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.
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, 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, it can be argued that, in most cases, the defence is crucial to the proper functioning of the criminal justice system.
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.
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.
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. Furthermore, it was confirmed by Diplock L in R v Sullivan 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. 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.
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. As a result, McAuley criticized the approach where purely physical diseases or states that are only incidental concerns to psychiatrists, such as epilepsy, may in some situations be considered forms of legal insanity and attract a label of being “insane” in legal terms, not necessarily in factual. 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, 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. 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.
At present, the law in Ireland does not seem to approve this argument and, as it was confirmed recently in People (DPP) v Crowe, 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.
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.
The “nature and quality” of the act refers to its physical nature. 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.
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.
It appears from Goddard LCJ judgment in R v Windle, 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. 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.
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 impulse was developed in Doyle v Wicklow County Council and People (DPP) v Courtney.Relying 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. 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 Creighton 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 »
Books
Ashworth A, Principles of Criminal Law (6th edn, Oxford University Press 2009)
Blair J, Mitchell D, Blair K, The Psychopath: Emotion and the Brain (Blackwell 2005)
Campbell L, Kilcommins S, O’Sullivan C, Criminal Law in Ireland: Cases and Materials (Clarus Press 2010)
Cawthorne N, The World’s Greatest Serial Killers (Chancellor Press 2011)
Charleton P, McDermott P, Bolger M, Criminal Law (Tottel 2006)
Clarkson C, Keating H, Cunningham S, Clarkson and Keating Criminal Law: Text and Materials (7th edn, Sweet and Maxwell 2010)
Clyne P, Guilty but Insane: Anglo-American Attitudes to Insanity and Criminal Guilt (Nelson 1973)
Jewkes Y, Media and Crime (Sage 2004)
Hamilton C, The Presumption of Innocence and Irish Criminal Law (Irish Academic Press 2007)
Hanly C, An Introduction to Irish Criminal Law (2nd edn, Gill and Macmillan 2006)
Healey T, The World’s Greatest Crimes of Passion (Hamlyn 2010)
Kennedy H, The Annotated Mental Health Acts (Blackhall 2007)
Kilcommins S, O’Donnell I, O’Sullivan E, Vaughan B, Crime, Punishment and the Search for Order in Ireland (Institute of Public Administration 2004)
Krauss D, Lieberman J, Psychological Expertise in Court: Psychology in the Courtroom Vol II (Ashgate 2009)
Mackay R, Mental Condition Defences in the Criminal Law (Clarendon Press 1995)
McAuley F, McCutcheon J, Criminal Liability (Round Hall Sweet and Maxwell 2000)
McAuley F, Insanity, Psychiatry and Criminal Responsibility (Round Hall 1993)
McIntyre T, Spencer K, Whelan D, Criminal Legislation Annotated 2006-2007 (Thomson Round Hall 2008)
Ormerod D, Smith and Hogan’s Criminal Law (13th edn, Oxford Press 2011)
