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Mental Illness and Criminal Liability ALEC SAMUELS Department of Law. University of Southampton
English criminal law liability is based upon the concept of moral responsibility or culpability. Any proposal to depart from that concept is seen as a threat to traditional values. If lightly accepted, an allegation or assertion of mental illness could prove too easy an escape from liability for the defend ant. Whereas the advocate is concerned to do the best he can for the client, and the doctor is concerned to do the best he can for the patient or to produce the best medical or clinical diagnosis of the person being exam ined, the judge is charged with the duty of protecting the public. T o depart from the concept of moral responsibility and as a corollary to reduce or to eliminate the power of the judge to impose a prison sentence, or at the very least a custodial order, would be seen by him and the public as a threat to the safety of the public. A fundamental constitutional safeguard of the nation lies in the principle of collective lay decision being vested in the jury for serious cases or the magistracy for less serious cases. The expert is placed in the salutary position of having to explain his expertise in simple intelligible language, and the danger of decision by an arrogant publicly un accountable expert is avoided. The corollary though is that the jury may be faced with the responsibility of choosing one of two or more conflicting opinions put forward by the experts. In psychiatry and mental illness generally, as in other disciplines, there is still a good deal to be learned by the experts.
DIMINISHED RESPONSIBILITY In homicide cases diminished responsibility has almost entirely replaced the old common
law defence of insanity (now in practice pleaded in only about five cases a year). Insanity carried a stigma, its diagnosis was hopelessly unscientific, and led to indefinite detention in Broadmoor. However, although before 1965 the verdict of manslaughter by reason of diminished responsibility avoided any possibility of capital punishment, since 1965 the mandatory life sentence for murder has in practice often turned out to be com paratively lenient, e.g., release (albeit on licence) after not too long a period of years, whereas the sentence for manslaughter by reason of diminished responsibility has often turned out to be a long fixed term of years. Diminished responsibility arises when the defendant is: . . . suffering from such a b n o r m a l i t y of m i n d ( w h e t h e r arising from a condition of a r r e s t e d or r e t a r d e d d e v e l o p m e n t of m i n d or a n y i n h e r e n t causes or i n d u c e d b y disease or injury) as substantially i m p a i r e d his m e n t a l responsibility for his acts o r omissions in d o i n g o r b e i n g a p a r t y to t h e killing.
The notion of impaired responsibility, substantially impaired responsibility, is diffi cult to grasp. Can there be degrees of responsibility? How is it possible to assess the degree of responsibility attaching to a mentally ill defendant ? Is it possible to be, as it is crudely expressed, 'half mad and half bad'? Many argue that a defendant is, or must be taken to be, either mentally sound and fully responsible, when special circum stances should be taken into account in sentence, or mentally ill and exonerated from responsibility, though if necessary subject to civil process in his own protection and that of the public. The problem of control frequently arises. Suppose a defendant suffered from an
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irresistible impulse; he was unable to control himself. That would appear undoubtedly to constitute diminished responsibility. The difficulty arises where he appreciated the moral culpability of his act and where he could have controlled himself but did not, although undoubtedly he was subjected to very considerable stress or pressure of one kind or another and undoubtedly had greater difficulty in exercising control than is experienced by the ordinary, average, nor mal person. But the dichotomy of'could not' and 'did not' exercise control or resist the impulse, the irresistible and the unresisted, is incapable of being proved scientifically and is not theoretically acknowledged by the law. Lord Parker said (Ä. v. Byrne [1960] 2 Q..B. 396): Inability to exercise will-power to control physical acts, p r o v i d e d t h a t it is d u e to a b n o r m a l i t y of m i n d from o n e of t h e causes specified . . . is . . . sufficient to entitle t h e accused to t h e benefit of t h e [ d e f e n c e ] ; difficulty in controlling his physical acts d e p e n d i n g o n t h e d e g r e e of difficulty m a y b e . I t is for t h e j u r y to d e c i d e on t h e w h o l e of t h e evidence w h e t h e r such inability or difficulty has, not as a m a t t e r of scientific certainty b u t o n the b a l a n c e of probabilities, b e e n established, a n d in t h e case of difficulty w h e t h e r t h e difficulty is so great as to a m o u n t in their view t o a substantial i m p a i r m e n t of t h e accused's m e n t a l responsibility for his acts.
