,

R v Porter

"The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong."

In our view the particular value of the concept of appreciation is that it connotes something wider than simple knowledge and includes a level of (rational) understanding. It therefore avoids the narrowness of the M'Naghten Rules, as they have been traditionally interpreted. Moreover, appreciation is an idea which has been used in the insanity defence in other legal systems. For example, the American Law Institute's Model Penal Code states the test as follows:

^[77]

"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 ... to appreciate the criminality [wrongfulness] of his conduct."

Similarly, the Criminal Code of Canada contains a provision on the defence of mental disorder:^[78]

"No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong."

In discussing definitions of insanity in those systems Gordon notes that " '[a]ppreciation' is a wide enough term to cover all aspects of the conduct – its nature, its consequences, its moral value, and its legal effect."^[79]

We would stress that we are not suggesting that Scots law should adopt the M'Naghten Rules, as those Rules exist in English law (or indeed in any other legal system). Although the M'Naghten Rules correctly identify cognitive failing as a central element of the defence, the Rules as commonly interpreted take too narrow a view of what is involved in the idea of cognitive failing. Indeed the test we propose can be understood as making explicit, and in modern language, what is implicit in the classic definition to be found in Hume

^[80]

A further point for consultation was that if the idea of appreciation of conduct is placed at the heart of the definition of the defence, is there any need to specify further what the failure to appreciate involves? What exactly is it about his conduct that a mentally disordered person fails to appreciate? The M'Naghten Rules link the accused's cognitive failings to the 'nature and quality' of his acts and to doing 'what was wrong.' In the Discussion Paper we expressed our hesitancy about using such phrases in the new test for the defence. In the first place, there was a danger that the use of expressions similar to those of the M'Naghten Rules might attract the restrictive interpretations which the courts in England have given to those parts of the Rules. Secondly, if we are correct in our argument that the concept of appreciation is wider than that of knowledge as used in the M'Naghten Rules, then any further embellishment of the test would be unnecessary. However, we now consider that 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. Our consultees agreed that the test required some or other further element but there was substantial disagreement as to what it should be.

2.50

We take the view that the appropriate objects of disordered cognition are the nature of the person's conduct and the wrongfulness of that conduct. We are aware that these ideas have a similarity to those used in the M'Naghten Rules but we again emphasise that the test of failure of appreciation gives them a much wider meaning than that attached to them under the Rules (as traditionally interpreted). For example, a person who fires a gun at someone else under the disordered impression that the victim is the devil incarnate may well understand the mechanical steps involved in discharging a firearm. In so far as his action is purposive and directed towards achieving a goal (destroying evil), firing a gun is exactly what he is aiming to do. But although a person in this situation may 'know' the nature of the physical actings he takes, he cannot be said to have a full or proper appreciation of the nature of his conduct (the taking of innocent life). Similarly, a mentally disordered person may fail to grasp what is wrong about his or her actings, although aware that they breach legal or moral norms.

^[81]

Accordingly we recommend that:

6. The defence should be defined in terms of the accused's inability at the time of the offence to appreciate either the nature or the wrongfulness of his conduct.

(Draft bill, section 1(1))

A volitional element

2.52

Volitional aspects of action are concerned with a person's ability to control his conduct. Many legal systems include a volitional component as part of the definition of the insanity defence. The test in the American Law Institute's Model Penal Code includes a clause that as a result of mental disease, the accused lacks substantial capacity "to conform his conduct to the requirements of the law." It may well be that Scots law contains a volitional element. Hume gives as one instance of an accused's absolute alienation that the disorder "gives him up to the impulse of his own distempered fancy." In HM Advocate v Kidd, Lord Strachan stated that:

^[82]

"…in order to excuse a person from responsibility for his acts on the ground of insanity, there must have been an alienation of the reason in relation to the act committed. There must have been some mental defect, to use a broad neutral word, a mental defect, by which his reason was overpowered, and he was thereby rendered incapable of exerting his reason to control his conduct and reactions. If his reason was alienated in relation to the act committed, he was not responsible for that act, even although otherwise he may have been apparently quite rational. What is required is some alienation of the reason in relation to the act committed."

Yet it is not entirely clear that a volitional element is part of Scots law, and even if it is, whether it needs to be part of the definition of the defence. Volitional issues pose major practical questions. How can the law distinguish between someone who could have desisted from criminal conduct but chose not to desist, and someone who could do no other than commit the act? As this question is often put, what is the difference between an irresistible impulse and resistible, but not-resisted, impulse? This issue can only be resolved by looking to the reasons for the person's acting as he did, but this approach leads back to considerations of what are essentially cognitive matters. Legal systems which follow the M'Naghten Rules in their traditional sense have often added a volitional element to avoid the narrowness of the Rules.

^[83]

^[84]

In the Discussion Paper we were inclined to adopt the position that the test for the defence should not contain a volitional element but we did not reach a concluded view on this point. We presented the issue in the form of a question whether the definition of the defence should contain any reference to volitional incapacities or disabilities. Consultees were divided on this question. However most agreed that the wider cognitive criterion of appreciation would cover any relevant volitional failing. About half of the consultees who responded on this issue accepted that there was no need for any volitional element. Two consultees gave clear support for it. It was of some significance that none of the consultees could provide any example where a person might fail the test for the defence on the appreciation criterion but satisfy it purely on a volitional one. It is also worth noting that the mental health experts whom we met were virtually unanimous in rejecting a category of mental disorder which was purely volitional in nature and which had no impact on cognitive functions.

2.55

Some consultees pointed out that a volitional element exists in the current test for the defence in some legal systems (including possibly Scots law). However the existence of a volitional element in the current law can be explained chiefly by the narrowness of the cognitive criteria used in many of the definitions of the defence. We take the view that if the 'appreciation' criterion is to be understood in a wide sense, as we argue that it should, then there is no need for any volitional element. Indeed, there might be dangers in adding on a volitional part to the defence as doing so might give rise to narrow interpretations of the scope of the appreciation element.

2.56

Accordingly we recommend that:

7. The definition of the defence should not contain any reference to volitional incapacities or disabilities of the accused.

Psychopathic personality disorder

2.57

The concept of psychopathy has for a long time been at the centre of controversy across a variety of disciplines.

^[85]

^[86]

^[87]

It is important to stress that our own interest involves the question of the criminal responsibility of persons with psychopathic personality disorder. We are not concerned with the disposal of such persons within the criminal justice system, far less with issues in the civil law and medical practice about the treatment and care of psychopaths. The immediate question for consideration is the relationship between the defence based on an accused's mental disorder and psychopathy. In the Discussion Paper we took the view that it was unlikely that the proposed test for the new defence could be interpreted as applying to that condition (which we there referred to as 'anti-social personality disorder'). We proposed that, to put the matter beyond doubt, the condition should be specifically excluded from the definition of the defence. There was widespread support for this proposition among our consultees, and it is one which we continue to accept.

2.59

We note in the first place that psychopathy (or some similar condition) is excluded from the scope of the defence in many legal systems. For example, the American Law Institute's Model Penal Code contains a provision that the "terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct."

^[88]

^[89]

^[90]

We take the view that the condition of psychopathy does not, and should not, fall within the set of circumstances which we have argued forms the basis of the defence, namely inability to appreciate conduct as a result of mental disorder. We note in the first place that there might well be difficult problems of definition whether psychopathy falls within any of the constituent elements of mental disorder. But even if psychopathy is properly regarded as a form of personality disorder, the condition would not meet the 'appreciation' part of the test for the defence. Psychopathy does not have the effect that the person's reasons for acting as he did are in any way 'abnormal' or 'crazy' or 'disordered.' Rather, psychopathic personality disorder has the effect that because of the psychological make-up of the accused he has difficulties, not shared by the ordinary person, in complying with the requirements of the law. But such difficulties do not remove the person completely from responsibility for his actings. He appreciates what he is doing. At most such a person has difficulties in controlling his conduct but it cannot be said that a psychopath is completely lacking in volitional capacity. We have already recommended that the test for the defence should not contain any volitional element. In any event, if a person could have controlled his conduct at the time but did not do so, he is hardly relieved from responsibility, even if he was suffering from a condition which made it difficult for him to refrain from acting as he did. Any such condition might be an extenuating circumstance but not an excusing one. But psychopathy does not have the effect that a person cannot control his conduct. Its effect is to make it more difficult, but not impossible, for the person concerned to behave in a way that he knows is correct.

^[91]

We would emphasise that we are not proposing that the law should exclude psychopathy from the category of mental disorder. That is an issue for mental health experts. Instead, we are recommending that there should be a rule of law which makes clear that the defence is not open to someone solely on the basis of his having a psychopathic personality. Of course, an accused person would not be prevented from pleading the defence where in addition to psychopathy he had some other mental disorder which did impact on his appreciation of his conduct.

2.62

There remains the problem of definition. Unlike the position in English law,

8. The condition of psychopathic personality disorder should be excluded from the scope of the defence.

(Draft bill, section 1(2))

ECHR implications

2.64

We now consider whether our proposals for the reform of the definition of the defence based on mental disorder are compatible with the requirements of the European Convention on Human Rights. Article 5(1) provides for a general right to liberty and security of a person and states that no one "shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law." One of the specified cases is set out in paragraph (e) of that article which provides for "the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants." The leading decision of the European Court of Human Rights on this provision is Winterwerp v The Netherlands,

^[95]

^[96]

"This term is not one that can be given a definitive interpretation: as was pointed out by the Commission, the Government and the applicant, it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society's attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming more widespread."

The Court also noted that the 'lawful detention' of such persons required that "no one may be confined as 'a person of unsound mind' in the absence of medical evidence establishing that his mental state is such as to justify his compulsory hospitalisation."^[97]

In the present context these provisions are significant for it has been suggested that their effect in English law is to render the M'Naghten Rules, which provide the test for the insanity defence, incompatible with the Convention.

^[98]

Winterwerp

at the time of the disposal

However it is far from obvious that a breach of the Convention is the result of the test used to establish insanity. If anything, any breach is brought about by the provisions which deal with the disposal consequences of the defence. Article 5(1)(e) and the Winterwerp decision are not concerned with insanity as an issue of criminal responsibility but about limits on the power of the state to detain people on the basis of their mental disorder. But the possible detention of persons who are insane (in the sense of the criminal law) is governed by the disposal provisions in the 1995 Act, and not by the test for what constitutes insanity. On this view the Convention has no bearing on the tests for insanity (M'Naghten Rules or the Scottish test or whatever the test may be). Rather the Convention deals with the law on the powers of the court to deal with such persons. It follows, as far as the Convention is concerned, that the test for the defence can be drawn up widely or narrowly and can take into account a whole range of policy considerations. The crucial point for the Convention arises only after the test has been established and the court moves on to the separate stage of disposal.

2.67

It should also be noted that, by virtue of section 57(4) and 57A of the 1995 Act, a court cannot make a compulsion order in respect of an insane accused unless satisfied on the evidence of two medical practitioners (at least one of whom must be a mental health specialist

^[99]

^[100]

To sum up this part of our discussion, our view is that our proposals for the reform of the test for insanity as a defence do not involve any breach of the requirements of the Convention.

Part 3 Diminished responsibility

Introduction

3.1

In this Part we consider the plea of diminished responsibility. The law on diminished responsibility developed from the practice of juries in the 19^th century of returning verdicts of guilty with a recommendation as to mercy or mitigation of sentence to reflect any extenuating circumstances.

^[101]

^th

HM Advocate v Savage

^[102]

"It is very difficult to put it in a phrase, but it has been put in this way: that there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility – in other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through the cases that there is implied ... that there must be some form of mental disease."

This statement became the authoritative version of the test for diminished responsibility. Furthermore, the various factors mentioned by Lord Alness were regarded as being cumulative in nature. The effect was that the test became difficult to satisfy, and the courts adopted the position that the scope of the plea was not to be further widened.

^[103]

A major change to the judicial approach to diminished responsibility was indicated in the Full Bench decision in Galbraith v HM Advocate.

^[104]

Savage

The immediate background to our receiving our terms of reference was the Millan Report, which was published before the decision in Galbraith.

^[105]

Galbraith

A statutory statement of the test for diminished responsibility?

In order to appreciate the issues involved it is necessary to bear in mind what the Court decided in Galbraith. In essence, the decision reformulated the criteria for establishing the plea. In doing so the Court extended considerably the types of condition which could form the basis of diminished responsibility.

^[106]

There were noticeable differences of view in the responses of our consultees. Consultees who did not favour a statutory statement of the law in the main stressed the element of flexibility which would continue to exist if the test were left to the common law. The Galbraith decision itself showed the potential for the development of the law by the courts. Furthermore, if the proposed statutory statement of the law simply replicated the test in Galbraith nothing would be gained by replacing the common law with statute.

3.7

We have given careful consideration to these arguments. Nevertheless it is our view that there should be a statutory formulation of the test for diminished responsibility. We note that the decision in the Galbraith case did not purport to deal with every issue involved with the plea. In Galbraith the Court itself stated that its views were tentative and might have to be modified or refined in later cases.

^[107]

Galbraith

^[108]

It is also worth noting that all other legal systems which have introduced a defence or plea of diminished responsibility have done so by statute.

^[109]

Accordingly we recommend that:

9. The common law test for the plea of diminished responsibility should be abolished.

(Draft bill, section 5)

Abolition of the plea of diminished responsibility

3.10

There seems little basis for a proposal that the plea of diminished responsibility should be abolished. Certainly none of our consultees argued for abolition. It is important to appreciate that whatever conceptual difficulties attend the phrase 'diminished responsibility' the plea has an important practical function. As Gordon notes:

^[110]

^[111]

Abolition might be a plausible option if the mandatory sentence for murder was itself to be abolished. This approach was the preference of the Butler Committee.

^[112]

^[113]

10. The plea of diminished responsibility should be retained as a special instance of a plea in mitigation in cases of murder. Where successful its effect should be that the accused is liable to be convicted of culpable homicide rather than of murder.

(Draft bill, section 3)

Name of the plea

In the Discussion Paper we noted that the term 'diminished responsibility' had itself attracted criticism. In Kirkwood v HM Advocate,

Accordingly we recommend that:

11. The plea should continue to be known by the name 'diminished responsibility.'

(Draft bill, section 3)

The substance of the test

3.14

In the Galbraith case the Court gave various formulations of the new test for diminished responsibility:

^[118]

"In our law diminished responsibility applies in cases where, because the accused's ability to determine and control his actings is impaired as a result of some mental abnormality, his responsibility for any killing can properly be regarded as correspondingly reduced."

"In essence, the judge must decide whether there is evidence that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to determine or control his acts. … The abnormality of mind may take various forms. It may mean that the individual perceives physical acts and matters differently from a normal person. Or else it may affect his ability to form a rational judgment as to whether a particular act is right or wrong or to decide whether to perform it. In a given case any or all of these effects may be operating."

"In essence, the jury should be told that they must be satisfied that, by reason of the abnormality of mind in question, the ability of the accused, as compared with a normal person, to determine or control his actings was substantially impaired."

We noted earlier that the general criteria for the plea (as contrasted with the conditions which were expressly exempted from its scope

^[119]

Galbraith

In the Discussion Paper we also suggested that the test for diminished responsibility should explicitly state that its underlying rationale was that the plea acted as a mitigating circumstance so as to reduce a charge of murder to one of culpable homicide.

^[120]

Accordingly we recommend that:

12. The test for the plea of diminished responsibility should be that by reason of abnormality of mind the accused's ability to determine or control his conduct was substantially impaired.

