Abstract
Having considered philosophical aspects of free will and determinism in the previous chapter, we turn here to reflections on the existing laws regarding mental disorders and criminal responsibility. We will see that legislation and case law in the English-speaking world have resulted in muddled and counter-intuitive verdicts. Rules for determining the sanity of the defendant at the time of the alleged crime are derived from the 19th century M’Naghten case and place emphasis on whether he or she was suffering from a “disease of the mind”. It is application of this phrase which has most frequently run contrary to straightforward interpretation. Sensible recommendations for overhaul of the law on criminal liability and mental health have recently been drafted, but are unlikely to be enacted in the foreseeable future.
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- 1.
The evolution of “unfitness to plead” is nicely summarised in a consultation paper produced by the Law Commission 2010.
- 2.
One high profile example of the sanity of the defendant was questioned occurred during the 2012 trial in Norway of Anders Breivik who was responsible for the murder of 77 people in the summer of 2011. Interestingly it was the prosecution on this occasion that had sought to show he was insane; Breivik himself had wished to be declared sane to support the argument that his actions were politically motivated and not the work of a deluded mind.
- 3.
M’Naghten’s Case 8 ER 718, [1843] UKHL J16.
- 4.
Quick [1973] QB 910.
- 5.
Hennessy [1989] 1 WLR 287.
- 6.
Sullivan [1984] AC 156.
- 7.
Kemp [1957] 1 QB 399.
- 8.
Burgess [1991] 2 QB 92, though there is more recent evidence that somnambulism is more likely now to be treated as a case of automatism.
- 9.
The defence of diminished responsibility was introduced via the Homicide Act 1957.
- 10.
This, of course, remains a potential sentence in the majority of US states (see Chap. 4).
- 11.
Homicide Act 1957 s2.
- 12.
Coroners and Justice Act 2009 s52.
- 13.
Winn J, in Watmore v Jenkins [1962] 2 QB 572, 587.
- 14.
Charlson [1955] 1 All ER 859.
- 15.
Royal Commission on Capital Punishment, Cmnd 8932 (1953), p 104.
- 16.
Report of the Committee on Mentally Abnormal Offenders (Butler) Cmnd 6244 (1975).
- 17.
Criminal Code, R.S.C., 1985, c. C-46, as amended.
- 18.
Criminal Law (Insanity) Act 2006.
- 19.
Criminal Justice and Licensing (Scotland) Act 2010.
- 20.
Parsons v State, 2So. 854 (Alabama 1887).
- 21.
Model Penal Code (Proposed Official Draft 1962).
- 22.
United States v Brawner, 471 F.2d 969 (D.C. Cir. 1972).
- 23.
United States v Hinckley, 672 F.2d 115 (D.C. Cir. 1982).
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Law Commission. 2010. “Unfitness to plead”, consultation Paper 197. Available online at http://lawcommission.justice.gov.uk/docs/cp197_Unfitness_to_Plead_consultation.pdf. Last accessed 21st Aug 2014.
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Willmott, C. (2016). Existing Legislation on Mental Disorders and Criminal Cases. In: Biological Determinism, Free Will and Moral Responsibility. SpringerBriefs in Ethics. Springer, Cham. https://doi.org/10.1007/978-3-319-30391-8_2
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