In practice a failure to exercise control that, albeit with considerable difficulty, a defendant could have exercised will make it very hard to establish diminished responsi bility. Judges strive to prevent what might be described as character defects from masquer ading as evidence of diminished responsi bility, e.g., bad temper, jealousy, hatred, rage, drunkenness, drug taking, low intelli gence, poor judgment, racial characteristic, political fanaticism and similar unfavourable personal failings. The 'would not or could not' syndrome arises in consideration of the psychopath. A psychopath may be loosely described as an aggressive, antisocial, insensitive and in different person, unable to make satisfactory personal relationships, given to violence or sex offences, who appears to be constitution ally incapable of responding to treatment to
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induce a minimum level of social conformity, and who is immune to the social learning and conditioning to which all ordinary people respond. Psychopathy in itself is probably in sufficient for pleading diminished responsi bility ,cf.. Lord Denning {AGNI v. Gallagher [1963] A.C. 349). It is not in itself seen as mental illness. A combination with other factors is necessary, such as a bad mental history, or persistent severe pressure, or personality defects coupled with high sensi tivity because of racial colour {R. v. Campbell (1957)). A defendant is often described in the fol lowing ways: emotionally immature; subject to despair or abnormal despair; depressed, or subject to reactive depression; suffering from severe or chronic anxiety; mentally unstable. The mercy killing, and the killing of the scornful, taunting, rejecting mistress, and the killing in circumstances of sexual perversion, are the sorts of cases in which such terminology is used. In practice diminished responsibility is unlikely to be established in such situations unless a psychiatrist or neurologist can give evidence of a diagnosable medical or patho logical condition, for example, neurotic or paranoic, or psychotic, i.e., suffering from confusion, illusions, delusions or hallucina tions, and lacking insight. Paradoxically, or perhaps on reflection not so paradoxically, if a defendant just kills a victim for what appears to be a very ordinary motive such as greed or jealousy, diminished responsibility stands little chance of being established, but if the defendant has a history of mental trouble, goes in for perverted sexual practices with the victim before and after death, mutilates the body, cuts it up, sends it through the post, sends cruel post cards to the relatives, mutilates himself, swallows razor blades, inserts nails into his urethra, endeavours to commit suicide, and any other horrible features that one can imagine, then the more horrible the killing the more likely diminished responsibility will be established, because the further removed from normal behaviour the behaviour of the defendant the more he appears to be
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mentally ill, or so the submission runs. The jury, however, may tend to reject the defence and to go for murder, in view of the horrible nature of the circumstances, though the trial judge will endeavour to prevent this and the Court of Appeal will quash a murder verdict if the jury does not listen to the trial judge {R. V. Byrne [1960] 2 Q..B. 396; R. v. Matheson [1958] 1 W.L.R. 474),
PROVOCATION Provocation is not strictly a matter of mental illness, because it presupposes a normal healthy person, but an allegedly provoked defendant often has an element of mental instability in his make-up, almost ex hypothesi, and the borderline between provocation and diminished responsibility may be difficult to distinguish. The problems with provocation are that a defendant is to be judged by the standard of the reasonable man and the response or retaliation must be proportionate to the provocation received. The reasonable man test is incompatible with the normal sub jective approach in the criminal law for determining liability and is morally un acceptable. The test is based upon an unreal hypothetical non-existent person and dis regards human afflictions. Every man has his breaking point. T o be accused of being impotent, or sexually incompetent, or promis cuous, or an adulterer, or black, or Jewish, or a communist, or a fascist, or a socialist or anything, may or may not be such as to induce anyone to lose his self-control: it all depends upon his own personal idiosyncracies, sensitivities, history and situation. T o apply a single universal objective criterion is a misapplication of the concept of equality. The proportionate response rule is also unacceptable. If a defendant does genuinely lose control then ex hypothesi he may well act out of character, irrationally, or dispropor tionately. It is submitted that the approach should be subjective. The individual threshold should be diagnosed, in order to ascertain the existence of any genuine personal sensitivity, and the question then to be asked should be, 'Did the defendant fail to exercise the control
properly to be expected of him, in which case he is guilty; or did he find himself pushed beyond his threshold, in which case his act is excusable, e.g., manslaughter?' Given an excusable loss of control, the nature of the response should be irrevelant. Thus personal sensitivity should be neither a privilege nor a handicap. Each man would be judged according to the personal standard properly to be expected of him having regard to his capacity.
DRINK AND DRUGS Judges have strongly resisted drunkenness and the effect of drugs as a defence in criminal law. A defendant may be a fit and healthy person. He voluntarily takes alcohol. He thereby poisons the blood and adversely affects the brain, and his normal inhibitions or restraints are diminished or eliminated. His perception, judgment and self-control are impaired (Lord Denning (AGNI v. Gallagher [1963] A.C. 386)). Or he takes drugs, suffers hallucinations, goes on 'a trip', and loses consciousness. In such a drunken or drugged condition he assaults and kills his mistress, or rapes a child {D.P.P. v. Beard [1920] A.C. 479), or commits an assault (Ä. v. Burns (1974) 58 Cr. App. R. 364), or a burglary, or steals from a shop {Bolton v. Crawley [1972] Grim. L. Rev. 222), or takes a motor vehicle without authority (R. v. McPherson [1973] R.T.R. 157 C.A.), things which he would never do whilst sober. Self-induced intoxication resulting from drink or drugs or both is no defence to manslaughter however great the degree of intoxication {R. v, Howell [1974] 2 All E,R, 806). Judges have tried several unsatisfactory approaches. They have said that the effect of alcohol may prevent a defendant from form ing a specific criminal intent but not from forming a general criminal intent so that a conviction may be recorded. This distinction is utterly artificial and meaningless: either the criminal intent necessary for the offence in question is proved or it is not. Then they have said that taking drugs is unlawful and therefore causing death on a drug trip is manslaughter. On an LSD hallucinatory drug trip a defendant imagined he was
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fighting snakes in a snake pit. In fact, he was stuffing a sheet into the throat of his mistress (Ä. V. Lipman [1969] 3 All E.R. 410 C.A.). Naturally, if a defendant commits an ordin ary criminal act, ostensibly one requiring some awareness or alertness or skill, and apparently for an ordinary criminal motive, then recourse to the defence of absence of criminal intent may not sound very plausible. But it is submitted that if the facts are accepted as genuine, or not sufficiently dis proved by the prosecution, then the defend ant ought to be acquitted. A 15-year-old boy, took Valium and whisky. He fired a gun through a window, mortally wounding the victim. The judge refused automatically to accept a manslaughter result. The issue for the jury was whether in his situation the defendant appreciated the risk of injury to the victim [R. V. Haywood [1971] V.R. 755). What is needed is a new offence of voluntarily getting drunk and causing injury or damage, or voluntarily getting drugged and causing injury or damage, i.e., aiming for the irresponsible conduct in getting into the undesirable condition, not the unfortunate consequence of having got into that condi tion. If a defendant knows of the risk of injury, as for example of the result of a previous incident, or a warning, then on any recurrence manslaughter would be appro priate because in that case ex hypothesi he was, or should have been, aware of the risk. Similarly, if, intending to kill the victim, he takes alcohol in order to give himself Dutch courage, and does kill, then he should bear the full consequences [AGNI v. Gallagher [1963] A.C. 349). Naturally, involuntary drunken ness or druggedness can impose no responsi bility. When it appears that at the material time the defendant was under the influence of drink, the jury should be directed to draw such inferences as are proper on the question whether he had the necessary intent {R. v. Sheehan, The Times 8 March 1975 C.A.).