(Draft bill, section 3(1))

The relationship with the special defence based on mental disorder

3.18

In many situations there will be an overlap between the defence based on mental disorder and the plea of diminished responsibility. Many, if not indeed all, cases of the defence will fall within the test for diminished responsibility. However, part of the formula in the Savage case was that for diminished responsibility there must be a state of mind "bordering on, though not amounting to, insanity." In Galbraith the Court made clear that the first part of this dictum no longer represented the law but it did not consider the second part. At least since the time of the Savage decision, if not earlier, it has been accepted that a plea of diminished responsibility could not be raised where at the time of the killing the accused's mental condition fell within the scope of the insanity defence. This position is implicit in HM Advocate v Harrison,

^[121]

In Part 5 of this Report we examine various matters of evidence and procedure in relation to the special defence and the plea of diminished responsibility. One recommendation which we make is that the Crown should have no right to raise the special defence, even in the limited circumstances where the accused has pled diminished responsibility to a charge of murder.

^[122]

^[123]

With the disappearance of any issue of the public interest, we doubt whether there is now any merit in continuing to disallow a plea of diminished responsibility where the accused's condition falls within the scope of the special defence. The choice of which defence or plea to raise is a matter for the accused to decide. In the vast majority of cases where there is evidence proving the defence based on mental disorder, the accused will give notice of that defence. Where the evidence is on the borderline between the defence and the plea, the accused will normally plead both. Under the present law no advance notice has to be given of diminished responsibility. Where in a murder case the accused pleads the special defence, in certain circumstances the jury may be directed to consider the issue of diminished responsibility. In Galbraith the Court noted:

^[124]

"Provided, however, that the impairment of the functioning of the mind was substantial, that is sufficient. It is neither necessary nor appropriate to stipulate that the accused's mental state should have bordered on insanity.

Of course, where a person's mental state does indeed border on what the law regards as insanity, it is likely that the law will regard his responsibility as diminished. And in the, nowadays, comparatively rare case where the accused lodges a special defence of insanity at the time of the killing, it may well be appropriate to direct the jury that, if they find that the accused was not insane, they should nevertheless go on to consider whether his mental state bordered on insanity - in which event they would convict of culpable homicide."

In Part 5 we recommend that diminished responsibility should be treated as if it were a special defence for the purpose of lodging advance notice.

^[125]

A more problematic situation might arise, at least in theory, where the accused gives notice only of the plea but the evidence suggests that his condition amounted to the special defence. Under the existing law diminished responsibility would not be available. Furthermore, a consequence of our recommendation that the Crown cannot raise the special defence would be that if the accused did not give notice of the defence he could not be found to be of diminished responsibility but would instead be found guilty of murder. In order to avoid the paradoxical outcome of an accused being convicted of an offence despite lacking criminal responsibility, the accused would have to avail himself of a defence which he does not want. Although we find it difficult to envisage how this scenario would ever arise in practice, we consider that the law should not allow for its possibility.

3.23

Accordingly we recommend that:

13. The plea of diminished responsibility should not be excluded solely by the fact that the accused's condition at the relevant time fell within the scope of the defence that the accused lacked criminal responsibility because of mental disorder.

(Draft bill, sections 3(1), (2); 8)

The psychopathy exclusion

3.24

In Galbraith the Court stated that the condition of psychopathic personality disorder could not be the basis for a plea of diminished responsibility. The Court seemed to recognise that in the absence of an explicit exclusion such a condition would fall within the scope of the new definition of the plea:

^[126]

"…since the court is fixing the boundaries of a legal doctrine, there is no inconsistency between the psychiatrists' recognition of psychopathic personality disorder and the decision of the court that the law does not recognise such a disorder as a basis for diminished responsibility. That is a matter of legal policy for the court, and ultimately for the legislature, and not for psychiatrists or psychologists. Similarly, there may be other disorders recognised by such experts which, for sound policy reasons, the court will exclude from the ambit of diminished responsibility."

On this approach the important factor is the policy underlying the exclusion. In Galbraith the Court did not articulate what these policy reasons might be. Instead, it stated that it was following the decision in Carraher v HM Advocate.

^[127]

^[128]

"The proposition argued to us was that a man who cannot be found to be suffering from any diminished responsibility must nevertheless, if there is opinion evidence that he suffers from what is called psychopathic personality, be entitled to be treated as not having a normal responsibility for his actions, if by taking alcohol he brings about a condition of diminished responsibility. That is plainly inconsistent with the decision in Kennedy.^[129] I am of opinion that the plea of diminished responsibility, which, as was said in Kirkwood's case,^[130] is anomalous in our law, should not be extended or given wider scope than has hitherto been accorded to it in the decisions."

The difficulty is that the decision in Carraher is a doubtful source for ascertaining the policy basis for excluding psychopathic personality disorder from the plea. In Carraher the Court gave two reasons for the exclusion. The first was the goal of reducing the scope of the plea of diminished responsibility. However this goal is inconsistent with the approach taken in Galbraith, which seeks to widen the range of conditions covered by the plea. The second policy reason in Carraher was that the weight to be accorded to psychiatric evidence in cases of psychopathy might result in 'trial by psychiatry.'

^[131]

Galbraith

^[132]

In the Discussion Paper we asked whether there were any good reasons for the exclusion of psychopathy from the plea. The majority of consultees who answered this question thought that there were no valid reasons for the exclusion, which should be removed. We agree with this view.

3.28

We discount as a ground for retaining the exclusion any argument based on the public policy of ensuring confidence in the criminal justice system. The idea that there are clear and overwhelming reasons of public policy for excluding psychopathic personality disorder from the scope of the plea is rendered unlikely by the fact that in English law this condition has been recognised as an appropriate basis for the plea for over 40 years,

^[133]

We consider that there are good reasons in principle for allowing this form of personality disorder to fall within the definition of diminished responsibility. A key feature of psychopathic personality disorder is that the person concerned lacks the normal moral and social constraints on his capacity to control his actings. As this condition does not distort his appreciation of what he is doing, it does not serve as a ground for relieving the person from criminal responsibility.

^[134]

^[135]

In addition, we do not accept that removing the exclusion would adversely affect either the practice, or the public perception, of imposing an appropriate sentence where the disorder forms the basis of the plea. It is clearly not the case that a verdict following a successful plea of diminished responsibility necessarily means that the accused gets a light sentence. It is always necessary to bear in mind that diminished responsibility is a mitigating circumstance and not a complete defence. In other words anyone who falls within the scope of diminished responsibility will by definition be convicted of culpable homicide and be liable to a sentence determined by the court. The important point is that the sentence will be one which can be tailored to the circumstances of the individual case.

3.31

The outcome need not be a light sentence. In some cases the court may decide that a life sentence is the appropriate form of disposal. Another disposal might be an order for lifelong restriction which is based on the assessment of the risk which the offender, if set at liberty, would pose to the public at large.

^[136]

and

On the other hand, not all cases of psychopathic personality disorder are the same. It appears to be the practice in England that although in some cases of diminished responsibility based on psychopathy the condition is treated as an aggravating factor in respect of sentencing, in other cases it is treated as an extenuating factor.

^[137]

We take the view that the exclusion of psychopathic personality disorder from the scope of the plea of diminished responsibility is too sweeping and does not allow for those cases where the disorder is truly a mitigating circumstance. We therefore recommend that the common law exclusion should not be reproduced in the statutory version of the plea. We have earlier recommended that the common law relating to diminished responsibility should be abolished.

^[138]

We therefore recommend that:

14. A plea of diminished responsibility should not be excluded solely by virtue of the fact that at the relevant time the accused had any form of personality disorder.

(Draft bill, sections 3(1), (2); 8)

The intoxication exclusion

3.35

In Galbraith the Court held that diminished responsibility could not be based on any mental abnormality (short of actual insanity) brought on by the accused himself taking drink or drugs (or sniffing glue).

^[139]

Brennan v HM Advocate

^[140]

"In the law of Scotland a person who voluntarily and deliberately consumes known intoxicants, including drink or drugs, of whatever quantity, for their intoxicating effects, whether these effects are fully foreseen or not, cannot rely on the resulting intoxication as the foundation of a special defence of insanity at the time nor, indeed, can he plead diminished responsibility."

In the Discussion Paper we expressed our concern that the scope of this exclusion might be misunderstood and we asked whether the law on the relationship between intoxication and diminished responsibility required clarification in statute. What prompted our concern was the possibility that the exclusion might be read, wrongly in our view, as having the effect that merely because the accused was intoxicated at the time, the plea could not be available to him. Consultees were divided on this issue. Most took the view that the present law was already clear. Some consultees offered a different understanding of the existing law from that expressed in the Discussion Paper. One consultee argued that, whatever the present law, acute intoxication should in some cases be the basis for diminished responsibility. In these circumstances, we consider that the position on intoxication and diminished responsibility should be clarified by statute.

3.37

There are four situations which have to be considered. The first is where the accused suffers from some form of addiction to alcohol or other drugs. Formerly such conditions were sometimes referred to as 'chronic' intoxication but this phrasing is misleading and the conditions are better referred to as alcohol (or drug) dependency. It is clear that states of dependency can give rise to conditions which amount to diminished responsibility. Indeed, one of the first cases in the development of the doctrine of diminished responsibility concerned a man who suffered from alcoholism, which brought on occasional attacks of delirium tremens.

^[141]

Brennan

A second situation is where at the time of the killing the accused suffered from a mental abnormality within the scope of the plea and at the same time was drunk (in the sense of acute intoxication). This set of circumstances is illustrated by a recent decision of the House of Lords involving the English law of diminished responsibility. In R v Dietschmann,

^[142]

^[143]

^[144]

The next situation is a variant of the second. An accused person suffering from a state of alcohol or drug dependence was at the time of the unlawful killing in an intoxicated state.

^[145]

The final situation is where at the time of the killing the accused was in a state of acute intoxication but had no mental abnormality in any other sense.

^[146]

Brennan

However one of our consultees has argued that the policy in Brennan should not have the same effect in respect of diminished responsibility, which is essentially a plea in mitigation. It is not impossible to envisage some circumstances where acute intoxication at the time of an offence is a mitigating factor. (Equally in other situations intoxication might be treated as an aggravating factor.) In the Discussion Paper we took the view that acute intoxication by itself could not found a plea of diminished responsibility. We made no proposal to alter this rule and therefore did not consult on the suggestion that the law should be changed. However we believe that the policy basis for the general rule that acute intoxication does not remove criminal responsibility is equally as forceful in respect of a plea which operates in the context of unlawful killing.

^[147]

We therefore recommend that:

15. A state of acute intoxication at the time of an unlawful killing should not by itself constitute diminished responsibility. However, a state of acute intoxication by itself should not prevent diminished responsibility from being established if the intoxication co-existed with, or was the consequence of, some underlying condition which meets the general criteria for the plea.

(Draft bill, section 3(3))

Diminished responsibility in crimes other than murder

3.43

It is not entirely clear whether diminished responsibility extends to crimes other than murder. There are many older non-murder cases where mental abnormality short of insanity was taken into account when the court sentenced an offender.

^[148]

^[149]

There is one case where the judge directed the jury on a charge of attempted murder that if they found diminished responsibility had been established their verdict would be 'guilty of assault under deletion of attempted murder on the ground of diminished responsibility.'

^[150]

HM Advocate v Cunningham

^[151]

Brennan v HM Advocate

^[152]

Galbraith

^[153]

In the Discussion Paper we proposed that diminished responsibility should not be available in respect of offences other than murder. We took the view that the underlying purpose of the plea was to give courts flexibility in sentencing in appropriate cases of unlawful killing. In other words, the plea is to be explained primarily in terms of the mandatory sentence for murder. The majority of our consultees who commented on this proposal agreed with it. Nevertheless, three consultees thought that the plea should extend to a wider range of offences, or at least to cases of attempted murder.

3.46

We can identify four possible bases for extending the scope of the plea beyond murder cases but we do not find any of these arguments convincing. The first is that if diminished responsibility were to apply to all crimes, or some crimes other than murder, this would allow the court to take full account of the accused's condition by giving a lesser sentence. This approach only really makes sense in legal systems which have fixed tariffs for specific offences or guideline sentencing principles which set out a going-rate for particular offences. In such systems it is important to be precise about the offence of which an accused is convicted. In Scotland, however, there are no sentencing tariffs and the High Court has on the whole refrained from pronouncing sentencing guidelines.

^[154]

A second argument for extending diminished responsibility to other crimes is that it provides a means for public acknowledgement that the accused, though guilty, is not deserving of full (or any) punishment. The use of diminished responsibility reflects the level of stigma and blameworthiness appropriate for that offender. This approach involves the general difficulty that there must be greater and lesser gradations of the same offence which parallel the murder/culpable homicide distinction. It also requires that the evidence for diminished responsibility is brought out during the trial itself, which might not always be in the interests of the accused.

3.48

A third argument takes issue with the view that the basis of the plea is to allow the courts to give effect to extenuating circumstances in murder cases and to get round the mandatory sentence which follows a conviction for murder. Instead, it is said, diminished responsibility removes the mens rea which is required for murder. A person who kills when in a state of diminished responsibility lacks wicked intention or wicked recklessness and so cannot be convicted of murder. It is not clear how far this analysis can extend the plea beyond cases of murder and attempted murder (which crimes share the same mens rea

^[155]

Galbraith

^[156]

Drury v HM Advocate

^[157]

Galbraith

Drury

^[158]

Drury

^[159]

A final argument about the scope of offences covered by diminished responsibility relates specifically to attempted murder. In Scots law homicide is split into two separate categories (murder and culpable homicide). Putting aside the matter of the mandatory life sentence, it could be argued that diminished responsibility would still have a role to play in order to avoid convicting of murder persons who kill but do not deserve to be labelled as murderers. By parity of reasoning it might be thought inappropriate to convict persons of attempted murder who, because of their diminished responsibility, would not have been labelled murderers had their crime been completed. The difficulty with this argument is that the analogy between the completed and the inchoate crimes does not hold. If for purposes of fair labelling it is necessary to distinguish between two categories of unlawful killing, then it would equally be necessary to distinguish between two categories of unlawful attempted killing. In practice our law does not recognise the concept of attempted culpable homicide.

^[160]

We do not find any of the arguments about extending the range of the plea to be convincing and accordingly we propose that:

16. The plea of diminished responsibility should not be extended beyond cases of murder.

(Draft bill, sections 3(1); 5)

ECHR implications

3.51

We take the view that there are no ECHR implications involved in formulating a definition of diminished responsibility. We argued earlier that article 5 of the Convention has no application to any test for the special defence based on mental disorder but that it does apply to any mental health disposals which might follow on from it.

^[161]

a fortiori

^[162]

Part 4 Insanity as a plea in bar of trial

Introduction

In this part we consider insanity as a plea in bar of trial. The law on this plea in bar is relatively undeveloped and there are few reported decisions.

^[163]

HM Advocate v Brown

^[164]

"It means insanity which prevents a man from doing what a truly sane man would do and is entitled to do – maintain in sober sanity his plea of innocence, and instruct those who defend him as a truly sane man would do."

The leading case is HM Advocate v Wilson,

^[165]

"Now, what exactly is meant by saying that a man is unfit to plead? The ordinary and common case, of course, is the case of a man who suffers from insanity, that is to say, from mental alienation of some kind which prevents him giving the instructions which a sane man would give for his defence, or from following the evidence as a sane man would follow it, and instructing his counsel as the case goes along upon any point that arises. Now, no medical man says, and no medical man has ever said, that this accused is insane in that sense. His reason is not alienated, but he may be insane [sc in bar of trial] … although his reason is not alienated, if his condition be such that he is unable either from mental defect or physical defect, or a combination of these, to tell his counsel what his defence is and instruct him so that he can appear and defend him; or if, again, his condition of mind and body is such that he does not understand the proceedings which are going on when he is brought into Court upon his trial, and cannot intelligibly follow what it is all about."

