Topic 6(2)

INSANITY
 Two Types of Insanity Claim

1. D claims he was insane at time he

committed the act - this is what we
are looking at

2. D claims he is insane at time of trial and

therefore is unfit to plead
 Why have a defence of insanity?

 Lack of rational capacity

 Lack of responsibility – no blameworthy state of

mind.

 To allow us to treat and rehabilitate – if possible.

 Insanity

 But it is a controversial defence – how do you

balance the need to protect the interests of the
mentally disordered and the wider interests of the
community
 Burden of Proof

 M’Naghten – presumption of sanity

 Burden on D to show on balance of

probabilities
 Pleading Insanity

S.1 Criminal Procedure (Insanity and

Unfitness to Plead) Act 1991

Special Verdict – Not Guilty by reason of

insanity

Used to result in mandatory and indefinite

commitment to a hospital no matter what crime
 Effect of a Successful Plea
Criminal (Insanity and Unfitness to
Plead) Act, 1991 – gave power, except in
murder cases to order:

 admission to a hospital,
 a guardianship order,
 a supervision and treatment order or
 an absolute discharge
 EFFECT OF A SUCCESSFUL PLEA

 Amended section 5 Criminal Procedure

(Insanity Act) by DVCVA 2004
court is only obliged to make a hospital order
with a restriction order on a charge of
murder if the conditions for making a
hospital order are met. If the conditions are
not met, the court has the option of making
one of the other orders.

Must have medical evidence that justifies

detention before making hospital order
 Test for Insanity

M’Naghten Rules
1. Disease of mind
2. Defect of Reason
3. Either:
a) Not know nature and quality
OR
b) Not know act is wrong
 Disease of Mind

 Legal question
 Bratty v AG for N.I.; Sullivan

 What is meant by mind?

 Kemp - arteriosclerosis
The law is not concerned with the brain but
with the mind, in the sense that ‘mind’ is
ordinarily used, the mental faculties of reason,
memory and understanding.
 Disease of Mind
Sullivan- epilepsy
Lord Diplock
‘Mind in the M’Nagthen rules is used in the ordinary sense of
the mental faculties of reason, memory and understanding.
If the effect of a disease is to impair these faculties so
severely so as to have either of the consequences referred to
in the latter part of the rules it is a disease of the mind and
it doesn’t matter whether the cause of the impairment is
organic, as in epilepsy, or functional or whether it is
permanent or transient.’
 Must the disease of Violence be prone to recur?

 Bratty v AG for Northern Ireland

Any mental disorder which has manifested itself in

violence and is prone to recur is a disease of the mind

 R v Burgess
No need for recuurence
 Internal/External Distinction

 Sullivan

 Burgess - sleepwalking

Internal cause = disease of mind

 Diabetics

Hypoglycaemia and Hyperglycaemia.

 Quick
A transitory malfunctioning of the mind caused by
hypoglycaemia was due to an external cause and could give
rise to a plea of automatism, whereas hyperglycaemia was
due to the disease itself and so resulted from an internal
cause and gave rise to a plea of insanity or insane
automatism.

 This distinction approved of in Bailey

 Hypoglycaemia and Hyperglycaemia

 Hennessy

Hyperglycaemia caused by high blood sugar levels

was an inherent defect that was a disease of the mind
within the M'Naghten Rules. The defence of
automatism was not available unless D could show
that his lack of mental capacity was due to an
external factor.
 Hypoglycaemia and Hyperglycaemia

 R v Bingham

hypoglycaemia was not caused by the disease

itself but by the treatment of the disease in
the form of taking too much insulin or by
insufficient quality or quantity of food to
counter-balance the insulin (i.e. an external
factor). Generally speaking, that would not
give rise to a verdict of not guilty by reason of
insanity but to a defence of automatism.
 Defect of Reason

 R v Clarke

The M’Nagthen rules relate to accused persons who

by reason of a disease of the mind are deprived
of their power of reasoning. They do not apply
and never have applied to those who retain the
power of reasoning but who in moments of
confusion or absent-mindedness fail to use their
powers to the full.
 Cognitive Test: Nature and Quality

 Codère (1917) 12 Cr App Rep 21,

insanity defence is unavailable if the defendant

has knowledge of the physical aspects of the act
alleged even if he or she does not have
knowledge of the moral aspects of his or her act
Cognitive test: Did not know it was Wrong

Legally not morally wrong

R v Windle

R v Johnson
 ‘Wrong’

In Australia (Stapleton v R) and in Canada (Chaulk) it

was held that if D believes his act to be right according
to the ordinary standards of reasonable men then the
defence of insanity was available even if he knows his
acts are illegal.

Is this a better approach?

Mackay’s research suggests that a broader
interpretation is often given to ‘wrong’
 Irresistible Impulse?