INSANITY OR AUTOMATISM Diminished responsibility is limited to homi cide, which in principle is illogical as there is no reason why the defence, if sound, should
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not be extended throughout the criminal law. The historical justification for the introduc tion of the defence, i.e., to escape either the death penalty or the indefinite special hospital (Broadmoor) order as a consequence of a finding of insanity, no longer applies. However, the law at present is left in non fatal cases with either insanity, i.e., a defendant did not know the nature and quality of his act or that it was wrong, or [non-insane] automatism, e.g., unconscious, consciousness impaired, unaware of himself, non-sentient level of physical functioning, normal intelligence and critical faculties not functioning, virtually delirious, i.e., no criminal intent established. The consequence of such verdicts is profoundly unsatisfactory. As a consequence of insanity the verdict is not guilty, technically, but the order is indefinite detention in Broadmoor, a formid able and daunting prospect. As a consequence of automatism, a defendant is acquitted and goes free, free to inflict further injury or damage upon the innocent public. A male nurse suffered from diabetes. He was receiving medical attention. One day he had a light breakfast, he was very active and busy with work, he had no lunch, and he drank a good deal of alcohol. He attacked an elderly patient. He was suffering at that point of time from hypoglyceamia, an excess of insulin in the bloodstream and a deficiency of sugar in the body to cope with the excess. A lump of sugar would have restored the normal balance (Ä. v. Quick [1975] Q,.B. 910 C.A.). In the case of pre-existing alcoholic brain damage, alcohol and Mandrax taken to gether, assault, evidence that the defendant was unaware of himself, a plea of insanity is rightly put to the jury {R. v. Burns (1974) 58 Cr. App. R. 364). But if there is evidence that a defendant's mental unawareness may have arisen from another source, not the pre-existing brain damage or disease of the mind, e.g., from alcohol and Mandrax in combination, the defendant being unaware of the possible effects, then automatism should be put to the jury (R. v. Burns (1974) 58 Cr. App. R. 364). Where there is a malfunctioning of the
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mind caused by disease, then insanity is the proper finding, e.g., epilepsy {AGNI v. Bratty [1963] A.C. 386), imbecility, brain damage, cerebral tumour {R. v. Charlson [1955] 1 W.L.R. 317), arteriosclerosis, albeit arising ft"om a physical condition {R. v. Kemp [1957] 1 Ο,.Β. 399). Where there is a transitory condition caused by external factors leading a normal healthy person to cause injury, without any subjective criminal intent, then automatism is the proper finding, e.g., hypnotism, sleep walking, violence resulting from concussion suffered in a blow, an accidental and temporary loss of conscious ness, behaviour under or coming round from an anaesthetic, drink or drugs. Taunts from a fiancee causing a state of dissociation and loss of consciousness might constitute automat ism. Hospital treatment is quite unnecessary in such cases. The position of the diabetic is not entirely clear. Is he suffering from disease, though he is all right so long as he takes his insulin and follows his medical advice, so that he is insane if something goes wrong, or is he not suffering from disease, a perfectly fit and healthy person so long as he takes his insulin and follows his medical advice, so that he is a case automatism if something goes wrong ? The very depressed and absent-minded 'shoplifter' ought to be acquitted on the ordinary principle of absence of proof of criminal intent without resort to questions of mental illness. Judges do not need to restrict the ambit of insanity, because a defendant is usually exceedingly reluctant to resort to it anyway, because of its unpleasant consequences. However, the ambit of automatism does need to be watched, because if it succeeds the defendant is acquitted. Judges have therefore tended to say that negligence in allowing the state of automatism to arise will destroy the defence. For example: (1) A defendant is a diabetic, knows that he must eat regularly, not take alcohol, not over-exert himself and he must carry sugar with him. He does none of these things. Indeed, he may have had a hypoglaecemic attack previously. (2) A defendant falls asleep at the wheel. His dangerous driving arose when he was still
awake, felt the onset of sleep, but continued to drive. (3) A defendant is a sleepwalker, and a dangerous sleepwalker. H e knows this. Nonetheless he does not lock his door and warn the other occupants of the house not to share a room with him and to lock their own doors. (4) A defendant is a drug addict. H e knows that on 'a trip' he is likely to cause the death of another person. He does not take any precautions. This judicial approach is understandable but it is submitted that it is unsound. If a defendant did not have the requisite criminal intent at the time then he is entitled to be acquitted, and negligence before the event, however reprehensible, ought not to deprive him of the right to acquittal, by a sort of punitive estoppel. The proper approach, it is submitted, would be the creation of specific offences of voluntarily, deliberately and intentionally getting oneself into a dangerous condition, e.g., excessive drinking, or drug taking, or going on driving at the anticipated onset of sleep, or sleeping in an unprotected environment, in the knowledge that the situation thereby created is potentially one of danger to others. In that way the culpable act of a defendant could be identified and appropriately dealt with, without infringing any fundamental tenet of justice and the criminal law. Arid arguments about fitness to plead should be abolished. The defendant should always be entitled to deny the commission of the act in question, and to have that issue tried in the ordinary way. Otherwise the defendant should be tried, whether or not he is suffering from retrograde amnesia, and whether or not he can instruct a lawyer, but if he is not privately legally represented the Official Solicitor should act on his behalf and in his best interests. The distinction between iitsanity and automatism has led to a lot of practical difficulties. The nomenclature may confiise. The burden of proof is quite different,'calling for a quite different direction by the judge to the jury. The defence must prove insanity, on the balance of probabilities. The prosecution, if the defence raises automatism, must satisfy the jury beyond all reasonable doubt that at
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the material time the defendant was in fact acting consciously and voluntarily (Ä. v. Burns (1972) 58 Cr. App. R. 364). Where there is any evidence at all which would justify either one or the other verdict the judge should carefully direct the jury on both, and in particular he should emphasize the distinctions. Classification of legal defences into insanity and automatism might not seem to be a very meaningful or modern approach in modern times. It is submitted that a more suitable approach would be that a defendant is incapable by reason of mental illness of forming the necessary criminal intent, and accordingly not guilty, but susceptible to a civil hospital or other appro priate order in the interests of patient and public. The prosecution should satisfy the jury beyond all reasonable doubt that the defendant at the material time was in fact acting consciously and voluntarily.