Prior to 1995 a finding that a person was insane in bar of trial precluded any consideration of whether he had committed the acts at the basis of the charge against him. Under sections 54-56 of the 1995 Act, where a court

^[166]

^[167]

It is also worth noting that where the court makes a finding that a person who is insane in bar of trial did the act constituting the offence and that there are no grounds for acquitting him, the court has the same powers of disposal as in a case of insanity as a defence.

^[168]

Options of no change and abolition

As there appears to be little criticism of the existing law on insanity as a plea in bar, we must consider whether any reform is required. The Millan Committee identified two particular points, neither of which was concerned with the substance of the law. The first was the use of the term 'insanity'; the second was the nature of the medical evidence which could be used to establish the plea. In the Discussion Paper we argued that these particular issues by themselves justified changes to the law. In addition, we pointed out that there are weaknesses in the substance of the existing law. A major problem is the uncertainty about the exact basis and scope of the plea, features which no doubt reflect the sparse case law on the topic. In particular, the law on insanity as a plea in bar has traditionally been influenced by the law on insanity as a defence. However, the plea in bar involves issues about the appropriateness of using the criminal process against certain types of person.

^[169]

For the sake of completeness we would point out that there is no realistic basis for proposing that the plea in bar should be abolished. As we explain below, the plea gives effect to some fundamental principles of the criminal process and is, moreover, required by article 6 of the European Convention on Human Rights concerning the right to a fair trial.

^[170]

We therefore recommend that:

17. The common law test for the plea of insanity in bar of trial should be abolished and should be formulated in statute.

(Draft bill, sections 4; 5)

Name of the plea

4.8

In our discussion of the special defence, we recommended the word 'insanity' should no longer be used as its name.

^[171]

a fortiori

None of our consultees was opposed to changing the name of the plea. Two of them pointed out that our objections to the word 'incapacity' applied equally to the proposed term 'disability', which is defined in the Disability Discrimination Act 1995 in the context of the specific purposes of that Act. We accept this criticism. In the Discussion Paper we noted that in many legal systems, including England, the plea is known as 'unfitness to plead.' This term has attracted criticism but this is mainly focused on the reference to the act of pleading to an indictment.

^[172]

Accordingly, we recommend that:

18. 'Insanity' as a plea in bar of trial should be re-named 'unfitness for trial.'

(Draft bill, section 4 (adding new 1995 Act, section 53F))

Nature of the test

4.11

In the Discussion Paper we noted that many legal systems, including Scots law, define the plea in bar in relation to various tasks or skills in respect of which the accused's ability to stand trial is measured. We believe that there is value in a test which explicitly refers to such skills. In the Discussion Paper we set out a list of skills, based on comparative research, which would be of relevance in determining the accused's fitness for trial.

^[173]

We believe that the general rationale of the plea in bar in the existing law is that because of a person's mental or physical condition a criminal trial is an inappropriate process for that person.

^[174]

Dusky v United States

^[175]

"the test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him."

Other legal systems have also sought to make more explicit the general context of the accused's cognitive skills which are at the basis of the plea. In English law one of the criteria is expressed in terms of the accused's ability to "understand and reply rationally to the indictment."

^[176]

^[177]

In the Discussion Paper we further noted that the case law under the European Convention on Human Rights used a general principle in terms of the accused's 'effective participation' in the criminal process. The idea of effective participation captures the notion of full or rational appreciation by the accused of the proceedings, which the phrase 'adjudicative competence' expresses. We argued that it was preferable to use the formulation derived from ECHR cases, as it would allow Scots law more easily to adapt to developments in the Convention jurisprudence.

^[178]

On the whole consultees agreed with our broad approach of a definition which set out a general rationale of the plea of unfitness and a non-exhaustive list of activities which illustrated unfitness. In addition there was general support for the rationale being expressed in terms of effective participation. But the responses from consultees identified two particular concerns which we now address.

4.16

One potential problem about our proposed test for the plea in bar is that it is too wide and would extend the plea to persons who should not be covered by it. It could be argued that many people who are subjected to a criminal trial find the process puzzling and perplexing and cannot be said to 'understand' it. There is therefore a danger that the plea could be over-inclusive and extend to people who cannot understand proceedings because of poor education or social background. It would not be sufficient response to say that the accused's legal adviser can always be deemed to act as the proxy or 'interpreter' for him because the general principle of the plea requires that an accused can fully and meaningfully communicate with his lawyer. Nevertheless, we believe that our proposed test does avoid over-inclusiveness. The test requires that what prevents the accused's effective participation in the proceedings is a clinically-recognised condition which has the effect that the accused lacks the capacity for such participation. The nature and effects of such a condition would call for expert evidence, which would focus on the precise manner in which the condition prevented the accused from engaging in any proper process of communication. The plea would therefore include not only cases of mental illness but also severe learning disabilities which affect the accused's ability to understand and participate in criminal proceedings. Requiring the presence of some medically recognised condition has the effect that a plea of unfitness in bar of trial would not be available simply on the basis of poor education or inadequate socialisation (which do not in themselves result in lack of capacity to participate) or being a child.

^[179]

The second concern relates to the inclusion of physical conditions within the scope of the plea. The present law already allows for this possibility,

^[180]

A further difficulty might be the consequences of upholding a plea based on a purely physical condition. The finding of unfitness in bar would lead to an examination of facts. If that procedure established that the accused committed the acts with which he is charged, the court must then make a disposal in terms of section 57(2) of the Criminal Procedure (Scotland) Act 1995 Act. This provision sets out six types of disposal. Five of these are concerned with mental health disposals, which would be inappropriate for persons with physical conditions. The remaining disposal is for the court to make no order, which in effect would be the disposal used in cases of a physical disorder. We do not consider that this situation discloses any mischief requiring a remedy. It should be noted that neither a finding after an examination of facts nor an order under section 57(2) prevents a subsequent trial of the accused. It may also be noted that the effect of any other plea in bar is that the accused is free from any proceedings against him for the crime charged.

4.19

Accordingly, we do not accept that our proposed test is either over-inclusive or gives rise to problems in respect of physical conditions. We therefore recommend that:

19. The test for the plea of unfitness in bar of trial should be that as a consequence of the accused's mental or physical condition at the time of the trial he lacks the capacity to participate effectively in the proceedings against him. The test should include a non-exhaustive list of activities which would indicate such lack of capacity.

(Draft bill, section 4 (adding new 1995 Act, section 53F(1), (2)); schedule, paragraph 4(b))

Exclusion of amnesia

4.20

In Russell v HM Advocate

^[181]

HM Advocate v Brown

^[182]

Russell

Brown

^[183]

"I do not consider that they were intended to be understood, or are capable of being understood, literally as applying to the case of a sane prisoner – in this case one whom all the medical witnesses adduced have pronounced to be completely sane and normal – for so to read them would come near to paralysing the administration of criminal justice. On any such reading the plea in bar would require to be sustained in most cases in which the accused had been under the influence of drink, or had sustained a head injury, at the time of the crime, or even if he was naturally a person of unreliable memory."

Russell was followed in Hughes v HM Advocate,

^[184]

^[185]

In the Discussion Paper we proposed that the law should remain unchanged. Our consultees accepted this proposal. By itself, the accused's amnesia of events at the time of the offence does not prevent effective participation in proceedings against him, even if it may impose limitations on possible defences which the accused can raise (eg provocation or self-defence).

^[186]

Accordingly, we recommend that:

20. The fact that the accused experiences loss of memory of the events forming the basis of the charge against him does not by itself constitute unfitness in bar of trial.

(Draft bill, section 4 (adding new 1995 Act, section 53F(3)))

ECHR implications

4.24

There are several ways in which the plea in bar of trial could interact with the provisions of the European Convention on Human Rights. One is in terms of article 5(1) which provides for a right to freedom of the person but allows for deprivation of the liberty of persons of unsound mind in certain strictly defined circumstances. We considered this provision earlier in our discussion of the special defence.

^[187]

Of more relevance to the plea in bar are the provisions of article 6 of the Convention. Article 6(1) provides for the right to a fair hearing in respect of a criminal charge and article 6(3) sets out various minimum rights for anyone charged with a criminal offence.

^[188]

IH v Federal Republic of Germany

^[189]

Of more assistance is a decision of the European Court of Human Rights in Stanford v United Kingdom.

^[190]

^[191]

The principle in Stanford was further developed in the joint cases of T v United Kingdom and V v United Kingdom.

^[192]

The Court (with one judge dissenting) held that the applicants were unable to participate effectively in the criminal proceedings against them and were denied a fair hearing guaranteed under article 6(1). The Court stated that it was not sufficient for the purposes of article 6(1) that the applicants had been represented by skilled and experienced lawyers, and distinguished Stanford. The Court considered it was highly unlikely that the applicants would have felt sufficiently uninhibited to have consulted with their lawyers during the trial or that given their immaturity and their disturbed emotional states they would have been capable outside the courtroom of co-operating with their lawyers and giving them information for the purposes of their defence.

4.29

We would summarise the Convention case law as follows. The general principle is whether the accused can effectively participate in the trial. An accused may be unable to participate effectively in a trial if he is unable to consult with his lawyers during the trial, or co-operate with his lawyers and give them information for the purpose of conducting the defence. An accused is able to participate effectively in his trial if his capacity is limited but duly taken into account in the proceedings, or if he is able to instruct his defence counsel in order to be defended in an adequate manner and have all relevant facts and arguments submitted, or if the accused is unable to follow the proceedings but his lawyers are able to discuss with him any points that arise.

4.30

It is submitted that our proposals for reform of the plea in bar of trial are compatible with the provisions of article 6 of the Convention as interpreted by the European Court of Human Rights. We propose that the test for the plea in bar should express its general rationale in terms of the capacity of the accused to participate effectively in the proceedings against him, a principle which is derived directly from the Convention case law. Furthermore, in its judgments the European Court of Human Rights has referred to various tasks or skills by which effective participation is to be assessed. In our proposed test we have also included all of these skills as part of the non-exhaustive list of activities which indicate unfitness in bar of trial.

Part 5 Evidence and procedure

5.1

In this Part we deal with various issues of evidence and procedure in respect of the special defence based on mental disorder, the plea of diminished responsibility and unfitness as a plea in bar of trial.

A. The defence based on the accused's mental disorder

5.2

Burden of proof. First, we consider issues concerning the burden of proof in relation to the defence that an accused lacks criminal responsibility by reason of the effects of mental disorder. There are two situations to consider, namely where the defence is raised by the accused and secondly where it is raised by the Crown.

5.3

Defence raised by the accused. At common law where insanity as a defence is raised by the accused, he bears the onus of proving the defence on the balance of probabilities.

^[193]

A crucial factor in our proposal is a distinction between two conceptions of a burden of proof.

^[194]

legal

evidential

^[195]

In the Discussion Paper we advanced two main justifications for our proposal. The first was that there was no need to treat a mental disorder defence differently from any other defence; the second was the requirements of the ECHR.

5.6

Burden of proof in relation to defences. At common law the general rule is that the accused bears only an evidential burden in relation to defences and the Crown have a legal burden of disproving them. The only exceptions are insanity and diminished responsibility where the accused bears a legal burden of proof (which is satisfied by proof on the balance of probabilities). The older authorities justify the rule in respect of insanity by reference to a 'presumption' of sanity, which has the effect that the burden of proving insanity is on the party averring it.

^[196]

An important decision is Lambie v HM Advocate.

^[197]

^[198]

In Lambie no justification was offered for imposing a legal burden on the accused to prove the defence of insanity apart from the invocation of a presumption of sanity. But this argument is circular since the presumption is only another way of stating on whom the onus lies. A presumption of sanity is one of fact, which can be rebutted by evidence to the contrary. This evidence could as easily be the result of a requirement of an evidential burden of proof.

^[199]

We did not envisage that our proposal would make it too easy to establish the defence, or too difficult for the Crown to disprove it. Although Lambie states that the only function of a special defence is that of giving advance notice to the Crown,

^[200]

^[201]

^[202]

^[203]

The implications of the ECHR. The second basis for our proposal lay in the provisions of the European Convention on Human Rights. Article 6(2) states that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The European Court has recognised that presumptions are subject to this fundamental guarantee:

^[204]

"Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law…. Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."

In an application to the European Commission of Human Rights,

R v Lambert

Their Lordships in Lambert noted that imposing a legal burden on the accused was a much more drastic interference with the presumption of innocence than imposing an evidential burden.

^[210]

^[211]

^[212]

In the Discussion Paper we argued that a similar approach could be applied to the burden of proof in relation to the insanity defence. The general justifying aim of the defence is to give effect to a basic principle of criminal responsibility, namely that it is inappropriate to impose a criminal conviction on a person who suffered from the effects of a mental disorder at the time of the offence. The potential mischief which the defence may involve is that there could be cases where the defence is upheld without there being a proper foundation for it, and as a consequence the accused receives the special insanity acquittal rather than a conviction. The question then is what is a proportionate response in dealing with this mischief as far as concerns the burden of proving the defence.

5.14

We took the view that if the accused had to bear a legal burden of proof then he might be convicted even if there was doubt about his sanity at the time of the offence. This situation would arise where the accused had adduced some evidence indicating the existence of mental disorder but that evidence did not meet the standard of balance of probabilities. In this scenario it could not be said that the prosecution had shown that the accused was an appropriate person to be found guilty of a criminal offence. Where the mental condition of the accused is in issue, it accorded with principle that the Crown should provide evidence that the accused is such an appropriate person by proving that he lacks the defence.

5.15

This proposal produced a variety of responses. Some consultees expressed either full or qualified agreement. However, we have found very persuasive the views expressed by two consultees,

^[213]

There are several reasons for our decision to recommend retention of the rule that the legal burden in respect of the mental disorder defence should remain on the accused. In the first place we note that this is the position which is adopted in many other legal systems.

^[214]

More significantly, our original proposals were to some extent incomplete as regards the burden to be placed on the Crown. We suggested that the legal burden of disproving the defence should lie with the Crown. But the issue arises of how the Crown can obtain the information which it would require in order to prove beyond a reasonable doubt what the accused's mental condition was at the time of the offence. The Crown might be able to point to weakness in the accused's own evidence of his mental disorder, but in order to discharge its own burden of proof the Crown would normally have to lead evidence showing that the accused was, in a sense, mentally 'normal.' It should be further borne in mind that the relevant issue is not the accused's present mental state but his state at the earlier time of the offence. How is the Crown to obtain this evidence? In some of the legal systems where the burden is on the prosecution, the accused must agree to undergo medical examination or otherwise be held to have waived his rights to produce evidence in support of his defence. Under current Scots law the accused cannot be called as a Crown witness nor can he be compelled to undergo medical examination. It is no doubt possible to alter this situation. For example, where the accused gives notice of the defence based on mental disorder, the Crown could be placed in the position of compelling him to attend for psychiatric examination. This was not a matter we explored in the Discussion Paper. Moreover we envisage that serious difficulties might arise were the accused to refuse to co-operate during any psychiatric examination (eg by refusing to answer any questions). A further response would be to allow the court or jury to draw adverse inferences from refusal of an accused person to participate in an examination. Again this is not an option that we put to consultees and in any case it is not one we find attractive.

5.18

A further factor concerns the requirements of the ECHR. In the Discussion Paper considerable emphasis was given to the argument that a legal burden of proving insanity on the accused may fall foul of the requirements of the ECHR. This view was premised mainly on the case of R v Lambert.

^[215]

^[216]

Lambert

^[217]

Accordingly the question remains open whether a legal burden of proof on the accused to establish the defence is consistent with Convention rights. Mr Chalmers has pointed to a useful source for considering this question, namely the decision of the Supreme Court of Canada in R v Chaulk.