Robinson D, Wild Beasts and Idle Humours – The Insanity Defence from Antiquity to the Present (Harvard University Press 1998)
Rogan M, Prison Policy in Ireland: Politics, Penal-Welfarism and Political Imprisonment (Routledge 2011)
Whelan D, “The Criminal Law (Insanity) Act 2006” Irish Current Law Statutes Annotated (2006)
Articles:
Duff A, “Psychopathy and moral understanding” (1977) 14 (3) American Philosophical Quarterly 189-200
Duggan D, “Diminished Responsibility and the Insanity Defence” (2006) 12(6) Bar Review 248-252
Fazel S, Grann M,”Psychiatric Morbidity Among Homicide Offenders: A Swedish Population Study” (2004) 161(11) American Journal of Psychiatry 2129-2131
Griffin D, O’Donnell I, “The Life Sentence and Parole” (2012) 1 British Journal of Criminology 1-19
Hare R, “The Hare PCL-R: Some Issues Concerning its Use and Misuse” (1998) 3 Legal and Criminological Psychology 101-122
Kelly B, “Criminal Insanity in the 19th-century Ireland, Europe and the United States: Cases, Contexts and Controversies” (2009) 32(6) International Journal of Law and Psychiatry 362-368
Kennefick L, “Diminished Responsibility in Ireland: Historical Reflections on the Doctrine and Present Day Analysis of the Law” (2011) 62(3) Northern Ireland Law Quarterly 269-289
Lacey N, “Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility” (2010) 4 Journal of Criminal Law and Philosophy 109-133
Loughnan A, “Manifest Madness: Towards a New Understanding of the Insanity Defence” (2007) 70(3) The Modern Law Review 379-401
Mackay R, Reuber M, “Epilepsy and the Defense of Insanity: Time for Change,” (2007) Criminal Law Review 782-793
McGillicuddy T, “The Criminal Law (Insanity) Act 2006” (2006) 11(3) Bar Review 95-99
Munnelly N, “Diminished Responsibility and Sentencing Provisions” (2011) 16(1) Bar Review 18-20
Perlin M, “The Borderline Which Separated You From Me: The Insanity Defence, the Authoritarian Spirit, the Fear of Faking, and the Culture of Punishment” (1997) 82 Iowa Law Review 1375-1380
Ramage S, “Peter Young’s Insanity Plea: A Retrospective Examination of the Verdict of “Not Guilty on the Grounds of Insanity” (2008) 183 Criminal Lawyer 1-6
Reid W, “The Insanity Defence: Bad or Mad or Both?” (2000) 5 Journal of Psychiatric Practice 169-172
Shaw E, “Psychopaths and Criminal Responsibility” (2009) 13(3) Edinburgh Law Review 497-502
Silver E, Cirincione C, Steadman H, “Demythologizing Inaccurate Perceptions of the Insanity Defence” (1994) 18(1) Law and Human Behaviour 63-70
Simons C, “Antisocial Personality Disorder in Serial Killers: The Thrill of the Kill” (2001) 14(4) The Justis Professional 345-356
Slobogin C, “An End to Insanity: Recasting the Role of Mental Illness in Criminal Cases” (2000) 86 Virginia Law Review 1199-1247
Thomson D, “Manuel, Psychopathy and Risk Assessment” (2009) 5 Scottish Law Review 457-468
Irish Legislation:
Criminal Law (Insanity) Act 2006
Criminal Law (Insanity) Act 2010
Mental Health Act 2001
Irish Case Law:
Doyle v Wicklow County Council [1974] IR 55
JB v Mental Health (Criminal Law) Review Board & Org [2008] IEHC 303
People (AG) v Fennell (No 1) [1940] IR 445
People (DPP) v Courtney (CCA, 21 July 1994)
People (DPP) v Crowe [2009] 2 ILRM 225
People (DPP) v Mulder [2009] IECCA 45
People (DPP) v O’Mahony [1985] IR 517
People (DPP) v Redmond [2006] ILRM 182
People (DPP) v Reilly [2005] 3 IR 111
People (DPP) v Smyth [2011] 1 ILRM 81
People (DPP) v WB [2011] IECCC 1
Irish Reports:
Irish Penal Reform Trust, Out Off Mind, Out Of Sight: Community Solutions to the Criminalisation of the Mentally Ill Prisoners (2001)
UK Legislation:
Criminal Procedure (Insanity) Act 1964
Criminal Procedure (Insanity and Unfitness to Plea) Act 1991
Homicide Act 1957
UK Case Law:
R v Barry [2010] 2 All ER 1004
R v Bratty [1963] AC 386
R v Codѐre (1916) 12 Cr App R 21
R v Davis [1881] 14 Cox CC 563
R v Dietschmann [2003] UKHL 10
R v Dowds [2012] EWCA Crim 281
R v Johnson [2007] EWCA Crim 1978
R v Khan [2010] Crim LR 136
R v Kemp [1957] 1 QB 399
R v Sullivan [1983] 2 All ER 673
R v Windle [1952] 2 QB 826
R v Young [2002] EWHC 548
Other Case Law:
R v Creighton [1909] 14 CCC 249 (Canada)
Winterwerp v The Netherlands (1979) 2EHRR 397
Other Legislation:
Criminal Code of Russian Federation 1996
Online Articles:
Allyson G, “Reforming the Insanity Defence: The Need for a Psychological Defect Plea” (2010) 2(10) Student Pulse accessed 23 February 2012
Other Online Sources:
Federal Bureau of Investigation, BAU “Serial Murder: Multi-Disciplinary Perspectives for Investigators" http://www.fbi.gov/stats-services/publications/serial-murder› accessed 27 February 2012
The Mental Health Research Center of the Russian Academy of Medical Sciences, “Forensic-Psychiatric Examination in the Criminal Process and Prevention of Socially Dangerous Actions of Mentally Ill” ‹http://www.psychiatry.ru/lib/53/book/28/chapter/114› accessed 21 January 2012
Criminal Code of the Russian Federation 1996 ‹http://legislationline.org/documents/section/criminal-codes› accessed 28 January 2012
The Crown Prosecution Service, “Prosecution of Offenders with Mental Health Problems or Learning Disabilities ‹http://www.cps.gov.uk/publications/research/offenders_with_mental_health_problems.html› accessed 29 February 2012
1.) Shane Kilcommins, Ian O’Donnell, Eoin O’Sullivan, Barry Vaughan, Crime, Punishment and the Search for Order in Ireland (IPA 2004) Ch 2.
2.) Christopher Slobogin, “An End to Insanity: Recasting the Role of mental Illness in Criminal Cases” (2000) 86 Virginia LR 1199-1247, 1202.
3.) Sally Ramage, “Peter Young’s Insanity Plea: A Retrospective Examination of the Verdict of “Not Guilty on the Grounds of Insanity” (2008) 183 Crim Law 1-6 at 1; R v Young [2002] EWHC 548.
4.) David Ormerod, Smith and Hogan’s Criminal Law (13th edn, Oxford University Press 2011) 287.
5.) Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Clarus Press 2010) 993.
6.) R v Kemp [1957] 1 QB 399.
7.) [1983] 2 All ER 673.
8.) Darius Whelan, “The Criminal Law (Insanity) Act 2006” Irish Current Law Statutes Annotated (2006), 2.
9.) [1985] IR 517 at 522.
10.) Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Criminal Law in Ireland: Cases and Materials (Clarus Press 2010) 994.
11.) Bratty v Attorney General for Northern Ireland [1963] AC 386; R v Sullivan [1983] 2 All ER 673.
12.) Finbarr McAuley, Insanity, Psychiatry and Criminal Responsibility (Round Hall 1993) 63.
13.) [1983] 2 All ER 673.
14.) People (DPP) v WB [2011] IECCC 1 at 7.
15.) R v Davis [1881] 14 Cox CC 563 at 564; R v Dietschmann [2003] UKHL 10; R v Barry [2010] 2 All ER 1004; R v Dowds [2012] EWCA Crim 281.
16.) [2009] 2 ILRM 225.
17.) Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Clarus Press 2010) 993.
18.) Criminal Law (Insanity) Act 2006, S 5(1) (b) (i)-(iii).
19.) R v Codѐre (1916) 12 Cr App R 21.
20.) Andrew Ashworth, Principles of Criminal Law (6th edn, Oxford University Press 2009).
21.) Ronnie Mackay and Markus Reuber, “Epilepsy and the Defense of Insanity: Time for Change,” (2007) Crim LR 782-793.
22.) [1952] 2 QB 826.
23.) [2007] EWCA Crim 1978.
24.) Peter Charleton, Paul A McDermott, Margueritte Bolger, Criminal Law (Tottel 2006); Conor Hanly, An Introduction to Irish Criminal Law (2nd edn, Gill & Macmillan 2006).