REFORM What then should be the poficy to be followed ? If diminished responsibility is to be retained it should be made of general application, but it is submitted that the defence represents an illogical and comprom ising approach, divorced from reality, and should be abolished altogether. A doctor should never be asked to speak on matters of responsibility: these are matters for the judge. A doctor should confine himself to diagnosis, prognosis and treatment. The diagnosis of insanity, hopelessly unscientific, laden with history, inextricably bound up with capital punishment, should be totally abolished. The plea of automatism is sound in principle and should be retained, though a more suitable expression or description is necessary. A doctor rightly dislikes talk of 'non-insane automatism'. It is neither neces sary nor desirable for the concept of responsi bility to wither away. However, it is necessary and desirable clearly to identify responsible persons, who must carry the responsibility, as opposed to mentally ill persons, who must be treated as patients and must not carry responsibility. If the prosecution proves the act, but fails to prove the requisite criminal intention, because of mental illness, of which
evidence must be adduced by a defendant, then no moral stigma can possibly attach to the defendant and he is entitled to be acquitted. A conviction and a penal disposal would be totally unjust, but if the court is satisfied on the evidence that the defendant represents a risk or danger to the public, having regard to his proclivity to violence and his inadequate self-control, and is susceptible to medical treatment, then by civil judicial process the defendant should be committed to hospital, or a secure hospital, or other appro priate institution, or into the non-custodial care of an appropriate institution or person, for a fixed term or for an unfixed term, subject always to frequent periodical review. A n acquittal, without further action, could be socially irresponsible. Similarly, if at the point of discharge from prison at the end of a fixed term of imprisonment, the defendant were judged by reason of mental illness to represent a danger to the public it should be possible by civil judicial process to take prompt action for compulsory detention, subject to proper safeguards and subject to frequent periodical review. This policy naturally presupposes the availability of sufficient places in appropriate institutions. At present the prisons have great difficulty in providing treatment for the mentally ill. Yet prisoners are rarely trans ferred from prison to hospital because a hospital able and willing to take them cannot be found. Broadmoor is old fashioned and seriously overcrowded; the Butler Committee (1974) was astonished and shocked by what it saw. Grendon Underwood, a secure hospital, is an admirable institution, but it can take only a limited number of patients and, in any event, it selects its patients and invariably selects the mild cases which hold out a reasonable prospect of co-operation and successful treatment. As the Butler Committee so rightly recommended, regional secure hospital units are essential and must be provided, urgently, from special govern ment funds, an initial target of 2000 [sic) places, situated so far as possible in the centres of population and closely accessible to other medical, especially diagnostic, facilities.
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BIBLIOGRAPHY B l o m - C o o p e r L . a n d M o r r i s T . (1964) Calendar of Murder. L o n d o n , J o s e p h . Butler C o m m i t t e e o n M e n t a l l y A b n o r m a l Offenders (1974) Interim Report. C m n d 5698. L o n d o n , H M S O . C i b a (1968) The Mentally Abnormal Offender. L o n d o n , Churchill. Craft Μ . J . (1974) A description of a n e w c o m m u n i t y forensic service for doctors. Med. Sei. Low 14, 2 6 8 272. C r i m i n a l C o d e Reform Act (1973) U S A . C r i m i n a l L a w Revision C o m m i t t e e (1973) Penalty for Murder. C m n d 5184. L o n d o n , H M S O . C r i m i n a l Statistics ( a n n u a l ) , L o n d o n , H M S O . Emslie L o r d (1973) Penalties for Homicide ( S c o t l a n d ) . London, H M S O . Eysenck H . J . (1964) Crime and Personality. L o n d o n , Routledge & Kegan Paul. Fox R . (1964) Sin, c r i m e a n d t h e p s y c h o p a t h . Mod. Law Rev. 27, 1 9 0 - 1 9 8 . H a l l c c k S e y m o u r (1971) Psychiatry and the Dilemma of Crime: A Study of Causes, Punishment and Treatment, University of C h i c a g o . Hill V. Baxter [1958] I Q..B. 277. H o g a n M i c h a e l [1974] T h e killing g r o u n d , 19641974. Crim. Law Rev. 3 8 7 - 3 9 6 . J a c o b s F- G . (1971) Criminal Responsibility. L o n d o n , W e i d e n l e l d & Nicholson. L a n h a m D , [1974] Arresting t h e I n s a n e . Crim. Law Rev. 5 1 5 - 5 2 2 . L e o n a r d J . (1972) D r i n k , d r u g s a n d a u t o m a t i s m . Med. Leg. J. 4 0 , 5 3 - 6 3 . N e u s t a t t e r L i n d e s a y (1973) R e v i e w of Crime and Insanity. Med. Leg. J. 4 1 , 7 8 - 7 9 .