^[218]

^[219]

The Supreme Court held that a legal burden on the accused of proving insanity did not infringe the Canadian Charter of Rights and Freedoms. The majority of justices held that the reverse burden did breach the Code's protection of the presumption of innocence and the right to a fair trial,

^[220]

^[221]

"Section 16(4) represents an accommodation of three important societal interests: avoiding a virtually impossible burden on the Crown; convicting the guilty; and acquitting those who truly lack the capacity for criminal intent. The result of this compromise is that some guilty people will be acquitted and will be dealt with via the [mental health disposal system], and some insane (and therefore not guilty) people will be convicted and will be stigmatized and punished as criminals. Of course, this would still be the case if the burden on the accused were lowered so as to require him or her to raise a reasonable doubt as to insanity;…This result is the inevitable consequence of the uncertainty of our scientific knowledge and of our commitment (as expressed in s. 11(d)) not to convict those who were insane at the time of the offence. The alternatives to this compromise raise their own Charter problems and give no guarantee as to whether they will achieve the objective. As I have mentioned above, the Charter does not require Parliament to 'roll the dice' in its effort to achieve 'pressing and substantial' objectives in order to adopt the absolutely least intrusive legislative provision.

While the effect of s. 16(4) on the presumption of innocence is clearly detrimental, given the importance of the objective that the Crown not be encumbered with an unworkable burden and given that I have concluded above that s. 16(4) limits s. 11(d) as little as is reasonably possible, it is my view that there is proportionality between the effects of the measure and the objective."

Although this decision is based on the provisions of the Canadian Charter, it nonetheless suggests how the issue of the burden of proof of the defence might be assessed in terms of the ECHR. We are of the view that the Convention does not require that any burden on the accused should be an evidential one only. Placing a legal burden of proving the defence can be a proportionate qualification to the rights of an accused person under article 6 provided that there are clear reasons for doing so.

^[222]

In the first place there is the problem of the task facing the Crown in disproving a state of mental disorder beyond reasonable doubt. As pointed out earlier, this burden could rarely be discharged merely by rebutting evidence led by the accused.

^[223]

Secondly, there is a distinction to be drawn between defences based solely on the accused's mental state (such as the common law defences of insanity and diminished responsibility) and other defences. This distinction is sometimes made in terms of a presumption of sanity but, as already noted, such a presumption begs the question of burden of proof. Instead, the point of difference lies in the requirement of proving some external factor and not simply a state of mind as such. In most defences the accused's state of mind is proved by evidence of his actions and reactions to external events, these actions and reactions being closely related to the actus reus. For example, alibi is proved (or disproved) by evidence as to the accused's physical whereabouts; self-defence and provocation by the nature of the events leading up to the assault on the victim; automatism by the external factor which brought about the loss of reasoning; and so on. A legal burden of proof on the Crown in relation to these defences does not involve a disproportionate task. Once the Crown has notice of a defence it can seek out evidence of the appropriate external facts to disprove it. The situation is markedly different in respect of the defence based on the accused's mental disorder. In many cases there is nothing inherent in the external behaviour of an insane person which indicates the presence of mental disorder. Evidence that Daniel M'Naghten fired a gun at Sir Robert Peel's private secretary does not prove that M'Naghten had insane reasons for doing so. More crucially for the issue of allocating the burden of proof, such evidence if led by the Crown does not establish that M'Naghten was not insane.

5.24

Thirdly, it is generally accepted that at the very least the accused would bear an evidential burden to establish the mental disorder defence. In Scots law there is virtually no authority on the nature of such a burden of proof. If the distinction between evidential and legal burdens is to be of use in this context, there must be some guidance on the level of proof required for discharging an evidential burden. Clearly something more is required than lodging notice of the defence, but what more? The special defence requires proof of very specific aspects of mental disorder, and would normally not be put in issue without expert psychiatric evidence. It may be that in this context there is little difference in practice between a legal burden on the standard of balance of probabilities and an evidential burden of proof. In R v Lambert Lord Hope of Craighead stated that:

^[224]

"[A]n evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, could be taken by a reasonable jury to support his defence. … The practical effect of … imposing an evidential burden only on the accused and not a persuasive burden … is likely in almost every case that can be imagined to be minimal."

But if the evidential burden on the accused to establish the defence is a high one, there might be very little practical difference between such a burden and a legal burden at the standard of balance of probabilities.

A final factor concerns the risk of false claims of mental disorder. A possible argument in support of placing the legal burden on the Crown is that, because of the disposal consequences of the defence, accused persons are unlikely to fake conditions which constitute mental disorder. This is especially so of legal systems (including Scotland prior to the 1995 Act) where the disposal is the mandatory and indefinite detention of the accused in a mental hospital. However under the 1995 Act (and article 5(1)(e) of the ECHR) a mental health disposal can be made following an insanity verdict only where it is necessary in terms of the accused's current state of mental health. Where a person who has been acquitted on a mental disorder defence is mentally healthy at the disposal stage, the court cannot impose any penal measure at all nor can it make any mental health disposal. Accordingly there might be a risk that if the Crown faced a very high burden in disproving the defence, some accused persons would try to fake mental disorder at the time of the offence in order to avoid a criminal sentence.

5.26

To sum up our views on burden of proof of the special defence. We accept, in accordance with the principle enunciated in Lambie v HM Advocate,

^[225]

We have earlier recommended that the common law in relation to insanity as a defence should be replaced by a statutory test for the special defence based on the accused's mental disorder at the time of the offence. Although we favour a rule on the burden of proof of the statutory defence which is not substantively different from that at common law, to avoid any doubt it is advisable to state the rule on burden of proof in statute.

5.28

Accordingly we recommend that:

21. The common law rule on the burden of proof of the insanity defence should be replaced by a statutory rule that where the accused raises the defence that he lacked criminal responsibility because of mental disorder, he has to prove the defence on the balance of probabilities.

(Draft bill, sections 1(4); 5)

5.29

Insanity raised by the prosecution. We next consider the situation where the defence is raised by the Crown. In the Discussion Paper we noted that although insanity is normally characterised as a defence, it appears that it may be raised by the Crown. In HM Advocate v Harrison,

^[226]

^[227]

The position in English law is that the Crown can raise the issue of the accused's insanity, at least in certain circumstances. Although the extent of the Crown's right to prove insanity is not clear, it is settled that the Crown can lead evidence that the accused was insane where the accused has put his mental state as an issue in the case by having raised the plea of diminished responsibility (and possibly also automatism).

^[228]

In the Discussion Paper we did not make a definite proposal on this issue but asked whether the Crown should have the right to raise the defence and, if so, in what circumstances. We pointed out that as we were dealing with the special defence and not the plea in bar of trial, the focus was on the accused's mental state at the time of the offence and not at the time of trial. This point is important, for the issue is not concerned with whether the accused now needs a 'mental health' disposal which focuses on the accused's current state. If there is a problem with the accused's current mental health, the court's powers to make an appropriate order can be used where the accused is convicted, as much as where he is acquitted by reason of the special defence.

^[229]

We also noted that the Crown has a duty to present all evidence which has a bearing on the accused's state of mind at the time of the offence. The Crown might find itself in a difficult situation if it could not present evidence which pointed to the accused's insanity. If the Crown could not seek an insanity verdict, the outcome would be that the accused would be convicted for an offence despite his lack of criminal responsibility at the time of the offence. We suggested that in some (probably most) cases this problem would not arise, as the Crown would decide not to prosecute. However there might be circumstances where the Crown needed to proceed with a trial but also show that the accused was insane at the time of the offence. One example would be where there was uncertainty as to who committed an offence. It would be in the public interest if the Crown could establish that the accused was the perpetrator and at the same time seek his acquittal by reason of the insanity defence.

5.33

On the other hand, the effect of the Crown seeking the special verdict based on mental disorder would be that the accused, who is ex hypothesi competent to stand trial, would be compelled into a defence which he does not wish. An accused, especially where the charges are minor, may decide that he would rather run the risk of being convicted than use the special defence, which he might regard as stigmatising. There is no basis for the Crown to force any other defence on an accused who does not seek to avail himself of it, and the question remains why the Crown should have such a right in the case of this defence.

5.34

Some consultees argued that the Crown should have a right to assert and prove that the accused was mentally disordered at the time of the offence. The main reason given for this view was the Crown's duty to present all relevant evidence. However we are not persuaded by this argument. It is no doubt the case that the Crown should be able to adduce evidence of the accused's mental state at the time of the offence when that is relevant to an issue before the court, for example where the accused has raised a plea of diminished responsibility. But it does not follow that the Crown should be allowed to go further than presenting relevant evidence by insisting upon a defence which the accused has not himself raised.

^[230]

Consultees who took the view that the Crown should have no right to raise the special defence relied on the principle that where there are no considerations of public safety, the decision whether to raise a defence to a criminal charge is a matter for the accused. Significantly the Crown Office itself adopted this position. The Crown Office submitted that it would not be in the public interest for the Crown to pursue a defence of insanity where the issue was not raised by the accused. It further pointed out that there would be practical difficulties in the Crown obtaining the necessary evidence to prove insanity where the accused himself was not wishing to raise the defence.

^[231]

We agree. No issues of public safety are involved in leaving the decision whether or not to raise the mental disorder defence with the accused. Furthermore it is wrong as a matter of principle for the Crown to force a defence on an accused person where that person does not wish to avail himself of it.

5.37

Accordingly we recommend that:

22. The defence that an accused person lacked criminal responsibility because of mental disorder at the time of the offence can be raised only by the accused.

(Draft bill, section 1(4))

5.38

Procedural nature of the defence. The common law defence of insanity is a special defence.

^[232]

^[233]

Accordingly we recommend that:

23. The defence that the accused lacked criminal responsibility because of mental disorder should be a special defence.

(Draft bill, section 1(3))

5.40

Verdict following the defence. The existing defence of insanity if successfully raised leads to a verdict of acquittal. However the verdict is not a general acquittal but must specify that it is based on the accused's insanity at the time of the offence. This form of verdict is important because it brings into play the special disposal consequences under Part VI of the 1995 Act.

^[234]

We have identified two points concerning section 54(6) which we consider call for reform. First, we noted in the Discussion Paper a procedural oddity where insanity is raised as a defence in proceedings on indictment. Where there is evidence relating to the special defence, section 54(6) requires there to be a verdict on the matter by a jury. What the section does not allow for is a procedure whereby the Crown can accept a tender of a plea of insanity which enables the court to proceed to record that plea or for the court to return the verdict on its own account. The result is that unnecessary steps in court procedure can occur. We cited as an illustration the case of HM Advocate v McAskill.

^[235]

^[236]

In the Discussion Paper we argued that this situation was unsatisfactory. The role of the jury in this sort of case is purely formal.

^[237]

Accordingly we recommend that:

24. It should be possible for the court in solemn proceedings to return a verdict of acquittal by reason of the defence that the accused lacked criminal responsibility because of mental disorder, where there has been agreement to that effect by the Crown and the accused.

(Draft bill, section 2 (adding new 1995 Act, section 53E(1)))

5.44

Secondly, section 54(8) defines the term 'court' for purposes of the section as meaning the High Court and sheriff court, but not the district court. This definition seems to be aimed at the procedure for insanity as a plea in bar of trial,

^[238]

Accordingly we recommend that:

25. The procedure in summary cases for returning a verdict of acquittal by reason of the defence that the accused lacked criminal responsibility because of mental disorder should be the same in the sheriff court and the district court.

(Draft bill, section 2 (adding new 1995 Act, section 53E(1), (2)); schedule, paragraph 4(d))

B. Diminished responsibility

5.46

Burden of proof. There is very little authority on the questions of burden and standard of proof in respect of the plea of diminished responsibility. In HM Advocate v Braithwaite, Lord Justice Clerk Cooper in a direction to the jury stated that:

^[239]

"If the Crown have established that the accused did this thing, it is not for the Crown to go further and show that he was fully responsible for what he did; it is for the accused to make good his defence of partial irresponsibility, and that means that he must show you that the balance of probability on the evidence is in favour of the view that his accountability and responsibility were below normal."

A similar position exists in English law.^[240]

In the Discussion Paper we proposed that the accused should bear only an evidential burden in respect of the plea and that the Crown should have a legal burden of disproving diminished responsibility beyond reasonable doubt. We accepted that, especially since the decision in Galbraith v HM Advocate,

^[241]

^[242]

Accordingly we recommend that:

26. The common law rule on the burden of proof of the plea of diminished responsibility should be replaced by a statutory rule that the accused bears the burden of proving the plea on the balance of probabilities.

(Draft bill, sections 3(4); 5)

5.49

In the Discussion Paper we considered whether the Crown should be allowed to raise the issue of diminished responsibility where no such plea had been made by the accused. We noted that in English law the Crown has the right to lead evidence showing that the accused was of diminished responsibility where the accused has himself raised the defence of insanity.

^[243]

Notice of the plea. Under the existing law there is no requirement that the accused gives notice that he intends to raise the plea of diminished responsibility. In the Discussion Paper we recommended that the plea should be subject to the same rules for giving notice as apply to special, and various other, defences.

^[244]

We noted that the Thomson Committee on Criminal Procedure had made a recommendation that all defences, including diminished responsibility, should be subject to a notice procedure.

^[245]

^[246]

It may also be noted that the existing rules on advance notice allow the court, on cause shown, to admit evidence to establish a special defence in the absence of notice. This rule would apply to a situation where the possibility that an accused falls within the scope of diminished responsibility only becomes apparent during the course of a trial itself. Our proposal for treating the plea as if it were a special defence for the purpose of giving notice was accepted by our consultees, one of whom pointed out that in practice defence counsel already provide such advance notice if they know prior to the trial that the plea is to be raised.

5.53

Accordingly we recommend that:

27. The plea of diminished responsibility should be treated as if it were a special defence for the purposes of the provisions of section 78 of the Criminal Procedure (Scotland) Act 1995. However no disclosure of the plea should be made to the jury under section 89 of the 1995 Act.

(Draft bill, section 6; schedule, paragraph 11)

C. Unfitness as a plea in bar of trial

5.54

Right to raise issue of unfitness in bar of trial. In the Discussion Paper we noted that authority is sparse on the issue of the burden of proof in respect of insanity as a plea in bar. However it seems to be accepted that the issue can be raised by the accused, by the Crown and by the court itself.

^[247]

In the Discussion Paper we proposed that where the accused raises the issue of unfitness in bar of trial the effect would be that the Crown should bear the legal burden of establishing fitness beyond reasonable doubt. To some extent our proposal was based upon existing English law,

^[248]

On the whole consultees did not agree with this proposal. Many of the problems connected with our original proposals in respect of the burden of proving the special defence would also arise in relation to the plea in bar. In addition some consultees argued that the analogy between the defence and the plea was not exact. As the issue of unfitness concerned the appropriateness of using the criminal process against an accused person, the right to raise the plea should not be confined to any one party. In some cases the accused's failure to raise the issue of his unfitness may itself be the result of the very condition which leads to his lack of capacity to participate effectively in the proceedings against him. The accused may not have legal representation who would be alerted to possible problems as to the accused's condition. In that situation only the Crown, or the court, would be in a position to raise the issue. We have come to the conclusion that the law should continue to be that the issue of unfitness in bar of trial may be raised by the accused or by the Crown or by the court of its own accord. The question then remains of who bears the ultimate burden of non-persuasion once the issue of the accused's fitness has been raised. We take the view that the normal principle should apply that a party who raises an issue has the burden of adducing sufficient evidence to establish that issue to the satisfaction of the court. As noted, the Crown is under a duty to present any evidence it may have concerning the accused's mental health. The practical effect of the rule on burden of proof is that, once the issue has been raised by a party or by the court, the question of the accused's fitness for trial is to be decided by the court on the basis of all the evidence before it.