Serial killers often speak of an irresistible

impulse or compulsion to kill – should this come
within the Insanity Defence?

 Kopsch(1925) 19 Cr App R 50

 Sodeman [1936] 2 All ER 1138

 Irresistible Impulse

 Covered by Diminished Responsibility: s2 Homicide

Act 1957 as amended

Substantial Impairments: 1A
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.

Partial defence to Murder Only

 Intoxication and Insanity

 Lipman

although nature and quality part of M’Naghten test

passed, the behaviour was due to the ingestion of
LSD not a disease of the mind.

 Burns
 Criticism of Insanity Law

Too Narrow on Cognitive Test?

 Butler Report, 1975

even persons who are grossly disturbed generally know
that murder and arson are crimes

Could be argued that to base a test on moral

wrong and not legal wrong would be too
uncertain
 CRITICISM OF INSANITY LAW

 Too Narrow on cognitive test?

“Jeffrey Dahmer knew exactly what he was doing. He took
precautions. He knew the consequences of his actions. But he
did not want to stop. Nobody can deny that Jeffrey Dahmer is
a sick person. (But) he is not psychotic,” Palermo told the
jury. “He was legally sane at the time of the offenses.”
 Too Narrow on Cognitive Test?

‘I alone am the one who is responsible for what's

happened. The only motive that there ever was, was to
completely control a person--a person I found
physically attractive. And keep them with me as long
as possible, even if it meant just keeping a part of
them.’
Jeffrey Dahmer

Lack of responsibility?
 CRITICISM OF INSANITY LAW

Too Broad on disease of the mind

people with conditions that would not be described

generally as mental disorders have been held to
come under the M’Naghten understanding of
insanity. These include, for example, sleepwalkers,
and people with epilepsy or diabetes.
 CRITICISM OF INSANITY LAW

Too Broad on disease of the mind

 the law has not distinguished between mental

disorders and physical disorders so that the latter are
outside the notion of “disease of the mind” in
M’Naghten. (see Kemp)
 The line drawn between internal and external causes
is deeply problematic
 CRITICISM OF INSANITY LAW

Too broad on Disease of the Mind

 Lord Diplock in Sullivan – the label is a technical
one

 Lawton LJ in Quick – law should not give the words

… disease of the mind … a meaning that would be
regarded with incredulity outside the court
 INCOMPATIBLE WITH ECHR

Winterwerp v Netherlands

Does our law on insanity meet these 3

requirements?
 REFORMS

 Draft Criminal Code Bill 1989 – mental

disorder verdict

 Law Commission, Insanity and

Automatism Scoping Paper 2012 – see
comments on hand-out
 Automatism and Insanity Discussion Paper

 Significant problems from theoretical point of view

but not so problematic in practice
 a person should be exempted from criminal
responsibility if he or she totally lacked capacity to
conform to the relevant law- rejecting arguments
that Insanity defence should be abolished
 the mismatch between the legal test and modern
psychiatry is striking
 Automatism and Insanity Discussion Paper

 provisionally propose a new defence of “not

criminally responsible by reason of recognised
medical condition” which would replace the existing
insanity defence.
 This would be a defence founded on complete loss of
capacity; mere impaired capacity, even substantially
impaired capacity, would not be enough for the
defence to succeed
 Not all medical conditions will qualify as a
“recognised medical condition”
 Automatism and Insanity Discussion Paper

In sum, the party seeking to raise the defence must

adduce evidence from at least two experts that at the
time of the alleged offence the defendant wholly lacked
the capacity:
(i) rationally to form a judgment about the relevant
conduct or circumstances;
(ii) to understand the wrongfulness of what he or she
is charged with having done; or
(iii) to control his or her physical acts in relation to the
relevant conduct or circumstances as a result of a
qualifying recognised medical condition.
Non-Insane Automatism
 Automatism

Arises when D acts while

unconscious or with impaired
consciousness

A denial of actus reus

 Automatism

Can divide into:

1. Non-insane automatism (external cause)
– a complete defence if successfully pleaded

2. Insane automatism (internal cause)- you

apply the M’Naghten rules which if satisfied
will result in special verdict Not guilty by
reason of Insanity
 Rationale of the defence

Defence is allowed as D’s act is not

voluntary

A denial of culpability or
blameworthiness
 NON-INSANE AUTOMATISM

D has an evidential burden

Bratty v AG for NI - D must lay
the foundation for the defence

Stripp - Prosecution must then

negative claim beyond a
reasonable doubt
 ELEMENTS OF THE DEFENCE

1. There must be a complete loss of

voluntary control

2. Caused by an external factor.

3. D was not at fault in losing capacity

These are tightly controlled to limit the availability of

the defence
 MEANING OF INVOLUNTARY

Bratty v AG for NI
Need for caution as pleading a ‘blackout’ is often a
refuge for a guilty mind

Hill v Baxter
 COMPLETE LOSS OF CONTROL

 Isitt
The driving was purposeful driving

 Broome v Perkins
His actions were only involuntary at intervals
and at times his mind must have been
controlling his limbs. It was necessary to
show that the D was exercising no control
over his actions.
 COMPLETE LOSS OF CONTROL

 AG’s Reference (No. 2 of 1992)

‘a total destruction of voluntary control’

 Coley
The essence of automatism is that the movements of
actions of the D …were wholly involuntary. The
better expression is complete loss of voluntary
control. ‘Involuntary’ is not the same as ‘irrational’
 EXTERNAL FACTORS

 Relationship between insane and non-

insane automatism.