25.) Criminal Law (Insanity) Act 2006, S 5(1) (b) (iii).
26.) [1974] IR 55.
27.) (CCA 21 July 1994).
28.) Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Clarus Press 2010) 1001.
29.) [1909] 14 CCC 249 (Canada).
30.) Criminal Law (Insanity) Act 2006, S 5(1).
31.) Jonathan Herring, Criminal Law (7th edn, Palgrave Macmillan 2011) 261.
32.) Diane Duggan, “Diminished Responsibility and the Insanity Defence” (2006) 12(6) Bar Review 248-252,252.
33.) (1979) 2 EHRR 397.
34.) Mary Rogan, Prison Policy in Ireland: Politics, Penal-Welfarism and Political Imprisonment (Routledge 2011) 118.
35.) [2011] IECCC 1 at 7.
36.) People (DPP) v WB [2011] IECCC 1 at 9.
37.) Gay Allyson, “Reforming the Insanity Defence: The Need for a Psychological Defect Plea” (2010) 2(10) Student Pulse accessed 23 February 2012.
38.) Daniel Krauss, Joel Lieberman, Psychological Expertise in Court: Psychology in the Courtroom Vol II (Ashgate 2009).
39.) Cassandra Simons, “Antisocial Personality Disorder in Serial Killers: The Thrill of the Kill” (2001) 14(4) Jus Prof 345-356.
40.) James Blair, Derek Mitchell, Karina Blair, The Psychopaths: Emotions and the Brain (Blackwell 2005) 57-59.
41.) Federal Bureau of Investigation, “Serial Murder: Multi-Disciplinary Perspectives for Investigators “at 18
‹ http://www.fbi.gov/stats-services/publications/serial-murder› accessed 27 February 2012.
42.) Some psychiatric literature suggests that psychopathy can impair cognitive ability. See Antony Duff, “Psychopathy and Moral Understanding” (1977) 14 (3) Am Phil Q 189-200.
43.) People (DPP) v Crowe [2009] 2 ILRM 225.
44.) Irish Penal Reform Trust, Out Off Mind, Out Of Sight: Community Solutions to the Criminalisation of the Mentally Ill Prisoners (2001).
45.) People (DPP) v WB [2011] IECCC 1 at 9.
46.) Criminal Law (Insanity) Act 2006, S 5 (1) (b) (iii).
47.) Darius Whelan, “The Criminal Law (Insanity) Act 2006” Irish Current Law Statutes Annotated (2006), 2.
48.) Michael L Perlin, “The Borderline Which Separated You From Me: The Insanity Defence, the Authoritarian Spirit, the Fear of Faking, and the Culture of Punishment” (1996-1997) 82 Iowa L Rev 1375.
49.) Eric Silver, Carmen Cirincione, Henry J Steadman, “Demythologizing Inaccurate Perceptions of the Insanity Defence” (1994) 18(1) Law & Hum Behav 63-70 at 67.
50.) Seena Fazel, Martin Grann,”Psychiatric Morbidity Among Homicide Offenders: A Swedish Population Study” (2004) 161(11) Am J Psychiatry 2129-2131 at 2131.
51.) Eric Silver, Carmen Cirincione, Henry J Steadman, “Demythologizing Inaccurate Perceptions of the Insanity Defence” (1994) 18(1) Law & Hum Behav 63-70 at 68.
52.) Yvonne Jewkes, Media and Crime (Sage 2004).
53.) Eric Silver, Carmen Cirincione, Henry J Steadman, “Demythologizing Inaccurate Perceptions of the Insanity Defense” (1994) 18(1) Law & Hum Behav 63-70 at 67.
54.) Diarmuid Griffin, Ian O’Donnell, “The Life Sentence and Parole” (2012) 1 Bit J Criminol 1-19 at 3.
55.) Criminal Justice and Licensing (Scotland) Act 2010, Section 168. Psychopathy is excluded from mental non-responsibility.