5.57

Accordingly we recommend that:

28. There should be no change to the existing law whereby the issue of the accused being unfit for trial may be raised by the accused, the Crown or by the court.

5.58

Standard of proof. Section 54 of the 1995 Act refers to the situation where the court is 'satisfied' that an accused person is insane in bar of trial but no guidance is given as to the level of proof required to meet this criterion. In Jessop v Robertson,

^[249]

^[250]

^[251]

Accordingly we recommend that:

29. Where the issue of the accused being unfit for trial has been raised, the court should find the accused unfit if so satisfied on the balance of probabilities.

(Draft bill, section 4 (adding new 1995 Act, section 53F(1)))

5.60

Evidential requirements in relation to unfitness as a plea in bar of trial. Section 54(1) of the 1995 Act requires the court to make various orders where it is satisfied, on the written or oral evidence of two medical practitioners, that the accused is insane in bar of trial. This provision is to be read along with section 61(1)(a) of the Act to the effect that at least one of the medical practitioners must have been approved under the Mental Health (Care and Treatment) (Scotland) Act 2003 as having special experience in the diagnosis or treatment of mental disorder. One effect of these provisions is that evidence from other experts, such as clinical psychologists, would not be a sufficient basis for establishing insanity in bar of trial. In McLachlan v Brown,

^[252]

In the Discussion Paper we stated that we found the requirements of section 54(1), as read with section 61(1)(a), puzzling. The 1995 Act does not deal with the mode in which insanity as a defence can be proved, yet this is an area in which psychiatric expertise is almost inevitably called for. By contrast, even under the existing law the plea in bar deals with conditions other than mental illness. Furthermore, the other contexts in which the requirement of an 'approved' medical practitioner applies, all concern the making of various types of mental health disposals,

^[253]

^[254]

In the Discussion Paper we proposed the abolition of the requirement that a finding of insanity in bar of trial must be based on the evidence of two medical practitioners, one of whom must be an 'approved' medical practitioner. We could not identify any clear policy reason for the introduction of this requirement into the 1995 Act.

^[255]

Accordingly we recommend that:

30. There should be no requirement that proof of unfitness as a plea in bar of trial must include evidence from two medical practitioners, one of whom must be an 'approved medical practitioner' within the meaning of section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

(Draft bill, schedule, paragraphs 4(a)(i); 8(a), (b))

5.64

Notice of the plea in summary proceedings. Section 54(7) of the 1995 Act provides that an accused cannot found on a plea of insanity in bar of trial unless prior to the swearing in of the first prosecution witness he gives notice to the prosecutor of the plea and of the witnesses he proposes to support it. We doubt whether this provision is necessary or desirable. It may raise problems of compatibility with the ECHR. The effect of the provision is that if notice is not given, the plea cannot be raised by the accused (though it can still be raised by the Crown or by the court) once the trial has started. No such restriction exists in relation to indictment cases. In solemn proceedings, an accused must lodge prior notice of his intention to submit a plea in bar of trial, but in the absence of notice the court may still allow the matter to be considered on cause shown.

^[256]

^[257]

Accordingly we recommend that:

31. Section 54(7) of the Criminal Procedure (Scotland) Act 1995 should be repealed.

(Draft bill, schedule, paragraph 4(d))

D. Transitional provisions

5.66

The special defence based on mental disorder; diminished responsibility. A fundamental principle of the criminal law, and also a requirement of the ECHR,

^[258]

^[259]

^[260]

Solemn proceedings normally commence on the date of whichever happens first: the grant of a petition warrant to arrest and commit the accused, the intimation of a petition, or the service of an indictment.

^[261]

^[262]

Accordingly we recommend that:

32. The provisions relating to the special defence and to diminished responsibility should apply to any proceedings commenced after those provisions have been brought into force.

(Draft bill, section 7(1)-(3))

5.69

Unfitness in bar of trial. As this plea in bar of trial relates to the fitness of the accused in respect of criminal proceedings, the obvious starting-point for the application of the statutory based plea is when a court has to determine the accused's fitness for trial. Accordingly where a hearing had started before the relevant provisions have been brought into force, the court will have to apply the statutory test if no determination had been made by that date. In addition a finding that an accused is unfit for trial triggers further court procedure.

^[263]

Accordingly we recommend that:

33. The provisions relating to the accused's unfitness for trial should apply in any diet where the issue of unfitness has not been determined at the time those provisions have been brought into force.

(Draft bill, section 7(4), (5))

Part 6 List of recommendations

The common law test for insanity as a defence should be abolished.

(Paragraph 2.14)

The defence of insanity should be retained as part of Scots criminal law.

(Paragraph 2.18)

The defence dealing with the criminal responsibility of persons with mental disorder should no longer be known as the 'insanity' defence.

(Paragraph 2.24)

The test for the defence should require that at the time of the alleged offence the accused had a mental disorder. The term 'mental disorder' should be defined as meaning (a) mental illness; (b) personality disorder; or (c) learning disability.

(Paragraph 2.30)

The defence should be defined in terms of a specific effect on the accused's state of mind which has been brought about by his mental disorder.

(Paragraph 2.37)

The defence should be defined in terms of the accused's inability at the time of the offence to appreciate either the nature or the wrongfulness of his conduct.

(Paragraph 2.51)

The definition of the defence should not contain any reference to volitional incapacities or disabilities of the accused.

(Paragraph 2.56)

The condition of psychopathic personality disorder should be excluded from the scope of the defence.

(Paragraph 2.63)

The common law test for the plea of diminished responsibility should be abolished.

(Paragraph 3.9)

The plea of diminished responsibility should be retained as a special instance of a plea in mitigation in cases of murder. Where successful its effect should be that the accused is liable to be convicted of culpable homicide rather than of murder.

(Paragraph 3.11)

The plea should continue to be known by the name 'diminished responsibility.'

(Paragraph 3.13)

The test for the plea of diminished responsibility should be that by reason of abnormality of mind the accused's ability to determine or control his conduct was substantially impaired.

(Paragraph 3.17)

The plea of diminished responsibility should not be excluded solely by the fact that the accused's condition at the relevant time fell within the scope of the defence that the accused lacked criminal responsibility because of mental disorder.

(Paragraph 3.23)

A plea of diminished responsibility should not be excluded solely by virtue of the fact that at the relevant time the accused had any form of personality disorder.

(Paragraph 3.34)

A state of acute intoxication at the time of an unlawful killing should not by itself constitute diminished responsibility. However, a state of acute intoxication by itself should not prevent diminished responsibility from being established if the intoxication co-existed with, or was the consequence of, some underlying condition which meets the general criteria for the plea.

(Paragraph 3.42)

The plea of diminished responsibility should not be extended beyond cases of murder.

(Paragraph 3.50)

The common law test for the plea of insanity in bar of trial should be abolished and should be formulated in statute.

(Paragraph 4.7)

'Insanity' as a plea in bar of trial should be re-named 'unfitness for trial.'

(Paragraph 4.10)

The test for the plea of unfitness in bar of trial should be that as a consequence of the accused's mental or physical condition at the time of the trial he lacks the capacity to participate effectively in the proceedings against him. The test should include a non-exhaustive list of activities which would indicate such lack of capacity.

(Paragraph 4.19)

The fact that the accused experiences loss of memory of the events forming the basis of the charge against him does not by itself constitute unfitness in bar of trial.

(Paragraph 4.23)

The common law rule on the burden of proof of the insanity defence should be replaced by a statutory rule that where the accused raises the defence that he lacked criminal responsibility because of mental disorder, he has to prove the defence on the balance of probabilities.

(Paragraph 5.28)

The defence that an accused person lacked criminal responsibility because of mental disorder at the time of the offence can be raised only by the accused.

(Paragraph 5.37)

The defence that the accused lacked criminal responsibility because of mental disorder should be a special defence.

(Paragraph 5.39)

It should be possible for the court in solemn proceedings to return a verdict of acquittal by reason of the defence that the accused lacked criminal responsibility because of mental disorder, where there has been agreement to that effect by the Crown and the accused.

(Paragraph 5.43)

The procedure in summary cases for returning a verdict of acquittal by reason of the defence that the accused lacked criminal responsibility because of mental disorder should be the same in the sheriff court and the district court.

(Paragraph 5.45)

The common law rule on the burden of proof of the plea of diminished responsibility should be replaced by a statutory rule that the accused bears the burden of proving the plea on the balance of probabilities.

(Paragraph 5.48)

The plea of diminished responsibility should be treated as if it were a special defence for the purposes of the provisions of section 78 of the Criminal Procedure (Scotland) Act 1995. However no disclosure of the plea should be made to the jury under section 89 of the 1995 Act.

(Paragraph 5.53)

There should be no change to the existing law whereby the issue of the accused being unfit for trial may be raised by the accused, the Crown or by the court.

(Paragraph 5.57)

Where the issue of the accused being unfit for trial has been raised, the court should find the accused unfit if so satisfied on the balance of probabilities.

(Paragraph 5.59)

There should be no requirement that proof of unfitness as a plea in bar of trial must include evidence from two medical practitioners, one of whom must be an 'approved medical practitioner' within the meaning of section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

(Paragraph 5.63)

Section 54(7) of the Criminal Procedure (Scotland) Act 1995 should be repealed.

(Paragraph 5.65)

The provisions relating to the special defence and to diminished responsibility should apply to any proceedings commenced after those provisions have been brought into force.

(Paragraph 5.68)

The provisions relating to the accused's unfitness for trial should apply in any diet where the issue of unfitness has not been determined at the time those provisions have been brought into force.

(Paragraph 5.70)

Note 1   Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (S.I. 1999/1820).    [Back]

Note 2   Under section 3(1)(e) of the Law Commissions Act 1965.    [Back]

Note 3   New Directions: Report on the Review of the Mental Health (Scotland) Act 1984 (SE/2001/56).    [Back]

Note 4   Millan Report, ch 29, esp paras 43-61.    [Back]

Note 5   The list of recommendations is set out in Part 6. The draft bill is contained in Appendix A.    [Back]

Note 6   The main amending Acts are the Crime and Punishment (Scotland) Act 1997; Crime and Disorder Act 1998; Mental Health (Public Safety and Appeals) (Scotland) Act 1999; Adults with Incapacity (Scotland) Act 2000; Convention Rights (Compliance) (Scotland) Act 2001; Criminal Procedure (Amendment) (Scotland) Act 2002; Sexual Offences (Procedure and Evidence) (Scotland) Act 2002; Criminal Justice (Scotland) Act 2003; Mental Health (Care and Treatment) (Scotland) Act 2003.    [Back]

Note 7   The seminar was held at the University of Edinburgh on 25 and 26 April 2002. The speakers were Professor R A McCall Smith, University of Edinburgh; Professor R D Mackay, De Montfort University; Professor Richard J Bonnie, School of Law and Director, Institute of Law Psychiatry and Public Policy at the University of Virginia; Professor Warren Brookbanks, University of Auckland; and Professor Finbarr McAuley, University College Dublin and Commissioner, Law Reform Commission of Ireland.    [Back]

Note 8   Scottish Law Commission, Discussion Paper on Insanity and Diminished Responsibility (Discussion Paper No 122, 2003).    [Back]

Note 9   A list of consultees who submitted a written response to the Discussion Paper is set out in Appendix B.    [Back]

Note 10   The details of the mental health experts who assisted in the project are provided in Appendix C.    [Back]

Note 11   See 1995 Act, Part VI, especially s 57. The provisions of s 57 first appeared in the Criminal Justice (Scotland) Act 1995, which was consolidated into the 1995 Act. The 'new' law on disposals in insanity cases came into effect on 1 April 1996.    [Back]

Note 12   The disposal stage also arises where the examination of facts shows that the accused committed the act in question but was within the scope of the insanity defence.    [Back]

Note 13   1995 Act, s 205(1).    [Back]

Note 14   See Discussion Paper, paras 1.17-1.21 and Appendix C for further details.    [Back]

Note 15   These data refer to the former names for the disposal, which were changed by the Mental Health (Care and Treatment) (Scotland) Act 2003.     [Back]

Note 16   See Discussion Paper, Appendix C, Table 1. The figures in the text above have been revised to take account of data published after the Discussion Paper.     [Back]

Note 17   Ibid.    [Back]

Note 18   M Burman and C Connelly, Mentally Disordered Offenders and Criminal Proceedings. The Operation of Part VI of the Criminal Procedure (Scotland) Act 1995 (The Scottish Office Central Research Unit, 1999). Data derived from this study are contained in the Discussion Paper, Appendix C.    [Back]

Note 19   Three of the cases had been heard in the period between April 1996 (when the 1995 Act provisions came into effect) and the starting date of the project in September 1996.    [Back]

Note 20   It may also be noted that in one of the cases in which the facts were not established, a disposal was made under the Mental Health (Scotland) Act 1984.    [Back]

Note 21   In both cases the accused was convicted. In one case a hospital order was made; in the other the accused was sentenced to a period of community service.    [Back]

Note 22   See Scottish Executive Statistical Bulletin CrJ/2003/9, Homicide in Scotland 2002, Table 8. The number of persons accused of homicide for the years 1996-2002 were 171, 126, 140, 173, 126, 151, and 186. The number of these cases classified as murder were 100, 66, 86, 117, 65, 101 and 128. See further Discussion Paper, Appendix C.    [Back]

Note 23   See paras 5.50-5.53.    [Back]

Note 24   2002 JC 1.    [Back]

Note 25   An Act of the Scottish Parliament is not law in so far as any provision is outside the legislative competence of the Parliament (Scotland Act 1998, ss 29 and 126(1)).    [Back]

Note 26   See Scotland Act 1998, s 29(2).    [Back]

Note 27   Scotland Act 1998, s 29(2)(d); Human Rights Act 1998, s 1.    [Back]

Note 28   See paras 2.64-2.68; 3.51; 4.24-4.30; 5.10-5.28; 5.64; 5.66.    [Back]

Note 29   Hume I, 37.    [Back]

Note 30   1960 JC 61 at 70-71.    [Back]

Note 31   1977 JC 38 at 45.    [Back]

Note 32   1992 SCCR 658.    [Back]

Note 33   1991 JC 210 where the Court laid down three requirements for a defence of automatism (at 218): "that the external factor must not be self-induced, that it must be one which the accused was not bound to foresee, and that it must have resulted in a total alienation of reason amounting to a complete absence of self-control."    [Back]

Note 34   1992 SCCR 658 at 668. The Court explicitly referred to Hume, and the decisions in the Kidd and Brennan cases.    [Back]

Note 35   (1843) 10 Cl & F 200 at 210 per Lord Chief Justice Tindal.    [Back]

Note 36   See HM Advocate v Kidd 1960 JC 61 at 71: "At one time, following English law, it was held in Scotland that if an accused did not know the nature and quality of the act committed, or if he did know it but did not know he was doing wrong, it was held that he was insane. That was the test, but that test has not been followed in Scotland in the most recent cases. Knowledge of the nature and quality of the act, and knowledge that he is doing wrong, may no doubt be an element, indeed are an element, in deciding whether a man is sane or insane, but they do not, in my view, afford a complete or perfect test of sanity. A man may know very well what he is doing, and may know that it is wrong, and he may none the less be insane. It may be that some lunatics do an act just because they know it is wrong." However the language used by the Court in Cardle v Mulrainey is very similar to that of the Rules. For general discussion of the extent to which the M'Naghten Rules have been an influence on the Scots law of insanity, see Gordon, pp 434-448.    [Back]

Note 37   For example, the test proposed by the American Law Institute: "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 law." (The American Law Institute, Model Penal Code, Official Draft (1985), s 4.01(1).)    [Back]

Note 38   The leading cases are R v Codère (1916) 12 Cr App Rep 21 and R v Windle [1952] 2 QB 826.    [Back]

