Defense of Insanity in Ireland: Present Law and its Application to PsychopathsExpert Witness TestimonyThe new further requirement of raising the defence of insanity is the expert witness testimony, which merely assists the court in providing an opinion.30 The decision ultimately rests with the jury and the reverse burden of proof in the case of insanity is controversial.31 The lack of collaboration between two disciplines makes the task of the testimony problematic. The psychiatrists are restrained by the legal definition of the mental disorder in their testimony. This may lead to the situation like in cases of epilepsy, where some people may be declared legally insane, but not medically and vice versa, like in cases of personality disorders, where those who may need a medical treatment are not identified. However, the lack of complete reliance on such evidence can be justified. It can be argued that by placing too much reliance on the testimony, it will diminish the role of the jury and may result in psychologisation of criminal liability, while the exclusion of the same may result in uninformed judgment.32 Life After the TrialThe outcome of the successful plea raised under Section 5 is a special verdict of “not guilty by reason of insanity.” The 2006 Act removes automatic hospitalization which existed under the common law. This reform was initially viewed as positive, since in the past even those who might otherwise plea the insanity, chose not to do so due to the fear of indefinite hospitalization. It was thought that the abolition of automatic hospitalization would allow people with mental illnesses to have a choice of adequate defenses. It did not happen in practice and to present days, the defence is rarely used.The courts now have two options: a full acquittal or detention for up to 14 days to assess whether there is a need for hospitalization. Such detention can be problematic and contrary to the Article 5(1) of the European Convention on Human Rights as discussed in Winterwerp v The Netherlands,33 which emphasized that a detention must be based on objective medical testimony and not on the court’s own view and legal standards. Due to considerable delays in the trials, there can also be a situation where the accused committed the crime while having mental illness, but he or she no longer suffers from it at the time of the trial. Should the accused be allowed to refrain from taking medications before the trial so as to present him or her in the same condition as at the time of the crime, the court is more likely to declare that the person is unfit to be tried. This dilemma remains unresolved. If it is determined that detention is required, the accused will be hospitalized for such a time until the Mental Health (Criminal Law) Board deems him fit for the release. While removing an automatic hospitalization, the Act does not specifically state this, but it is implicit in the wording of Sections 5(2) and (3). Furthermore, the legislation is silent of the maximum period of hospitalization. Considering the history of indefinite incarceration in Irish institutions,34 the burden of proof, which rests on the accused in respect of insanity, it can be argued that the indefinite detention in the hospital contrasted with the definite prison term may be a crucial factor in the decision of raising the defence of insanity. In People (DPP) v WB,35 Sheehan J noted that the Act places a significant limitation on the judiciary’s discretion as to the type of treatment that a person might be afforded. The court can only decide whether the accused needs in-patient care or not in the designated centers. The plural form used in the legislation raises questions as to its meaning. As originally drafted, its intent was to include prisons as a designated centre to cater for somebody with maximum security needs like Hannibal Lecter. However, due to the lack of funding for existing facilities in prisons, the only designated centre in operation at present is the Central Mental Hospital. Should the situation improves, a good example of the variety of in-patient and outpatient treatments in Russia can be considered. Its diversity of methods allows each patient to be treated differently and in his or her best interests. It also, in cases of out-patient treatments, provides for a necessary link with society. The link, which many prisoners or patients in mental hospitals find so difficult to re-establish on release. Despite the fact that the Mental Health Act 2001 regulates civil commitments and the Criminal Law (Insanity) Act 2006 deals with criminal detainments, two statutes are in pari material. However, Sheehan J in People (DPP) v WB noted that there is a huge discrepancy in the protection afforded to patients under two acts. The Criminal Law Act, unlike the Mental Health Act 2001, provides for no requirement to act for the “best interest of the patient.” This, therefore, appears to undermine any requirement for the Court to exercise its role as pariens petriae, pursuant to its inherent jurisdiction, at the sentencing stage.36 Furthermore, according to the 2001 Act, the initial period of detention is 21 days within which there must be a review by a Mental Health Tribunal. In contradistinction to this, the 2006 Act provides for the review only every six months. The reason for not aligning two Acts can, however, be justified based on the different purposes of the legislation. Pyschopaths: Prison, Home, or Hospital?The special class of offenders with personality disorders continue to remain somewhere between the lines of the new legislation. While the perpetrators of serial murders are often somebody with abnormal psychology, the commission of serial murders by them is usually a planned, thought out action.37 There is no solid suggestion that their homicidal motives are epistemological biased. They seem to proceed from the deviant character of their desire and have no defect of understanding as to what they do. For this reason, by possessing the mens rea element and, despite suffering from at least one of personality disorders, most of them are not allowed to use the defence of insanity. Personality disorders have not generally been viewed as sufficiently severe to