O ' C o n n o r D . (1975) T h e v o l u n t a r y a c t . Med. Sei. Law 15, 3 1 - 3 6 O ' H a n l o n R . J . (1968) N o t guilty because of insanity. Ir. Jurist. 3 , 6 1 - 7 7 . O r c h a r d G. F . [1970] D r u n k e n n e s s , d r u g s a n d m a n s l a u g h t e r . Crim. Law Rev. 132, 2 1 1 - 2 1 8 . P a c k e r H . (1964) The Limits of the Criminal Sanction. California, Stanford U n i v e r s i t y Press. R . V. B a t h h u r s t [1968] 1 All E . R . 1175. R . V. G o m e z (1964) 44 C r . A p p . R . 310. R . V. H a y w o o d [1971] V . R . 7 5 5 . R . V. L l o y d [1966] 2 W . L . R , 13. R . V. Simcox [1964] C r i m . L . R . 402. R . V. T e r r y [1961] 2 Q,.B. 314. R o l l i n H . (1969) Mentally Abnormal Offender and the Criminal Law. Oxford, P e r g a m o n . S a m u e l s Alec (1971) E x c u s a b l e loss of self-control in h o m i c i d e . Mod. Law Rev. 3 4 , 1 6 3 - 1 7 1 . S m i t h J . C . [1975] D r i n k a n d d r u g s . Crim. Law Rev. 157. Sparkes R i c h a r d (1964) D i m i n i s h e d responsibility in theory a n d p r a c t i c e . Mod. Law Rev. 2 7 , 9 - 3 4 . T e m k i n J u n e (1974) A u t o m a t i s m a n d p r o p e r p r e c a u t i o n s . Mod. Law Rev. 37, 199-202. W a l k e r N . (1970) Crime and Punishment in Britain. 2nd ed. Edinburgh, W . Green. W a l k e r N . a n d M c C a b e S. (1973) Crime and Insanity. vol. 2 . E d i n b u r g h University Press, p . 2 1 5 . W h i t e l y J . S. (1967) C o n c e p t s of p s y c h o p a t h y a n d its t r e a t m e n t . Med. Ug.J. 35, 154-163. W i l l i a m s G l a n v i l l e (1961) The Criminal Law: The General Part. 2 n d e d . L o n d o n , Stevens. W o o t t o n B a r b a r a (1960) D i m i n i s h e d responsibility; a l a y m a n ' s view. Law Quart. Rev. 7 6 , 2 2 4 ,
M e d . Sei. Law ( 1 9 7 6 ) VoL 16, No. 3
Mental Illness and Criminal Liability ALEC SAMUELS Department of Law. University of Southampton
English criminal law liability is based upon the concept of moral responsibility or culpability. Any proposal to depart from that concept is seen as a threat to traditional values. If lightly accepted, an allegation or assertion of mental illness could prove too easy an escape from liability for the defend ant. Whereas the advocate is concerned to do the best he can for the client, and the doctor is concerned to do the best he can for the patient or to produce the best medical or clinical diagnosis of the person being exam ined, the judge is charged with the duty of protecting the public. T o depart from the concept of moral responsibility and as a corollary to reduce or to eliminate the power of the judge to impose a prison sentence, or at the very least a custodial order, would be seen by him and the public as a threat to the safety of the public. A fundamental constitutional safeguard of the nation lies in the principle of collective lay decision being vested in the jury for serious cases or the magistracy for less serious cases. The expert is placed in the salutary position of having to explain his expertise in simple intelligible language, and the danger of decision by an arrogant publicly un accountable expert is avoided. The corollary though is that the jury may be faced with the responsibility of choosing one of two or more conflicting opinions put forward by the experts. In psychiatry and mental illness generally, as in other disciplines, there is still a good deal to be learned by the experts.
DIMINISHED RESPONSIBILITY In homicide cases diminished responsibility has almost entirely replaced the old common
law defence of insanity (now in practice pleaded in only about five cases a year). Insanity carried a stigma, its diagnosis was hopelessly unscientific, and led to indefinite detention in Broadmoor. However, although before 1965 the verdict of manslaughter by reason of diminished responsibility avoided any possibility of capital punishment, since 1965 the mandatory life sentence for murder has in practice often turned out to be com paratively lenient, e.g., release (albeit on licence) after not too long a period of years, whereas the sentence for manslaughter by reason of diminished responsibility has often turned out to be a long fixed term of years. Diminished responsibility arises when the defendant is: . . . suffering from such a b n o r m a l i t y of m i n d ( w h e t h e r arising from a condition of a r r e s t e d or r e t a r d e d d e v e l o p m e n t of m i n d or a n y i n h e r e n t causes or i n d u c e d b y disease or injury) as substantially i m p a i r e d his m e n t a l responsibility for his acts o r omissions in d o i n g o r b e i n g a p a r t y to t h e killing.
The notion of impaired responsibility, substantially impaired responsibility, is diffi cult to grasp. Can there be degrees of responsibility? How is it possible to assess the degree of responsibility attaching to a mentally ill defendant ? Is it possible to be, as it is crudely expressed, 'half mad and half bad'? Many argue that a defendant is, or must be taken to be, either mentally sound and fully responsible, when special circum stances should be taken into account in sentence, or mentally ill and exonerated from responsibility, though if necessary subject to civil process in his own protection and that of the public. The problem of control frequently arises. Suppose a defendant suffered from an
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irresistible impulse; he was unable to control himself. That would appear undoubtedly to constitute diminished responsibility. The difficulty arises where he appreciated the moral culpability of his act and where he could have controlled himself but did not, although undoubtedly he was subjected to very considerable stress or pressure of one kind or another and undoubtedly had greater difficulty in exercising control than is experienced by the ordinary, average, nor mal person. But the dichotomy of'could not' and 'did not' exercise control or resist the impulse, the irresistible and the unresisted, is incapable of being proved scientifically and is not theoretically acknowledged by the law. Lord Parker said (Ä. v. Byrne [1960] 2 Q..B. 396): Inability to exercise will-power to control physical acts, p r o v i d e d t h a t it is d u e to a b n o r m a l i t y of m i n d from o n e of t h e causes specified . . . is . . . sufficient to entitle t h e accused to t h e benefit of t h e [ d e f e n c e ] ; difficulty in controlling his physical acts d e p e n d i n g o n t h e d e g r e e of difficulty m a y b e . I t is for t h e j u r y to d e c i d e on t h e w h o l e of t h e evidence w h e t h e r such inability or difficulty has, not as a m a t t e r of scientific certainty b u t o n the b a l a n c e of probabilities, b e e n established, a n d in t h e case of difficulty w h e t h e r t h e difficulty is so great as to a m o u n t in their view t o a substantial i m p a i r m e n t of t h e accused's m e n t a l responsibility for his acts.