 Distinguished by the CAUSE of the

state
 Internal cause – Insane automatism
M’Naghten Rules apply.
 External cause – Non-Insane Automatism
 EXTERNAL FACTORS

 Rabey - Ordinary stresses and disappointments of

life which are the common lot of mankind do not
constitute an external cause.

R v T

 R v Hennessy- stress, anxiety or depression

which lead to impaired consciousness are not
themselves physical external factors
 Sleepwalking – insane-automatism

 Originally thought to come under

Automatism
 Bratty …..

 Tolson [1879] QBD 168

 Lillienfield [1985] The Times, 12 Oct

 Sleepwalking – insane-automatism

But now see

Burgess

Sleep is a normal condition, but the evidence

in the instant case indicates that sleep-
walking, and particularly violence in sleep, is
not normal. This was an abnormality or
disorder, albeit transitory, due to an internal
factor.
Sleepwalking – insane-automatism ?

Seems however that the Courts are allowing a

defence of automatism on occasions (sex-somnia)

 Bilton – 20 Dec 2005 Unreported The Guardian

 The trial of Andrew Machin (2013)

http://www.bbc.co.uk/news/health-22446378
 Diabetics – Internal/External

 Hennessy; Quick

A transitory malfunctioning of the mind caused by

hypoglycaemia was due to an external cause and
could give rise to a plea of automatism, whereas
hyperglycaemia was due to the disease itself and so
resulted from an internal cause and gave rise to a
plea of insanity or insane automatism.
BLAMELESSNESS AND PRIOR FAULT

 Quick

“A self-induced incapacity will not excuse … nor will

one which could have been reasonably foreseen as a
result or either doing, or omitting to do something,
as, for example, taking alcohol against medical
advice after using certain prescribed drugs, or
failing to have regular meals while taking insulin”
BLAMELESSNESS AND PRIOR FAULT

 Bailey
If he does appreciate the risk that such a failure
may lead to aggressive, unpredictable and
uncontrollable conduct and he nevertheless
deliberately runs the risk or otherwise
disregards it, this will amount to recklessness.
But we certainly do not think it is common
knowledge, even among diabetics, that such is a
consequence of a failure to take food and there is
no evidence that it was known to this appellant
BLAMELESSNESS AND PRIOR FAULT

 Stripp

 Coley
the voluntary consumption of intoxicants
leading to an acute condition is the prime
example of self-induced behaviour
 Reform

 Draft Criminal Code Bill 1989 – ‘effective

control’
 Reform: LC Discussion Paper 2013

 Automatism redefined:

D wholly lacked the capacity to control his or her

conduct, and the loss of capacity was not the
result of a recognised medical condition (whether
qualifying or non-qualifying), he or she shall be
acquitted

 Total loss of control required

 Prior Fault: If the D’s loss of capacity to control his or
her actions is due to something D culpably did or failed
to do then the defence of automatism should not be
available to D.
 Law Commissions Proposals

Case Disorder Current Law New defence

Kemp Arteriosclerosis Insanity Recognised

Medical
Condition
(RMC)
Sullivan Epilepsy Insanity RMC

Quick Hypoglycaemia Insanity & RMC

Automatism

Hennessy Hyperglycaemi Insanity RMC

a
T Post-traumatic Automatism RMC
stress disorder
Swarm of bees N/A Automatism Automatism
Insanity Automatism Diminished
Responsibility

Defence to any Defence to any Defence to Murder

crime crime Only

Burden on D Burden on P but D Burden on D

must lay the
foundation
Derives from Derives from Derives from an
‘Disease of the external cause abnormality of
Mind’ (Internal) mental functioning

Verdict: NGRI Acquittal Voluntary

manslaughter

Disposal: from Discretionary Life

indefinite detention sentence
to absolute
discharge
 Panel of Experts

A case note on R v Johnson [2007] EWCA

Crim 1978

And a note on Hogg C, ‘The Insanity

defence: an argument for Abolition’,
[2015] Journal of Criminal Law, 250

See Further Hot Topic Insanity &

Automatism 0n Internal/External
division and on the meaning or
‘wrong’
 Any Questions

 Post to Blackboard