meet the mental disorder requirement for the defence of insanity38 and the 2006 Act lacks clarity on this issue. Furthermore, there is an ongoing perception that psychopaths are simply “bad”, not “mad.” Psychopaths, unlike schizophrenics, at first sight appear to be normal, not suffering in general from hallucinations, delusions or retardation with the exception of visionary sadistic killers. They often admit their involvement in crime and are capable of restating very particular details. Furthermore, they may appear intelligent and certainly not as “typical criminals”, but at the same time they are unable to confine behavior to social norms and control impulses.39 While some suggest that they lack empathy and have no emotional attachments, it can be argued that some of their actions may be driven by empathy, such as belief by a person, that by killing his daughters, after discovering that his wife had an affair, it would be better for them. These types of psychopaths often express feelings of remorse. Other academics suggest that psychopaths simply have a problem in applying the term “guilt” correctly, like very young children.40 Various types of motivations are discussed in the literature, such as anger, ideology, thrill to kill and sexually based motivations, making all psychopaths in the eyes of society as evil predators.41 What often become “lost in translation” are the deeply rooted causes of such motivations, which dominate the psychopath’s mind. Certain reactions can be triggered by emotional traumas, which were untreated and deteriorated into the personality disorder. By taking the history of the personality disorder into account, rather than making drastic decisions simply on the basis of the existence of the disorder, can lead to the more coherent approach to judgements. Of course, a failure to seek a medical treatment at the right time and then trying to rely on mental illness when symptoms have already affected behavior in a substantial way should also be considered by the jury. While the unavailability of the defence of insanity can be justified on the basis of the presence of mens rea, it can be argued that a serial killer suffering from psychopathy cannot be completely responsible for his or her actions and therefore being labelled as guilty, based on the objective and generalized approach. The current cognitive42 definition adopted in the act is very narrow and can lead to situations where perpetrators with mental illnesses can still end up serving up to the life term sentences for manslaughter in ordinary prisons with no medical treatments.43 Such situations can create a dangerous environment for the prison staff, the accused and, indeed, other inmates. It can also be argued that the accused will not appreciate any deterrence effect of imprisonment, which is one of the aims of incarceration. The issue of over-use of solitary confinement as a substitute for appropriate treatment for mentally unstable prisoners was raised by the Irish Penal Reform Trust.44 Such confinement often causes violent behavior and suicidal attempts by mentally ill prisoners. The reasons for confinement are based on the subjective belief of the prison staff, not on medical evidence. The conditions of cells and prolonged period of detention of prisoners in them without any medication makes their use incompatible with a basic human right enshrined in Article 5 of the United Nations Universal Declaration of Human Rights. The Irish Penal Reform Trust strongly suggested the replacement of such cells with well-lit observation wards and it recommended the idea of mental health courts as well as appropriate and separate medical in-services, general rehabilitation and educational services. While the option of incarceration may not be ideal, the alternative of hospitalization has its side effects too. The strong emphasis on anti-psychotic medication, failure by many psychiatrists to enter into a therapeutic relationship with patients, lack of transparency of the review process raises a concern as to whether the current Irish approach to hospitalization is adequate for rehabilitation purposes.45 The reform is clearly overdue and it brings us to the question of whether a new defence of the psychological defect should be incorporated into the insanity defence and be afforded to defendants with personality disorders, as opposed to the defence of diminished responsibility. The current law will not entertain the defence of insanity raised by the person who intentionally committed the crime, irrespective of how heinous the motive was. Therefore, the catch-all defence of diminished responsibility, which places all defendants who could not fit into the standard of insanity, is widely used as an alternative in murder trials. Diminished responsibility acknowledges that there are factors which interfere with self-control without obliterating it, and seems therefore ideally suited to the apparently dual character of personality disorder. But the defence of diminished responsibility will carry a stigma of being a criminal, while the successful plea of insanity will result in a non-guilty verdict, but may carry an indefinite hospitalization. The choice is limited. The only possible argument for allowing the defence of insanity can be theoretically made in cases where the accused believed that what he did want not morally wrong in the mind of ordinary people. However, where the belief is entirely personal, such ignorance of the law will not allow the accused to raise the defence of insanity. Another possible option would be the claim that despite understanding that the actions were morally and legally wrong, the defendant was unable to refrain from committing the crime.46 But where does it leave the perpetrator who did not see the reason for refraining and had his own “good” logic, as most psychopaths do. Alternatively, a term of insanity can be replaced by a term of “mental disorder”, allowing for a broader test.47 The current law in Ireland only gives an option of raising the defence of diminished responsibility in homicide cases, leaving the sexual and other aggravated assault outside the scope.Continued on Next Page »
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