In practice a failure to exercise control that, albeit with considerable difficulty, a defendant could have exercised will make it very hard to establish diminished responsi bility. Judges strive to prevent what might be described as character defects from masquer ading as evidence of diminished responsi bility, e.g., bad temper, jealousy, hatred, rage, drunkenness, drug taking, low intelli gence, poor judgment, racial characteristic, political fanaticism and similar unfavourable personal failings. The 'would not or could not' syndrome arises in consideration of the psychopath. A psychopath may be loosely described as an aggressive, antisocial, insensitive and in different person, unable to make satisfactory personal relationships, given to violence or sex offences, who appears to be constitution ally incapable of responding to treatment to
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induce a minimum level of social conformity, and who is immune to the social learning and conditioning to which all ordinary people respond. Psychopathy in itself is probably in sufficient for pleading diminished responsi bility ,cf.. Lord Denning {AGNI v. Gallagher [1963] A.C. 349). It is not in itself seen as mental illness. A combination with other factors is necessary, such as a bad mental history, or persistent severe pressure, or personality defects coupled with high sensi tivity because of racial colour {R. v. Campbell (1957)). A defendant is often described in the fol lowing ways: emotionally immature; subject to despair or abnormal despair; depressed, or subject to reactive depression; suffering from severe or chronic anxiety; mentally unstable. The mercy killing, and the killing of the scornful, taunting, rejecting mistress, and the killing in circumstances of sexual perversion, are the sorts of cases in which such terminology is used. In practice diminished responsibility is unlikely to be established in such situations unless a psychiatrist or neurologist can give evidence of a diagnosable medical or patho logical condition, for example, neurotic or paranoic, or psychotic, i.e., suffering from confusion, illusions, delusions or hallucina tions, and lacking insight. Paradoxically, or perhaps on reflection not so paradoxically, if a defendant just kills a victim for what appears to be a very ordinary motive such as greed or jealousy, diminished responsibility stands little chance of being established, but if the defendant has a history of mental trouble, goes in for perverted sexual practices with the victim before and after death, mutilates the body, cuts it up, sends it through the post, sends cruel post cards to the relatives, mutilates himself, swallows razor blades, inserts nails into his urethra, endeavours to commit suicide, and any other horrible features that one can imagine, then the more horrible the killing the more likely diminished responsibility will be established, because the further removed from normal behaviour the behaviour of the defendant the more he appears to be
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mentally ill, or so the submission runs. The jury, however, may tend to reject the defence and to go for murder, in view of the horrible nature of the circumstances, though the trial judge will endeavour to prevent this and the Court of Appeal will quash a murder verdict if the jury does not listen to the trial judge {R. V. Byrne [1960] 2 Q..B. 396; R. v. Matheson [1958] 1 W.L.R. 474),
PROVOCATION Provocation is not strictly a matter of mental illness, because it presupposes a normal healthy person, but an allegedly provoked defendant often has an element of mental instability in his make-up, almost ex hypothesi, and the borderline between provocation and diminished responsibility may be difficult to distinguish. The problems with provocation are that a defendant is to be judged by the standard of the reasonable man and the response or retaliation must be proportionate to the provocation received. The reasonable man test is incompatible with the normal sub jective approach in the criminal law for determining liability and is morally un acceptable. The test is based upon an unreal hypothetical non-existent person and dis regards human afflictions. Every man has his breaking point. T o be accused of being impotent, or sexually incompetent, or promis cuous, or an adulterer, or black, or Jewish, or a communist, or a fascist, or a socialist or anything, may or may not be such as to induce anyone to lose his self-control: it all depends upon his own personal idiosyncracies, sensitivities, history and situation. T o apply a single universal objective criterion is a misapplication of the concept of equality. The proportionate response rule is also unacceptable. If a defendant does genuinely lose control then ex hypothesi he may well act out of character, irrationally, or dispropor tionately. It is submitted that the approach should be subjective. The individual threshold should be diagnosed, in order to ascertain the existence of any genuine personal sensitivity, and the question then to be asked should be, 'Did the defendant fail to exercise the control
properly to be expected of him, in which case he is guilty; or did he find himself pushed beyond his threshold, in which case his act is excusable, e.g., manslaughter?' Given an excusable loss of control, the nature of the response should be irrevelant. Thus personal sensitivity should be neither a privilege nor a handicap. Each man would be judged according to the personal standard properly to be expected of him having regard to his capacity.