Note 39   Consider in this regard Lord Cooper's well-known remarks in evidence to the Royal Commission on Capital Punishment: "[H]owever much you charge a jury as to the McNaghten Rules or any other test, the question they would put to themselves when they retired is – 'Is the man mad or is he not?' " (Report of the Royal Commission on Capital Punishment: Minutes of Evidence, 1949-1952, Evidence of Lord Cooper, Q 5479.) See also Lord Strachan's charge to the jury in HM Advocate v Kidd 1960 JC 61 at 70: "I do not think you should resolve this matter by inquiring into all the technical terms and ideas that the medical witnesses have put before you. Treat it broadly, and treat the question as being whether the accused was of sound or unsound mind."    [Back]

Note 40   We consider at paras 2.19-2.24 the desirability of continuing to use the term 'insanity' itself.    [Back]

Note 41   1977 JC 38 at 42-43.    [Back]

Note 42   Millan Report, para 29.43.    [Back]

Note 43   The Butler Committee when recommending reform of the insanity defence identified as two of its guiding principles that the defence must "avoid the use of words and expressions which may confuse the jury" and must also "be capable of being the subject of a clear direction by the judge." (Butler Report, para 18.17.)    [Back]

Note 44   The older common law referred to persons as 'furious' and 'idiots'. An important series of statutes in the 19th and early 20th centuries referred to 'lunatics' and 'mental defectives' (see eg the Lunacy (Scotland) Acts 1857 and 1862 and the Mental Deficiency and Lunacy (Scotland) Act 1913). A radical change to the civil law on mental health was brought about by the Mental Health (Scotland) Act 1960, which used contemporary language to describe forms of mental disorder. The 1960 Act along with subsequent legislation was consolidated in the Mental Health (Scotland) Act 1984. This Act was the subject of the review by the Millan Committee whose recommendations led in turn to the 2003 Act.    [Back]

Note 45   See paras 1.16-1.21.    [Back]

Note 46   Other important statutory statements of the civil law were the Mental Health (Scotland) Acts of 1960 and 1984.     [Back]

Note 47   J Goldstein & J Katz, "Abolish the 'Insanity Defense' – Why Not?" (1963) 72 Yale LJ 853; Norval Morris, Madness and the Criminal Law (1982), pp 53-76.    [Back]

Note 48   Mackay refers to this approach as 'partial' abolition to distinguish it from 'total' abolition (under which questions of mental disorder are irrelevant even in respect of proof of mens rea). The US courts have tended to treat total abolition of the insanity defence as unconstitutional and there has been little support for this approach (Mackay, pp 124-125).    [Back]

Note 49   These measures were largely prompted by the case of US v Hinckley 672 F 2d 115 (DC Cir 1982). Hinckley shot President Ronald Reagan in an attempted assassination. He was subsequently found not guilty by reason of insanity. For discussion of the effect of this decision on reform of the insanity defence in the USA, see Mackay, pp 111-131. Mackay considers the abolitionist response at pp 123-130.    [Back]

Note 50   Paul S Appelbaum, "The Insanity Defense: Moral Blameworthiness and Criminal Punishment" in Appelbaum, Almost a Revolution: Mental Health Law and the Limits of Change (1994) 163, esp pp 181-183.    [Back]

Note 51   Royal Commission on Capital Punishment (Cmnd 8932, 1953), para 278.    [Back]

Note 52   The Law Society of Scotland in stating its agreement with our view cited a passage from the trial of James Hadfield in 1800: "It is agreed by all jurists, and is established by the law of this and every other country that it is the reason of man which makes him accountable for his actions; and that the deprivation of reason acquits him of crime." (Jas Hadfield (1800) 27 St Trials 1281 at 1309-1310.)     [Back]

Note 53   As in the title of a book by the American doctor, Isaac Ray: A Treatise on the Medical Jurisprudence of Insanity (Boston, 1838), a book which had considerable influence on the development of the insanity defence in the USA.    [Back]

Note 54   The Butler Committee argued that "the continued use of the words 'insanity' and 'insane' in the criminal law long after their disappearance from psychiatry and mental health law has been a substantial source of difficulty, and we attach importance to the discontinuance of the use of these words in the criminal law." (Butler Report, para 18.18.)    [Back]

Note 55   Mackay, pp 137-138; Law Commission: Criminal Law: Codification of the Criminal Law. Report to the Law Commission (Law Com No 143, 1985), para 12.14: "…the offensive label of 'insanity' will no longer be used."    [Back]

Note 56   We consider the question of how mental disorder should be defined as a constituent element of the defence at paras 2.25-2.30.    [Back]

Note 57   It should be noted that the expression 'diminished responsibility' has itself been criticised. See paras 3.12-3.13.    [Back]

Note 58   An alternative term for 'non-responsibility' would be 'irresponsibility'. In HM Advocate v Cunningham 1963 JC 80, the Crown in argument (at 81-82) used the expression the 'special defence of irresponsibility.' We do not favour using this term, which might be regarded as stigmatising. Furthermore in ordinary language 'irresponsibility' suggests a form of recklessness, for which a person can be held responsible. See further paras 2.57-2.63 where we consider the criminal responsibility of persons with psychopathic personality disorder.    [Back]

Note 59   We accept that ordinary usage may give rise to a shorter name. However apart from banishing the term 'insanity' there are limits on how far statute can shape linguistic practices in this context.    [Back]

Note 60   2003 Act, s 328(1). Section 328(2) states that a person is not mentally disordered by reason only of any the following factors: (a) sexual orientation; (b) sexual deviancy; (c) transsexualism; (d) transvestism; (e) dependence on, or use of, alcohol or drugs; (f) behaviour that causes, or is likely to cause, harassment, alarm or distress to any other person; (g) acting as no prudent person would act.    [Back]

Note 61   1995 Act, s 307 (as added by 2003 Act, s 331(1) and Sch 4, para 8(16)(d)).    [Back]

Note 62   As noted earlier (para 2.26) the civil law definition contains various negative indicators (2003 Act, s 328(2)). It is highly unlikely that any of these factors would ever be considered as indicating mental disorder in the context of criminal responsibility. Accordingly we see no need to use such negative indicators in the definition of mental disorder as a component of the defence. The definition of mental disorder in the 1995 Act follows that of s 328(1), but not s 328(2), of the 2003 Act.    [Back]

Note 63   See paras 2.57-2.63.    [Back]

Note 64   For a detailed account and criticism of insanity as a status defence, see Mackay, pp 81-90. See also V Tadros, "Insanity and the Capacity for Criminal Responsibility" (2001) 5 Edin L R 325 for an argument that the Scots law of insanity should be understood in terms of the accused person as someone who is not an appropriate subject for criminal responsibility.    [Back]

Note 65   Butler Report, para 18.29.    [Back]

Note 66   Law Commission: Criminal Law: Codification of the Criminal Law. Report to the Law Commission (Law Com No 143, 1985), para 12.6.    [Back]

Note 67   The question of the appropriate effect of mental disorder is considered next at paras 2.38-2.51.    [Back]

Note 68   Discussion Paper, paras 2.32-2.34.    [Back]

Note 69   McAuley, pp 12-13.    [Back]

Note 70   Paras 2.52-2.56.    [Back]

Note 71   As McAuley notes (p 25): "If the [M'Naghten] Rules did not exist, it would be necessary to invent something very like them."     [Back]

Note 72   See R v Codère (1916) 12 Cr App Rep 21 for this interpretation in English law.    [Back]

Note 73   See McAuley, p 30: "[I]f the Rules are construed from the point of view of their implicit logical form, the first limb of the knowledge test can be seen to be much wider than has traditionally been supposed. Contrary to the interpretation that comes down fromCodère, it goes tothe accused's ability to evaluate his actions, including his reasons or motives for committing them and the consequences normally associated with them, in the way that a sane person can. An accused who cannot do this may know what he is doing in a literal sense, but he does not know why he is doing it and cannot assess its true effects. He may be quite clear about the 'physical character' of his actions, ... or even about their immediate physical consequences, .... But since he cannot break out of the circle described by his insane delusions, he does not know what he is doing in any epistemologically significant sense. Unlike the sane person, he cannot measure the effects of his actions or assess the validity or propriety of his motives against the criteria by which they are ordinarily judged." (Emphasis added.)    [Back]

Note 74   R v Windle [1952] 2 QB 826.    [Back]

Note 75   Criticisms of the narrowness of the approach in Windle can be found in Stapleton v The Queen (1952) 86 CLR 358 per Dixon CJ at 368, (High Court of Australia).    [Back]

Note 76   (1936) 55 CLR 182 per Dixon J at 189-190.    [Back]

Note 77   The American Law Institute, Model Penal Code, Official Draft (1985), s 4.01(1). The definition also contains a volitional element in terms of the accused lacking substantial capacity "to conform his conduct to the requirements of law."    [Back]

Note 78   RS 1985 c. C-46, s 16(1). In R v Barnier 109 DLR (3d) 257 (1980), the Supreme Court of Canada in interpreting a previous version of this rule stressed that 'appreciating' was a wider concept than that of 'knowing.'    [Back]

Note 79   Gordon, p 433.    [Back]

Note 80   Hume I, 37. See also Alison, Principles of the Criminal Law of Scotland (1832), pp 645-646 for the view that the defence of insanity is concerned with an insane understanding of the situation rather than with knowledge in a narrow sense: "For example, a mad person may be perfectly aware that murder is a crime, and will admit that, if pressed on the subject; but still he may conceive that a homicide he had committed, was nowise blameable, because the deceased had engaged in a conspiracy with others against his own life; or was his mortal enemy, who had wounded him in his dearest interests, or was the devil incarnate, whom it was the duty of every good Christian to meet with the weapons of carnal warfare. If, therefore, the accused is in such a situation that, though possessing a sense of the distinction between right and wrong, he cannot apply it correctly in his own case, and labours under an illusion which completely misleads his judgment, as mistaking one person for another, or fastening a dreadful charge, entirely groundless, on a friend, he is entitled to the benefit of the plea of insanity in defence against a criminal charge."    [Back]

Note 81   In his direction to the jury in HM Advocate v Kidd 1960 JC 61 at 71, Lord Strachan stated: "A man may know very well what he is doing, and may know that it is wrong, and he may none the less be insane. It may be that some lunatics do an act just because they know it is wrong."    [Back]

Note 82   1960 JC 61 at 70.    [Back]

Note 83   This point is explored by McAuley, pp 52-61.    [Back]

Note 84   See McAuley, p 61: "[T]he hypothesis of non-cognitive insanity holds up if and only if knowledge is defined in purely perceptual terms, since it is true that some psychotics know what they are doing in a physical sense. But it is patently false once knowledge is defined in the standard epistemological sense understood by psychiatrists: as the ability to formulate justified beliefs and desires and to test them against what is commonly known about the world. On that definition of knowledge, there is no such thing as non-cognitive or purely volitional insanity: all forms of serious mental illness are cases of cognitive insanity given that they are marked by an inability to test or justify beliefs and desires against the publicly available evidence – the existence of control tests and the legal fiction of volitional insanity to which they refer, notwithstanding."    [Back]

Note 85   For accounts of the history of the concept see Butler Report, pp 77-83; Report of the Committee of Inquiry into the Personality Disorder Unit, Ashworth Special Hospital (Cm 4194-II, 1999), Vol 1, pp 347-361.    [Back]

Note 86   See Ashworth Special Hospital Report pp 361-362: "Psychopathic disorder now has three meanings. It is a legal classification as one of the four categories of mental disorder in the [English] Mental Health Act 1983; it is a clinical diagnostic construct or category in some classifications and it is used as a term of abuse in the vernacular."    [Back]

Note 87   From the perspective of psychiatry two influential classifications may be noted. The International Classification of Disease (ICD-10) (World Health Organisation 1992) lists a category of 'dissocial personality disorder' (F60.2): "[A] personality disorder, usually coming to attention because of a gross disparity between behaviour and the prevailing social norms, and characterised by (a) callous unconcern for the feelings of others; (b) gross and persistent attitude of irresponsibility and disregard for social norms, rules and obligations; (c) incapacity to maintain enduring relationships, though having no difficulty in establishing them; (d) very low tolerance to frustration and a low threshold for discharge of aggression, including violence; (e) incapacity to experience guilt or to profit from experience, particularly punishment; (f) marked proneness to blame others, or to offer plausible rationalisations, for the behaviour that has brought the patient into conflict with society." Diagnostic and Statistical Manual of Mental Disorders (DSM-IV; 4th ed). (American Psychiatric Association (2000)) refers to a category of 'antisocial personality disorder' (301.7): "[A] pervasive pattern of disregard for and violation of the rights of others . . ., as indicated by three (or more) of the following: (1) failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest; (2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure; (3) impulsivity or failure to plan ahead; (4) irritability and aggressiveness, as indicated by repeated physical fights or assaults; (5) reckless disregard for safety of self or others; (6) consistent irresponsibility, as indicated by repeated failure to sustain consistent work behavior or honor financial obligations; (7) lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another."     [Back]

Note 88   Section 4.01(2).    [Back]

Note 89   See the decision of the High Court of Australia in Willgoss v The Queen (1960) 105 CLR 295.    [Back]

Note 90   Butler Report, para 18.30.     [Back]

Note 91   We consider whether the condition of psychopathic personality disorder should come within the scope of the plea of diminished responsibility at paras 3.24-3.34.    [Back]

Note 92   Mental Health Act 1983, s 1(2): "In this Act . . . 'psychopathic disorder' means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned."    [Back]

Note 93   The 2003 Act does not contain any separate reference to psychopathy. The scheme of the Act is that all types of personality disorder should be dealt with in the same way.    [Back]

Note 94   See for example R v Secretary of State for Scotland 1999 SC(HL) 17 at 19 (Lord Lloyd of Berwick): "The medical evidence at the trial was to the effect that [the petitioner] was suffering from what was then known in Scotland as mental deficiency, but is now known as mental handicap. It is common ground (and the sheriff has so found) that he is not mentally handicapped. Instead he is suffering from a 'persistent and permanent mental disorder' characterised by 'abnormally aggressive and seriously irresponsible behaviour.' In other words he is a psychopath." Ibid at 44 (Lord Hutton): "Whilst I recognise that there is medical debate as to the appropriateness of the term 'psychopath' in modern times, it is convenient for the purpose of considering the construction of secs 17 and 64 [of the 1984 Act] to use that term in relation to a person whose mental disorder is 'a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct.' "    [Back]

Note 95   (1979) 2 EHRR 387.    [Back]

Note 96   Para 37.    [Back]

Note 97   Para 39.    [Back]

Note 98   See A Ashworth, Principles of Criminal Law (3rd edn, 1999), pp 215-217; P J Sutherland and C A Gearty, "Insanity and the European Court of Human Rights" [1992] Crim L Rev 418; Estella Baker, "Human Rights, M'Naghten and the 1991 Act" [1994] Crim L Rev 84. Concern about the compatibility of the M'Naghten Rules with the ECHR was one of the reasons why the courts in Jersey refused to apply the Rules as part of the definition of insanity in that jurisdiction. For discussion see R D Mackay and C A Gearty, "On being Insane in Jersey – the case of Attorney General v Jason Prior" [2001] Crim L Rev 560.     [Back]

Note 99   1995 Act, s 61(1), (6), (7).    [Back]

Note 100   Formerly an exception existed in the case of murder. Where a person had been found insane as a defence or a plea in bar of trial on a charge of murder, the court had no discretion but had to make an order for detention subject to special restrictions and without limit of time. This provision was not compatible with the provisions of the Convention and was repealed by the Criminal Justice (Scotland) Act 2003, s 2(b).    [Back]

