Defense of Insanity in Ireland: Present Law and its Application to Psychopaths

Propositions for the reform of the criminal law concerning insanity had been debated in Ireland for decades. The factors, which undoubtedly justified the delay of reform, included traditionally low rates of crime and imprisonment in Ireland and the absence of public concern and political motivation about the crime until the 1960s.1

The Criminal Law (Insanity) Act 2006 attempted to address this issue. However, it did little to extinguish the problems pertaining to the substance of the law of insanity in Ireland, but instead, mainly focused on the procedural aspects. The main substantive change was the introduction of the defence of diminished responsibility.

Despite suggestions by some legal academics,2 that the defence of insanity should be abolished due to the absence of mens rea, or at least should be abolished as a separate defence,3 it can be argued that, in most cases, the defence is crucial to the proper functioning of the criminal justice system.4

The aim of this essay is to provide a critical analysis of the current status of the defence of insanity in Ireland. The essay will analyze the problematic legislative approach to the sentencing, incarceration and hospitalization of people with personality disorders. An attempt will be made to draw a conclusion in relation to the effectiveness of the Act.

Defense of Insanity: The Battle of Two Disciplines

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In Ireland, there are currently three forms of insanity: the insanity defence under Section 5, the defence of diminished responsibility under Section 6 and, finally, the unfit to be tried plea under Section 4. The purpose of raising the defence of insanity under Section 5 is to seek an exemption from criminal liability, based on the absence of mens rea, while the purpose of the partial defence of diminished responsibility under Section 6 is to reduce a murder charge to manslaughter. Both defenses can only be raised if the person is fit to

stand the trial. Even if the accused has failed to raise any of the above forms of insanity successfully during the trial, the evidence of his or her mental disorder may nevertheless be taken into consideration at the sentencing stage of the trial.5

Section 1 of the Act defines “mental disorder” very vaguely as including “mental illness, mental disability, dementia and any disease of the mind, but does not include intoxication.” From the wording of the legislation, it appears that the list is not inclusive. The only further clarification can be obtained from the Section 3 of the Mental Health Act 2001, which defines “mental illness.” The initial problem arrives from the fact that the term “insanity” itself is not recognized in psychiatry. Disease of the mind should not be equated with the disease of the brain, but, instead, it should affect the mental faculties of the reason, memory and understanding.6 Furthermore, it was confirmed by Diplock L in R v Sullivan 7 that the disease does not have to be permanent, provided that it was subsisted at the time when the crime was committed. Claim of temporary insanity may be problematic since investigation may delay the trial and it may be very difficult for the psychiatrist to assess the person’s mental condition retrospectively, based on the events occurred in the past.

It is unclear from the definition whether personality disorders come within the scope of the act. The original intention of the drafters was to include personality disorders.8 However, it was later rejected based on the fear that by doing so the defence would become a license to kill. Despite that, it can still be argued that some personality disorders, such as psychopathy, may also be defined as a “disease of the mind”, as suggested in People (DPP) v O’Mahony.9

The term is outdated and misleading, as the law is not primarily concerned with whether the mind was diseased, but rather with impairment of mental faculties and a risk or reoccurrence.10 As a result, McAuley criticized the approach where purely physical diseases or states that are only incidental concerns to psychiatrists, such as epilepsy,11 may in some situations be considered forms of legal insanity and attract a label of being “insane” in legal terms, not necessarily in factual.12 The Butler Committee 1975 in England suggested that the substitution of the term “insanity” with “mental disorder” will modernize the 21st century legislation.

The purpose of an intentionally broad definition of mental disorder remains unclear. At present, the term of mental disorder is legal and not medical and in providing an expert testimony, psychiatrists have to rely on the legal definition of insanity. Should it be done to take the future development in psychiatric research into account, then the unification of the legal and psychiatric definition of mental disorder is required.

Unlike in cases of automatism, only internal factors, as it was confirmed in R v Sullivan,13 can be involved to constitute the state of insanity in Ireland. The definition in Ireland, unlike in England, specifically exclude intoxication. The question then arises as to whether, for example, self-induced schizophrenia should be distinguished from genetically inherited one. It is well established among psychiatrists that, apart from the generic predisposition, external factor such as the use of cannabis and alcohol addiction can trigger the development of schizophrenia.14 In England, the rule is more relaxed in allowing people with alcohol related disorder to raise the defence of insanity if both mental illness and alcoholism let to the offense committed.15

At present, the law in Ireland does not seem to approve this argument and, as it was confirmed recently in People (DPP) v Crowe,16 the fact of intoxication can increase the sentence to life, despite accepting the defence of diminished responsibility. It is firmly accepted in law that the purpose of raising the defence is to mitigate the sentence for the crime committed. To interpret this purpose otherwise may amount to judicial activism. It is recommended that the matter should be left to the jury.17

The mere presence of mental disorder at the time when the crime was committed will not justify the acceptance of the defence of insanity at the trial. Section 5(1) (b) has three further requirements: not knowing the nature and quality of the act, not knowing that was he or she was doing was wrong or was unable to refrain from committing the act.18

The “nature and quality” of the act refers to its physical nature.19 It would cover the cases of hallucinations, where the accused believed that he or she did something different from the act which was actually done, like shooting hunters in the forest in a belief that they are deer. The negative aspect of this over-inclusive approach is that it incorporates cases where the accused has no control over bodily movements, such as in cases of sleepwalking and epilepsy. It can be suggested that such physical illnesses should not be included under the defence of insanity.20

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Section 5(1) (b) (ii) provide an alternative option where the accused did not know that what he or she was doing was wrong. However, the act must still stream from the disease of the mind. The initial argument can be raised that the person who does not know the nature and quality of the act must also not have known that it was wrong.21

It appears from Goddard LCJ judgment in R v Windle,22 that the law is only concerned with legal wrongs. However, in practice, Campbell notes that the law of England and Wales can also take into account the knowledge of the moral wrongs of the accused, but the position became unclear after R v Johnson.23 There is no definite test in Ireland either, however, Charleton and Hanley noted that in practice jury is also directed that wrong includes morally wrong.24

The final provision under Section 5(1) (b) (iii) allows the accused to plea the defence of insanity where he or she was unable to refrain from committing the act. The doctrine of irresistible impulse25 was developed in Doyle v Wicklow County Council 26 and People (DPP) v Courtney.27Relying on the defence of irresistible impulse can be viewed as problematic by allowing people to commit serious offenses and claiming that they could not resist. It may be difficult to distinguish between an impulse that was irresistible due to the disease of the mind and one caused by the desire for revenge.28 The courts in other jurisdictions remain hostile to this concept. A good example of such hostility is in the judgement of Riddle J in the Canadian case of R v Creighton29 where he famously said that “if you cannot resist an impulse in any other way, we will hang a rope in front of your eyes, and perhaps that will help.” This may become an incredibly reliable test during the trial.Continued on Next Page »