DRINK AND DRUGS Judges have strongly resisted drunkenness and the effect of drugs as a defence in criminal law. A defendant may be a fit and healthy person. He voluntarily takes alcohol. He thereby poisons the blood and adversely affects the brain, and his normal inhibitions or restraints are diminished or eliminated. His perception, judgment and self-control are impaired (Lord Denning (AGNI v. Gallagher [1963] A.C. 386)). Or he takes drugs, suffers hallucinations, goes on 'a trip', and loses consciousness. In such a drunken or drugged condition he assaults and kills his mistress, or rapes a child {D.P.P. v. Beard [1920] A.C. 479), or commits an assault (Ä. v. Burns (1974) 58 Cr. App. R. 364), or a burglary, or steals from a shop {Bolton v. Crawley [1972] Grim. L. Rev. 222), or takes a motor vehicle without authority (R. v. McPherson [1973] R.T.R. 157 C.A.), things which he would never do whilst sober. Self-induced intoxication resulting from drink or drugs or both is no defence to manslaughter however great the degree of intoxication {R. v, Howell [1974] 2 All E,R, 806). Judges have tried several unsatisfactory approaches. They have said that the effect of alcohol may prevent a defendant from form ing a specific criminal intent but not from forming a general criminal intent so that a conviction may be recorded. This distinction is utterly artificial and meaningless: either the criminal intent necessary for the offence in question is proved or it is not. Then they have said that taking drugs is unlawful and therefore causing death on a drug trip is manslaughter. On an LSD hallucinatory drug trip a defendant imagined he was
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fighting snakes in a snake pit. In fact, he was stuffing a sheet into the throat of his mistress (Ä. V. Lipman [1969] 3 All E.R. 410 C.A.). Naturally, if a defendant commits an ordin ary criminal act, ostensibly one requiring some awareness or alertness or skill, and apparently for an ordinary criminal motive, then recourse to the defence of absence of criminal intent may not sound very plausible. But it is submitted that if the facts are accepted as genuine, or not sufficiently dis proved by the prosecution, then the defend ant ought to be acquitted. A 15-year-old boy, took Valium and whisky. He fired a gun through a window, mortally wounding the victim. The judge refused automatically to accept a manslaughter result. The issue for the jury was whether in his situation the defendant appreciated the risk of injury to the victim [R. V. Haywood [1971] V.R. 755). What is needed is a new offence of voluntarily getting drunk and causing injury or damage, or voluntarily getting drugged and causing injury or damage, i.e., aiming for the irresponsible conduct in getting into the undesirable condition, not the unfortunate consequence of having got into that condi tion. If a defendant knows of the risk of injury, as for example of the result of a previous incident, or a warning, then on any recurrence manslaughter would be appro priate because in that case ex hypothesi he was, or should have been, aware of the risk. Similarly, if, intending to kill the victim, he takes alcohol in order to give himself Dutch courage, and does kill, then he should bear the full consequences [AGNI v. Gallagher [1963] A.C. 349). Naturally, involuntary drunken ness or druggedness can impose no responsi bility. When it appears that at the material time the defendant was under the influence of drink, the jury should be directed to draw such inferences as are proper on the question whether he had the necessary intent {R. v. Sheehan, The Times 8 March 1975 C.A.).
INSANITY OR AUTOMATISM Diminished responsibility is limited to homi cide, which in principle is illogical as there is no reason why the defence, if sound, should
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not be extended throughout the criminal law. The historical justification for the introduc tion of the defence, i.e., to escape either the death penalty or the indefinite special hospital (Broadmoor) order as a consequence of a finding of insanity, no longer applies. However, the law at present is left in non fatal cases with either insanity, i.e., a defendant did not know the nature and quality of his act or that it was wrong, or [non-insane] automatism, e.g., unconscious, consciousness impaired, unaware of himself, non-sentient level of physical functioning, normal intelligence and critical faculties not functioning, virtually delirious, i.e., no criminal intent established. The consequence of such verdicts is profoundly unsatisfactory. As a consequence of insanity the verdict is not guilty, technically, but the order is indefinite detention in Broadmoor, a formid able and daunting prospect. As a consequence of automatism, a defendant is acquitted and goes free, free to inflict further injury or damage upon the innocent public. A male nurse suffered from diabetes. He was receiving medical attention. One day he had a light breakfast, he was very active and busy with work, he had no lunch, and he drank a good deal of alcohol. He attacked an elderly patient. He was suffering at that point of time from hypoglyceamia, an excess of insulin in the bloodstream and a deficiency of sugar in the body to cope with the excess. A lump of sugar would have restored the normal balance (Ä. v. Quick [1975] Q,.B. 910 C.A.). In the case of pre-existing alcoholic brain damage, alcohol and Mandrax taken to gether, assault, evidence that the defendant was unaware of himself, a plea of insanity is rightly put to the jury {R. v. Burns (1974) 58 Cr. App. R. 364). But if there is evidence that a defendant's mental unawareness may have arisen from another source, not the pre-existing brain damage or disease of the mind, e.g., from alcohol and Mandrax in combination, the defendant being unaware of the possible effects, then automatism should be put to the jury (R. v. Burns (1974) 58 Cr. App. R. 364). Where there is a malfunctioning of the
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mind caused by disease, then insanity is the proper finding, e.g., epilepsy {AGNI v. Bratty [1963] A.C. 386), imbecility, brain damage, cerebral tumour {R. v. Charlson [1955] 1 W.L.R. 317), arteriosclerosis, albeit arising ft"om a physical condition {R. v. Kemp [1957] 1 Ο,.Β. 399). Where there is a transitory condition caused by external factors leading a normal healthy person to cause injury, without any subjective criminal intent, then automatism is the proper finding, e.g., hypnotism, sleep walking, violence resulting from concussion suffered in a blow, an accidental and temporary loss of conscious ness, behaviour under or coming round from an anaesthetic, drink or drugs. Taunts from a fiancee causing a state of dissociation and loss of consciousness might constitute automat ism. Hospital treatment is quite unnecessary in such cases. The position of the diabetic is not entirely clear. Is he suffering from disease, though he is all right so long as he takes his insulin and follows his medical advice, so that he is insane if something goes wrong, or is he not suffering from disease, a perfectly fit and healthy person so long as he takes his insulin and follows his medical advice, so that he is a case automatism if something goes wrong ? The very depressed and absent-minded 'shoplifter' ought to be acquitted on the ordinary principle of absence of proof of criminal intent without resort to questions of mental illness. Judges do not need to restrict the ambit of insanity, because a defendant is usually exceedingly reluctant to resort to it anyway, because of its unpleasant consequences. However, the ambit of automatism does need to be watched, because if it succeeds the defendant is acquitted. Judges have therefore tended to say that negligence in allowing the state of automatism to arise will destroy the defence. For example: (1) A defendant is a diabetic, knows that he must eat regularly, not take alcohol, not over-exert himself and he must carry sugar with him. He does none of these things. Indeed, he may have had a hypoglaecemic attack previously. (2) A defendant falls asleep at the wheel. His dangerous driving arose when he was still