Note 101   For a full account of the development of diminished responsibility, see Gordon, pp 458-467. (Volume I of this edition of Gordon's book was published before the decision in Galbraith v HM Advocate 2002 JC 1 but there is a short discussion of the law since Galbraith in volume II, pp 333-334, fn 35.)    [Back]

Note 102   1923 JC 49 at 51.    [Back]

Note 103   Carraher v HM Advocate 1946 JC 108, where the Court held that the plea was not available to a person suffering from psychopathic personality.    [Back]

Note 104   2002 JC 1.    [Back]

Note 105   Millan Report, paras 29.51-29.61.    [Back]

Note 106   At 2002 JC 1 at 20-21 the Court set out a long list of non-exhaustive examples of conditions which would qualify as diminished responsibility.    [Back]

Note 107   2002 JC 1 at 16. In somewhat unusual circumstances the Court in Galbraith did not have the benefit of full submissions on what the reformed test should be: ibid at 10.    [Back]

Note 108   In Galbraith the Court itself recognised that the limits to the plea were essentially matters of public policy, which were ultimately for the legislature to decide: 2002 JC 1 at 17.    [Back]

Note 109   See Discussion Paper, Appendix E.    [Back]

Note 110   Gordon, p 452. The Butler Committee stated (para 19.8): "The case for the plea of diminished responsibility now rests largely on the fact that precisely because there is a fixed sentence of life imprisonment for murder there should be some way for the court to avoid it in cases where there is evidence of mental disorder. Diminished responsibility is a special device for, as it were, untying the hands of the judge in murder cases."     [Back]

Note 111   We consider the issue whether the plea should apply to crimes other than murder at paras 3.43-3.50.    [Back]

Note 112   Butler Report, para 19.14. A similar recommendation was made in 1989 by a select committee of the House of Lords (House of Lords, Report of the Select Committee on Murder and Life Imprisonment (HL 78, 1988-89), paras 83 and 118).    [Back]

Note 113   Section 1 of the Crime and Punishment (Scotland) Act 1997 provided for the introduction of other mandatory sentences into Scots law but this provision was never brought into effect. It was repealed by s 19(3) of the Criminal Justice (Scotland) Act 2003. It may also be noted that the MacLean Committee on Serious Violent and Sexual Offenders consulted on the possibility that mandatory life sentences should be extended to other offences. The overwhelming response was against this proposal and the Committee agreed that the mandatory sentence should be confined to murder cases (Report of the Committee on Serious Violent and Sexual Offenders, chaired by the Hon Lord Maclean (SE/2000/68), paras 4.14-4.23).     [Back]

Note 114   1939 JC 36 at 40.    [Back]

Note 115   The sidenote to section 2 of the Homicide Act 1957 refers to 'Persons suffering from diminished responsibility.' The Butler Committee proposed that if its preferred option (abolition of both the mandatory sentence for murder and diminished responsibility) were not accepted a revised version of section 2 should be introduced. It did not suggest any change to the name of the plea, though its various recommendations referred to the term in "scare" quotes (Butler Report, p 251).    [Back]

Note 116   See Criminal Code Act 1899 (Queensland), s 304A; Crimes Act 1900 (New South Wales), s 23A; Crimes Act 1900 (Australian Capital Territory), s 14; Criminal Code 1983 (Northern Territory), s 37.    [Back]

Note 117   As one of our consultees noted, the comments of the Court in Kirkwood v HM Advocate relate less to the name of the plea and more to its existence.    [Back]

Note 118   2002 JC 1 at 16, 21, and 22 respectively.    [Back]

Note 119   See para 3.3.    [Back]

Note 120   Part of the proposed definition was that a "person who but for this section would be convicted of murder shall not be so convicted if it is established on medical or other evidence that his or her condition at the time of the commission of the offence amounted to such extenuating circumstances as to justify a conviction for culpable homicide instead of a conviction for murder." (Discussion Paper, para 3.38.)    [Back]

Note 121   High Court of Justiciary, Dundee, October 1967, unreported but see (1968) 32 JCL 119.    [Back]

Note 122   Paras 5.29-5.37.    [Back]

Note 123   Criminal Justice (Scotland) Act 2003, s 2(b).    [Back]

Note 124   2002 JC 1 at 18.    [Back]

Note 125   Paras 5.50-5.53.    [Back]

Note 126   2002 JC 1 at 17.    [Back]

Note 127   1946 JC 108.    [Back]

Note 128   1946 JC 108 at 118.    [Back]

Note 129   1944 JC 171.    [Back]

Note 130   1939 JC 36.    [Back]

Note 131   "The Court has a duty to see that trial by judge and jury according to law is not subordinated to medical theories." (1946 JC 108 at 117.)    [Back]

Note 132   2002 JC 1 at 21.    [Back]

Note 133   R v Byrne [1960] 2 QB 396 (a case of sexual psychopathy); R v Terry [1961] 2 QB 314.    [Back]

Note 134   See para 2.60.    [Back]

Note 135   This is a point brought out by McAuley, pp 85-90.    [Back]

Note 136   These orders were introduced by the Criminal Justice (Scotland) Act 2003, s 1. They apply inter alia where a person has been convicted of a violent offence (other than murder), which would include a conviction of culpable homicide based on diminished responsibility.    [Back]

Note 137   This approach was confirmed by some of the consulted mental health experts from their own professional experience.     [Back]

Note 138   Paras 3.5-3.9.    [Back]

Note 139   2002 JC 1 at 17.    [Back]

Note 140   1977 JC 38 at 46. The last dictum was obiter (Brennan was concerned with the defences of insanity and intoxication). See also R v Fenton (1975) 61 Cr App Rep 261; R v Egan [1992] 4 All ER 470.    [Back]

Note 141   Alexander Dingwall (1867) 5 Irv 466. Other earlier cases of diminished responsibility which involved alcoholism include Andrew Granger (1878) 4 Couper 86; HM Advocate v Graham (1906) 5 Adam 212.    [Back]

Note 142   [2003] 1 AC 1209.    [Back]

Note 143   Their Lordships approved the following direction for a jury ([2003] 1 AC 1209 at 1227): " 'Assuming that the defence have established that the defendant was suffering from mental abnormality as described in section 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant's mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him.' "     [Back]

Note 144   This approach was adopted in the direction to the jury in HM Advocate v McLeod (High Court of Justiciary at Forfar, 24 October 2002). This case involved an accused who suffered from post-traumatic stress disorder consequent upon sexual abuse experienced as a child. At the time of the fatal attack he was intoxicated after voluntarily inhaling butane gas. Relevant passages from the direction to the jury include the following: "Now, there is, as I have mentioned, a further important rule in this area, and that is the plea of diminished responsibility cannot be based on the fact that the accused has induced mental abnormality himself by taking an intoxicating substance - - alcohol or drugs or butane gas. That is a clear rule of law, and the reasons for it are perhaps obvious." (Transcript, p 29.) "But on the basis of this area of the evidence you might conclude any one of three things: first of all, that the butane gas was the sole substantial cause of the violence; secondly, that the PTSD inducing the flashback was the sole cause of the violence; or thirdly that both the gas and the PTSD-induced flashback played a part, they were both causes of the attack on [the victim]. If you conclude the first of these, that the inhalation of gas was the sole substantial cause of the violence, then there would be no basis for diminished responsibility. The rule that I have described about taking intoxicating substances would apply, and there is no room for diminished responsibility, so your verdict would have to be murder. If you find - - if your conclusion is the second of the three I have described, that the PTSD-induced flashback was the sole substantial cause, then that is a very clear basis for diminished responsibility - - in other words, in that case your verdict would necessarily be culpable homicide. If, on the other hand, you take the view that both causes were operating, the rule is as follows: if you conclude that PTSD was the substantial cause of the violent attack, that is a basis for diminished responsibility, and your verdict should be culpable homicide. The test, in other words, is whether the abnormality of mind, other than intoxication, is a substantial cause of the attack. It needn't be the only cause. It needn't even be the main or predominant cause. It is sufficient that it is a substantial cause." (Ibid, pp 31-32.) For discussion of this case see J Casey, "Intoxication and Diminished Responsibility" 2003 Jur Rev 331.     [Back]

Note 145   Cf R v Tandy [1989] 1 WLR 350. For useful discussion, see G R Sullivan, "Intoxicants and Diminished Responsibility" [1994] Crim L Rev 156.    [Back]

Note 146   In the present context we are considering only cases of voluntary acute intoxication. Where a person commits a crime whilst involuntarily intoxicated the appropriate defence is automatism. See Ross v HM Advocate 1991 JC 210.     [Back]

Note 147   We discuss the range of offences to be covered by the plea at paras 3.43-3.50.    [Back]

Note 148   See eg John M'Lean (1876) 3 Couper 334 (a case of housebreaking); John Fothergill Wilson (1877) 3 Couper 429 (fire-raising); John Small (1880) 4 Couper 388 (robbery); Alan Fergusson (1894) 1 Adam 517 (fire-raising).    [Back]

Note 149   As in Andrews v HM Advocate 1994 SCCR 190 (indecent assault) and Arthur v HM Advocate 1994 SCCR 621 (assault). In the rubric in the SCCR report of both cases the expression 'diminished responsibility' is used. At no point in either case, however, are counsel or judges reported as using this expression, referring instead to a 'mental disorder short of insanity' (1994 SCCR 621 at 624).    [Back]

Note 150   HM Advocate v Blake 1986 SLT 661 at 663.    [Back]

Note 151   1963 JC 80 at 84.    [Back]

Note 152   1977 JC 38 at 47.    [Back]

Note 153   2002 JC 1 at 18.    [Back]

Note 154   Sections 118(7) and 189(7) of the 1995 Act give the High Court the power to pronounce sentencing guidelines which a court in later cases would be required to consider when passing sentence (1995 Act, s 197). However, the High Court has so far shown no indication that it will exercise this power.    [Back]

Note 155   Cawthorne v HM Advocate 1968 JC 32.    [Back]

Note 156   2002 JC 1 at 16: "In our law diminished responsibility applies in cases where, because the accused's ability to determine and control his actings is impaired as a result of some mental abnormality, his responsibility for any killing can properly be regarded as correspondingly reduced." At 18 the Court said: "Because the individual is not fully responsible in law for what he does when his mental state is substantially impaired, the law mitigates the punishment which it deems appropriate for his criminal acts. In the case of murder, however, the sentence has always been fixed by law and cannot be varied by the judge according to the circumstances." Similarly at 19: "The law responds in this way, however, because it recognises that the individual is to be pitied since, at the relevant time, he was not as normal people are. There was unfortunately something far wrong with him, which affected the way he acted."    [Back]

Note 157   2001 SLT 1013.    [Back]

Note 158   The decision in Drury was given in February 2001. The hearing before the Full Court in Galbraith took place in June 2001, and the opinion delivered in July 2001. Two judges, including the Lord Justice General as presiding judge, were members of the Court in both cases.    [Back]

Note 159   J Chalmers, "Collapsing the Structure of Criminal Law" 2001 SLT (News) 241; M G A Christie, "The Coherence of Scots Criminal Law: Some Aspects of Drury v HM Advocate" 2002 Jur Rev 273.    [Back]

Note 160   Gordon, p 309.    [Back]

Note 161   Paras 2.64-2.68.    [Back]

Note 162   Paras 5.46-5.48; 5.10-5.26.    [Back]

Note 163   A possible explanation is that the court will usually accept medical evidence about the accused's condition with the result that few cases require any direction to a jury (Gordon, p 448). We discuss the evidential aspects of the plea in bar at paras 5.60-5.63.    [Back]

Note 164   (1907) 5 Adam 312 at 343.    [Back]

Note 165   1942 JC 75 at 79.    [Back]

Note 166   'Court' is defined for these purposes as the High Court of Justiciary and the sheriff court (1995 Act, s 54(8)). Where in proceedings in the district court it appears that the accused may be suffering from a mental disorder, the court must remit the case to the sheriff court (1995 Act, s 52A).     [Back]

Note 167   In R v Antoine [2001] 1 AC 340 the House of Lords in interpreting similar (but not identical) provisions in English law held that whether the accused had done the act or made the omission in question involved proof only of the actus reus but not of the mens rea of the offence. It also held on an interpretation of section 2 of the English Homicide Act 1957 that a defence of diminished responsibility could not be raised in the proceedings to determine the facts but that defences such as mistake, accident, self-defence or involuntarinesss could be established on the basis of objective evidence. The Scottish provisions are drafted differently. They require an acquittal after an examination of facts unless it is established on the balance of probabilities that there are no grounds for acquitting the accused (1995 Act, s 55(1)(b)). As diminished responsibility does not lead to an acquittal it would not arise under this provision but other defences, including insanity at the time (see s 55(4)), would. The courts in England have held that as the corresponding English provisions did not result in a conviction they did not fall within the scope of article 6 of the ECHR in relation to the rights of a person accused of a crime (R v M [2002] 1 WLR 824 (CA); R v H [2003] 1 WLR 411 (HL)).    [Back]

Note 168   For discussion see paras 1.12-1.13. The same outcome arises where after an examination of facts the accused is acquitted on the ground of insanity at the time of the offence.    [Back]

Note 169   Para 4.12.    [Back]

Note 170   Paras 4.24-4.30.    [Back]

Note 171   Paras 2.64-2.68.    [Back]

Note 172   Pleading to an indictment had a crucial importance in the development of English criminal law, as refusal to plead had the consequence that a trial could not proceed. English law on unfitness to plead developed from a distinction between persons who were mute of malice and those mute by the visitation of God: see N Walker, Crime and Insanity in England, volume 1: The Historical Perspective (1968), p 220.    [Back]

Note 173   The skills we listed concerned the ability of the accused to perform the following tasks: to understand the nature of the charge; to understand the requirement to tender a plea to the charge or the effect of a plea; to understand the purpose of a trial; to follow the course of a trial; to understand the substantial effect of evidence given against him; to communicate adequately with his legal representative; to give adequate instructions to his legal representative.     [Back]

Note 174   "A plea in bar of trial, as distinguished from a plea or special defence in exculpation, or in mitigation of the gravity of a charge, is a claim that the accused is not a fit object for trial – at least in the meantime." (Russell v HM Advocate 1946 JC 37 per Lord Justice Clerk Cooper at 46.)    [Back]

Note 175   362 US 402, 406 (1960). See Richard J Bonnie, "The Competence of Criminal Defendants: Beyond Dusky and Drope" (1993) 47 University of Miami Law Review 539. Professor Bonnie was one of the speakers at the seminar which we held at the beginning of the project. At the seminar he reformulated the test for adjudicative competence as follows: "A defendant is competent to proceed to [adjudication] [trial] if he has a rational understanding of the charge against him, the nature and purpose of the proceedings and the adversary process, is able to assist counsel in his defense, and has the capacity for rational decision-making in relation to the defense and the disposition of the case."    [Back]

Note 176   R v Friend [1997] 1 WLR 1433 at 1441.    [Back]

Note 177   Criminal Procedure (Mentally Impaired Persons) Act 2003, s 4.    [Back]

Note 178   In Attorney General v O'Driscoll (Royal Court of Jersey (Samedi Division), 9 July 2003) Sir Philip Bailhache, Bailiff, formulated a test for the law of Jersey on unfitness to plead in terms of the principle of effective participation. One of the sources considered by Sir Philip was our Discussion Paper.    [Back]

Note 179   The situation would be different if the child also suffered from a condition which affected his capacity to understand and participate in proceedings. See eg HM Advocate v S (High Court of Justiciary, 9 July 1999), a case involving the prosecution of a boy aged 13 who had learning disabilities. For discussion, see C Connelly and C McDiarmid, "Children, Mental Impairment and the Plea in Bar of Trial" (2000) 5 Sc Law & Prac Qu 157.    [Back]