awake, felt the onset of sleep, but continued to drive. (3) A defendant is a sleepwalker, and a dangerous sleepwalker. H e knows this. Nonetheless he does not lock his door and warn the other occupants of the house not to share a room with him and to lock their own doors. (4) A defendant is a drug addict. H e knows that on 'a trip' he is likely to cause the death of another person. He does not take any precautions. This judicial approach is understandable but it is submitted that it is unsound. If a defendant did not have the requisite criminal intent at the time then he is entitled to be acquitted, and negligence before the event, however reprehensible, ought not to deprive him of the right to acquittal, by a sort of punitive estoppel. The proper approach, it is submitted, would be the creation of specific offences of voluntarily, deliberately and intentionally getting oneself into a dangerous condition, e.g., excessive drinking, or drug taking, or going on driving at the anticipated onset of sleep, or sleeping in an unprotected environment, in the knowledge that the situation thereby created is potentially one of danger to others. In that way the culpable act of a defendant could be identified and appropriately dealt with, without infringing any fundamental tenet of justice and the criminal law. Arid arguments about fitness to plead should be abolished. The defendant should always be entitled to deny the commission of the act in question, and to have that issue tried in the ordinary way. Otherwise the defendant should be tried, whether or not he is suffering from retrograde amnesia, and whether or not he can instruct a lawyer, but if he is not privately legally represented the Official Solicitor should act on his behalf and in his best interests. The distinction between iitsanity and automatism has led to a lot of practical difficulties. The nomenclature may confiise. The burden of proof is quite different,'calling for a quite different direction by the judge to the jury. The defence must prove insanity, on the balance of probabilities. The prosecution, if the defence raises automatism, must satisfy the jury beyond all reasonable doubt that at
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the material time the defendant was in fact acting consciously and voluntarily (Ä. v. Burns (1972) 58 Cr. App. R. 364). Where there is any evidence at all which would justify either one or the other verdict the judge should carefully direct the jury on both, and in particular he should emphasize the distinctions. Classification of legal defences into insanity and automatism might not seem to be a very meaningful or modern approach in modern times. It is submitted that a more suitable approach would be that a defendant is incapable by reason of mental illness of forming the necessary criminal intent, and accordingly not guilty, but susceptible to a civil hospital or other appro priate order in the interests of patient and public. The prosecution should satisfy the jury beyond all reasonable doubt that the defendant at the material time was in fact acting consciously and voluntarily.
REFORM What then should be the poficy to be followed ? If diminished responsibility is to be retained it should be made of general application, but it is submitted that the defence represents an illogical and comprom ising approach, divorced from reality, and should be abolished altogether. A doctor should never be asked to speak on matters of responsibility: these are matters for the judge. A doctor should confine himself to diagnosis, prognosis and treatment. The diagnosis of insanity, hopelessly unscientific, laden with history, inextricably bound up with capital punishment, should be totally abolished. The plea of automatism is sound in principle and should be retained, though a more suitable expression or description is necessary. A doctor rightly dislikes talk of 'non-insane automatism'. It is neither neces sary nor desirable for the concept of responsi bility to wither away. However, it is necessary and desirable clearly to identify responsible persons, who must carry the responsibility, as opposed to mentally ill persons, who must be treated as patients and must not carry responsibility. If the prosecution proves the act, but fails to prove the requisite criminal intention, because of mental illness, of which
evidence must be adduced by a defendant, then no moral stigma can possibly attach to the defendant and he is entitled to be acquitted. A conviction and a penal disposal would be totally unjust, but if the court is satisfied on the evidence that the defendant represents a risk or danger to the public, having regard to his proclivity to violence and his inadequate self-control, and is susceptible to medical treatment, then by civil judicial process the defendant should be committed to hospital, or a secure hospital, or other appro priate institution, or into the non-custodial care of an appropriate institution or person, for a fixed term or for an unfixed term, subject always to frequent periodical review. A n acquittal, without further action, could be socially irresponsible. Similarly, if at the point of discharge from prison at the end of a fixed term of imprisonment, the defendant were judged by reason of mental illness to represent a danger to the public it should be possible by civil judicial process to take prompt action for compulsory detention, subject to proper safeguards and subject to frequent periodical review. This policy naturally presupposes the availability of sufficient places in appropriate institutions. At present the prisons have great difficulty in providing treatment for the mentally ill. Yet prisoners are rarely trans ferred from prison to hospital because a hospital able and willing to take them cannot be found. Broadmoor is old fashioned and seriously overcrowded; the Butler Committee (1974) was astonished and shocked by what it saw. Grendon Underwood, a secure hospital, is an admirable institution, but it can take only a limited number of patients and, in any event, it selects its patients and invariably selects the mild cases which hold out a reasonable prospect of co-operation and successful treatment. As the Butler Committee so rightly recommended, regional secure hospital units are essential and must be provided, urgently, from special govern ment funds, an initial target of 2000 [sic) places, situated so far as possible in the centres of population and closely accessible to other medical, especially diagnostic, facilities.
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