Note 180   HM Advocate v Wilson 1942 JC 75 (a case of deaf-mutism).    [Back]

Note 181   1946 JC 37.    [Back]

Note 182   (1907) 5 Adam 312 at 344. Lord Dunedin also referred (at 346) to a person who "can tell his counsel, with the certainty of not being deceived, what he was really doing at the time."    [Back]

Note 183   1946 JC 37 at 47.    [Back]

Note 184   2002 JC 23.    [Back]

Note 185   R v Podola [1960] 1 QB 325.     [Back]

Note 186   Or indeed the defence of insanity at the time: see HM Advocate v Kidd 1960 JC 61 at 64, 69 and 73.    [Back]

Note 187   See paras 2.64-2.66.    [Back]

Note 188   These rights include the right of an accused to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; and the right to have free assistance of an interpreter if he cannot understand or speak the language used in court.    [Back]

Note 189   Application No 14453/88, decided 12 February 1990.    [Back]

Note 190   Stanford v United Kingdom (Series A282-A).    [Back]

Note 191   In the Court's view a State could not normally be held responsible for the actions or decisions of an accused's lawyer unless a failure by the lawyer to provide effective representation is manifest or sufficiently brought to the attention of the State authorities.    [Back]

Note 192   (2000) 30 EHRR 121.    [Back]

Note 193   HM Advocate v Mitchell 1951 JC 53; HM Advocate v Kidd 1960 JC 61 at 68-69.    [Back]

Note 194   See furtherStair Memorial Encyclopaedia, vol 10, paras 747-748.    [Back]

Note 195   Viz, proof beyond reasonable doubt and proof on the balance of probabilities. These standards of proof are the only two recognised in the Scots law (ibid, para 758).    [Back]

Note 196   Dickson, A Treatise on the Law of Evidence in Scotland (3rd edn, 1887), paras 27 and 114. Note should be made of a passage in Hume (I, 43-44) that the onus of proving furiosity lies on the person claiming it, adding 'like any other defence.' Hume also considers cases where a person suffers from periodical disorder and whether it can be presumed that such a person is (or is not) furious now. However he reaches the general conclusion that there can be no hard and fast presumption and it is really a matter for the whole evidence in the case.    [Back]

Note 197   1973 JC 53.    [Back]

Note 198   Ibid at 57.    [Back]

Note 199   As is the case in respect of automatism: Ross v HM Advocate 1991 JC 210 at 226-227.    [Back]

Note 200   Although not technically special defences, advance notice must also be given of the defences of automatism, coercion and consent as a defence to certain sexual offences (1995 Act, s 78(2)).    [Back]

Note 201   This point is clearly illustrated in the case of automatism. In Sorley v HM Advocate 1992 JC 102 the Court held that in the absence of any evidence from the accused to support the necessary prerequisites of the defence of automatism, it was proper for a trial judge to direct the jury that it was not open to them to consider the defence. The Court pointed out that it was unlikely that the requirements of a foundation for the defence would be satisfied unless there was some supporting expert evidence, since the essence of the defence was a state of mind which had to be properly diagnosed. A similar point was made in Ross v HM Advocate 1991 JC 210 at 232 where Lord Weir stated that since "the state of mind of the accused is at the heart of the issue, it is to be expected that medical and possibly other scientific evidence will be requiredjust as it is in a case where the defence of insanity is raised." (Emphasis added.)    [Back]

Note 202   See Lord Hope of Craighead in R v Lambert [2002] 2 AC 545 at 588-589, cited at para 5.24.    [Back]

Note 203   A point made about the defence of automatism in Ross andSorley.    [Back]

Note 204   Salabiaku v France (1988) 13 EHRR 379, 388, para 28.    [Back]

Note 205   H v United Kingdom, Application 15023/89, decided 4 April 1990.    [Back]

Note 206   T H Jones, "Insanity, Automatism and the Burden of Proof on the Accused" (1995) 111 LQR 475, 490-491.    [Back]

Note 207   [2002] 2 AC 545.    [Back]

Note 208   Sometimes a provision on the burden of proving a defence can arise where statute itself creates one. Thus the plea of diminished responsibility was introduced into English law by section 2 of the Homicide Act 1957. Section 2(2) provides that on "a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder."    [Back]

Note 209   For example the supply of controlled drugs in the Lambert case itself.    [Back]

Note 210   [2002] 2 AC 545 at 572 (Lord Steyn).    [Back]

Note 211   "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." (Human Rights Act 1998, s 3(1).)    [Back]

Note 212   [2002] 2 AC 545. See eg Lord Clyde at 609: "By imposing a persuasive burden on the accused it would be possible for an accused person to be convicted where the jury believed he might well be innocent but have not been persuaded that he probably did not know the nature of what he possessed. The jury may have a reasonable doubt as to his guilt in respect of his knowledge of the nature of what he possessed but still be required to convict. Looking to the potentially serious consequences of a conviction at least in respect of class A drugs it does not seem to me that such a burden is acceptable." See also Lord Slynn at 563 and Lord Steyn at 573-574. Lord Hope at 587-590 expressed his doubts about legal burdens of proof in more general terms. Lord Hutton at 625 considered that the burden in the Misuse of Drugs Act was appropriate and proportionate and as such did not violate article 6(2) of the European Convention on Human Rights.    [Back]

Note 213   The Crown Office, and Mr James Chalmers of Aberdeen University (see his paper, "Reforming the Pleas of Insanity and Diminished Responsibility: Some Aspects of the Scottish Law Commission's Discussion Paper" (2003) 8 Sc Law & Pract Qu 79).    [Back]

Note 214   Mr Chalmers notes that "the reverse burden applies in England, Canada, the majority of the US states, all Australian states, New Zealand and South Africa." (Ibid 81.)    [Back]

Note 215   [2002] 2 AC 545.    [Back]

Note 216   The text of Renton & Brown (para 24-01) which immediately followed the Lambert case stated that the "decision has been accepted in practice by the Crown, and would appear to be applicable to other statutory defences in similar terms." However in the most recent text this statement is qualified by the view that "[w]hether or not a particular provision placing a burden of proof on the accused should be 'read down' in terms of s. 3 of the Human Rights Act 1998 will depend therefore on factors peculiar to that provision."     [Back]

Note 217   See R v Drummond [2002] EWCA Crim 527; L v DPP [2002] 3 WLR 863; R v Matthews [2003] EWCA Crim 813 (The Times 28 April 2003); R v Benjafield (HL) [2003] 1 AC 1099 (CA) and 1133 (HL); Sliney v Havering LBC [2002] EWCA 2558 (CA); R v Johnstone [2003] UKHL 28 (HL).     [Back]

Note 218   [1990] 3 SCR 1303.    [Back]

Note 219   Section 16(4) of the Canadian Criminal Code of 1985 states that "[e]very one shall, until the contrary is proved, be presumed to be and to have been sane." The Canadian Charter of Rights and Freedoms provides (article 11(d)) that " any person charged with an offence has the right . . . to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." Article 1 of the Charter guarantees the rights set out in it "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This provision has been interpreted in terms of the tests of proportionality and balance of competing interests akin to those used in respect of the European Convention.     [Back]

Note 220   A plurality of justices argued that a burden on the accused to prove insanity did not engage the presumption of innocence at all. Their approach was based on characterising the insanity defence as concerned with legal capacity in a broad sense and not with mens rea. They argued that the presumption of innocence is concerned with the onus on the Crown to prove actus reus and mens rea, and as such does not involve any question of proof of insanity.     [Back]

Note 221   [1990] 3 SCR 1303 at 1344-1345 (per Lamer CJ).    [Back]

Note 222   We are proceeding on the assumption that the presumption of innocence requires proof of the accused's general criminal responsibility and not simply of the actus reus and mens rea of the offence. This assumption was challenged by some of the justices inR v Chaulk.    [Back]

Note 223   Para 5.17.    [Back]

Note 224   [2002] 2 AC 545 at 588-589.    [Back]

Note 225   1973 JC 53.    [Back]

Note 226    High Court of Justiciary, Dundee, October 1967, unreported but see (1968) 32 JCL 119.    [Back]

Note 227   It may be noted that under section 52(1) of the 1995 Act where it appears to the Crown in any proceedings that the accused may be suffering from a mental disorder, the Crown is under a duty to bring before the court any evidence as may be available as to the mental condition of the accused. However this provision focuses on the accused's mental condition at the time of the proceedings. As such it has implications for insanity as a plea in bar but not for the special defence.    [Back]

Note 228   Bratty v Attorney-General for Northern Ireland [1963] AC 386; R v Dickie [1984] 3 All ER 173. By section 6 of the Criminal Procedure (Insanity) Act 1964 where the accused raises a defence of diminished responsibility, the prosecution is entitled to lead evidence showing that the accused was insane at the time. In this situation the Crown must prove the accused's insanity beyond reasonable doubt (R v Grant [1960] Crim L Rev 424). The 1964 Act also provides that where the accused raises the defence of insanity, the prosecution can lead evidence to show that the accused's condition fell within the scope of diminished responsibility.     [Back]

Note 229   The majority of mental health disposals made by the courts follow the conviction of the accused rather than acquittal on the ground of the special defence: see Derek Chiswick, "Mental Disorder and Criminal Justice" in P Duff and N Hutton, Criminal Justice in Scotland (1999) 278 at pp 274-280.    [Back]

Note 230   Consultees did not favour the argument that in some cases it might be necessary to proceed with a criminal trial in order to identify the perpetrator of a crime. See eg Chalmers (2003) 8 Sc Law & Prac Qu 79 at 85: "The difficulty with this approach is that a criminal trial is not a fact-finding inquiry as such, but is a vehicle for determining whether a specified individual is criminally liable for the offence with which he is charged. If a criminal trial could be used for the purpose which the Commission suggests, it is difficult to see why it could not similarly be used to resolve uncertainty over who committed an offence where the individual suspected is (for example) under the age of criminal responsibility, dead or outwith the jurisdiction of the court."    [Back]

Note 231   The Crown Office suggested that the law should go no further than allowing the Crown to agree to an acquittal where insanity is raised by the accused. See paras 5.40-5.43.    [Back]

Note 232   Historically special defences were so-named because, unlike a general plea of not guilty, they specified the basis for the accused's lack of guilt (Hume II, 283). The main consequence of the characterisation was that the accused had to give advance notice of the defence to the Crown and special defences are frequently, though inaccurately, defined in terms of the requirement to give notice. Under the present law there are no notice requirements for special defences in summary cases but it is still correct to refer to 'special defences' in this type of proceedings (see eg Howman v Ross (1891) 29 Sc L Rep 281; Adam v MacNeill 1972 JC 1). A recent review of summary criminal procedure has recommended that special defences in summary cases should be intimated prior to the trial diet. (See The Summary Justice Review Committee. Report to Ministers (2004), para 20.21.)     [Back]

Note 233   1995 Act, ss 78; 89.    [Back]

Note 234   See Ross v HM Advocate 1991 JC 210 at 218 (Lord Justice General Hope) and 227 (Lord McCluskey).    [Back]

Note 235   High Court of Justiciary, Edinburgh, 28 October 1998.    [Back]

Note 236   Where a joint minute has been signed by both parties and lodged with the court all agreed facts are deemed to have been duly proved (s 256(3)).    [Back]

Note 237   In the case of insanity in bar of trial, the issue can be decided by the court alone, even in solemn proceedings (1995 Act, s 54(1)). In Stewart v HM Advocate 1997 JC 183 the Court envisaged that unless the question of unfitness to plead arises during the course of a trial the proper mode of disposing of the plea is by a preliminary hearing before a judge sitting alone.    [Back]

Note 238   Where an issue of insanity in bar of trial arises in a case in the district court that court has to remit the case to the sheriff court (1995 Act, s 52A).    [Back]

Note 239   1945 JC 55 at 58. An identical direction to the jury was given in HM Advocate v Blake 1986 SLT 661.    [Back]

Note 240   Section 2(2) of the Homicide Act 1957 provides that the onus of proving diminished responsibility lies with the defence. The standard of proof is balance of probabilities (R v Dunbar [1958] 1 QB 1).    [Back]

Note 241   2002 JC 1.    [Back]

Note 242   In R v Lambert; R v Ali; R v Jordan [2002] QB 1112 the Court of Appeal in England held that the similar rule in English law does not breach the requirements of article 6(2) of the Convention. A decision to the same effect had earlier been made by the European Commission of Human Rights (Robinson v United Kingdom, App No 20858/92 (Unreported, 5 May 1993)).     [Back]

Note 243   Criminal Procedure (Insanity) Act 1964, s 6.    [Back]

Note 244   1995 Act, s 78(1), (2).    [Back]

Note 245   Report on Criminal Procedure in Scotland (Second Report) by a Committee chaired by the Hon Lord Thomson (Cmnd 6218, 1975), para 37.11.    [Back]

Note 246   Namely automatism, coercion and consent in relation to certain sexual offences.    [Back]

Note 247   HM Advocate v Brown (1907) 5 Adam 312 at 315-316; Renton & Brown, para 26-08.    [Back]

Note 248   In England, where the contention that the accused is unfit to plead is raised by the defence, the defence bears a legal burden of proof which is to be discharged by proof on the balance of probabilities (R v Podola [1960] 1 QB 325). Where the prosecution alleges insanity as the basis of unfitness to plead, the onus is on the Crown to prove it beyond reasonable doubt (R v Robertson [1968] 3 All ER 557 at 560).    [Back]

Note 249   1989 SCCR 600.    [Back]

Note 250   The sheriff also held that in this situation the burden of proof lay on the Crown.    [Back]

Note 251   A finding that the accused is unfit for trial leads to an examination of facts. Here the accused's position is protected by the requirement that proof that he committed the act charged against him must be established beyond reasonable doubt (1995 Act, s 55(1)).    [Back]

Note 252   1997 JC 222. See also Stewart v HM Advocate 1997 JC 183 (where evidence consisted of a joint minute by two medical practitioners which agreed the terms of a report by a clinical psychologist who had examined the accused).    [Back]

Note 253   See 1995 Act, s 61(6) referring to orders under sections 52M(2)(a), 53(2)(a), 54(1)(c), 57A(2)(a), 58(1A)(a), 59A(2)(a) and 60C(2)(a) of the 1995 Act.    [Back]

Note 254   Criminal Procedure (Scotland) Act 1975, s 174(1); Mental Health (Scotland) Act 1960, s 63(1); Lunacy (Scotland) Act 1857, s 87.    [Back]

Note 255   Sir Gerald Gordon has speculated that the reference to evidence of medical practitioners in section 54(1) may have resulted from a drafting error: see commentary on Stewart v HM Advocate 1997 SCCR at 339.    [Back]

Note 256   1995 Act, s 79 as read with ss 71 and 72.    [Back]

Note 257   1995 Act, s 144.    [Back]

Note 258   Article 7(1).    [Back]

Note 259   Kokkinakis v Greece (1993) 17 EHRR 397; G v France (1995) 21 EHRR 288.    [Back]

Note 260   Section 16 was repealed by the Statute Law (Repeals) Act 1977, as being a spent provision.    [Back]

Note 261   Renton & Brown, para 12-04; Hamilton v H M Advocate 1996 SCCR 744.    [Back]

Note 262   An accused who is brought before a court from custody is given a copy of the complaint beforehand (A N Brown, Criminal evidence and procedure: an introduction (1996), p 95). In non-custody cases proceedings commence when the citation and service copy complaint are posted to the accused (Renton & Brown, Criminal Procedure Legislation, para A4-291).    [Back]

Note 263   1995 Act, s 54(1) provides that where the court makes a finding that an accused is insane in bar of trial it must make further orders, including discharging the trial diet, ordering an examination of facts, remanding the accused in custody or on bail, or, where appropriate, making a temporary compulsion order.    [Back]

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