Insanity (Summary)


The defense of insanity is a defense that is available to all crimes. When the judge or the jury finds that the defendant falls under the scope of the defense, the verdict that is to be returned is the verdict of not guilty by virtue of insanity.

Insanity differs from diminished responsibility (which is also a defense on a charge of murder or intending to cause GBH (grievous bodily harm)) in that insanity is caused by inherent factors and diminished responsibility is cause by external, often extenuating circumstances,  for example repeated abuse or aggravating someone who is intolerant of the victim’s actions.

The latter is more in line with the defense of automatism though automatism is usually the result of the excessive consumption of alcohol or the excessive taking of drugs, or a failure to do something that the defendant who is under medication should do, for example taking insulin without eating any food and thus going into hypoglycemia.

All three defenses, while they deal with the inability of the mind to control the impulses, apply to different sets of circumstances. A lot depends on the facts.

In 1831 (York assizes) a lady who was deaf was charged with the killing of her illegitimate child. She was unable to speak and despite trying to use various signs she still wasn’t able to understand the charges against her. She was found mute by “visitation of god” and the jury were required to return a verdict of insane.

It is therefore possible to surmise that in instances and situations where the defendant is unable to understand or comprehend the charges that are directed at him or her, the judge or the jury should return the verdict of not guilty by virtue of insanity.

In R v Pritchard (1836) the defendant was deaf and mute, and it was decided that before the court or a jury can reach a verdict three factors had to be taken into account: –

1.     Whether the defendant is mute of malice

2.     Whether the defendant can plead

3.     Whether the defendant understands or comprehends the charges against him or her – Alderson B.

If the jury finds that they could not communicate with the defendant or the defendant could not understand the charges against him or her than the jury should find the defendant unfit to plead.

At the start of the trial, when the defendant is charged, he is charged on the presumption that he is sane and it is up to the defense to rebut the presumption of sanity i.e. to prove that the defendant is not sane.

In M’Naghten (1843) the defendant attempted to kill the Prime Minister, Sir Robert Peel, and instead shot and killed his secretary Edward Drummond. At the time of the killing the defendant was suffering from insane delusions i.e. a false conception of reality.

It was held that in all instances the jury is to be told that the defendant is presumed to be sane at the time of the crime and this presumption is valid until the defense can prove otherwise and in order for the defense of insanity to be successful it must be clearly proved by way of evidence that the defendant was laboring under such defect of reason due to a disease of the mind that he or she was unable to know the nature and quality of the act.

In 1883 the Trial of Lunatics Act was passed and as per s.2(1) of the act: –

“Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return (a special verdict that the accused is not guilty by reason of insanity.)”

With regards to the defense of insanity, a wrongful act is an act that is defined as an act that is legally wrong and not morally wrong i.e. it must be an act that is in breach of either common law or statutory law and as long as the defendant can appreciate or understand that his actions are legally wrong than the defense of insanity would not be  made available to him.

The defense of insanity only comes into play when the defendant is not capable of understanding the nature of his or her act or is not able to comprehend the seriousness of the offence.

In R v Windle (1952) the defendant administered an aspirin overdose to his suicidal wife, who was terminally ill. He was without doubt suffering from a mental condition but during his arrest, he said to the arresting officers “I suppose that they will hang me for this” which implied that the defendant knew that his act was legally wrong, and he was able to understand the seriousness of his act. He was tried and convicted, and the defense appealed.

The appeal was dismissed, and the conviction was upheld. As long as the defendant can appreciate, understand or comprehend the seriousness of his act or actions, the defense of insanity would not be made available to him.

A physical disease of the mind or damage to the brain will, if the circumstances permit, allow the defendant to raise the defense of insanity, and the M’Naghten rule can be extended to cover these type of situations.

In R v Kemp (1957) the defendant who was suffering from arteriosclerosis (a thickening or hardening of the arteries normally caused by old age) assaulted his wife with a hammer and the defendant was charged under section 18 of the Offences Against the Person Act 1861 for causing grievous bodily harm (GBH) to his wife. At the trial the defendant raised the defense of automatism but the trial judge directed the jury on insanity.

It was held that in order to determine if the defense (insanity) would avail itself to the defendant the court had to look into whether the mental faculties of reason, memory and understanding are impaired or absent and the physical state or condition of the mind is irrelevant. If the defendant was not able to comprehend or understand that the result of his actions would lead to dire consequences either to him or the victim than the defense would apply.

Likewise if the defendant is able to comprehend or understand the gravity of his actions, despite suffering from some sort of mental impairment, as in the case of  R v Windle (1952) then the defense would not avail itself or would not be made available to the defendant.

In 1964 parliament passed the Criminal Procedure (Insanity) Act 1964 which takes into account the defendant’s fitness to plead with regards to defendants who suffer from a disability. S. 4 of the act reads as follows:-

Finding of unfitness to plead:-

(1) This section applies where on the trial of a person the question arises (at the instance of the defense or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.

(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defense.

(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.

(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.

(5) The question of fitness to be tried shall be determined by the court without a jury.

(6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

With regards to sugar levels in the body, it can be divided into two categories. They are as follows:-

1) Hypoglycemia (a lack of glucose in the body). Hypoglycemia is caused by external factors i.e. the defendant not doing something he should be doing or doing something that he shouldn’t be doing. In such instances, depending on the facts, the defense can raise the defense of automatism

and

2) Hyperglycemia (excess sugar in the body). Hyperglycemia is a condition that occurs naturally and it is caused by internal factors. In such instances, the defense can raise the defense of insanity

In R v Quick (1973) the defendant a male nurse who was a diabetic had taken insulin without consuming any food, and in addition to that had consumed alcohol which aggravated the situation (whisky and rum). He assaulted a patient who was a paraplegic and inflicted injuries that included a broken nose and a black eye.

The defendant was charged under s.47 of the Offences Against Person Act (1861) and the trial judge directed the jury on insanity (automatism that arises naturally). He was convicted and he appealed.

The appeal was allowed and the conviction was quashed. The defendant was suffering from automatism that arose from a failure to consume food after taking insulin or taking excessive insulin and his condition was further aggravated or exacerbated by the fact that he’d been drinking.

It was automatism that arose from external factors i.e. a failure to do something that is required or doing something that the defendant shouldn’t be doing given his condition and the type of automatism that the defendant suffered from fell under the category of intoxication.

Automatism even if it is self induced can be a defense to basic intent crimes i.e. crimes where the mens rea that is required to secure a conviction is either negligence or recklessness).

In R v Bailey (1983) the defendant a diabetic went over to the house of his ex-lover’s new partner (victim), clearly upset over the fact that his ex-girlfriend had moved on. The victim invited the defendant in to discuss the matter, and the defendant who had taken his insulin but had not consumed any food, prior to the visit, felt that he was going into hypoglycemic, a state caused by a lack of glucose in the body and asked the victim for a glass of sugared water and upon drinking the water, the defendant was about to leave. As he was about to step out, he dropped his glove, and the victim bent over to pick it up and while he was doing so, the defendant hit him over the head with an iron bar.

The defendant was charged under s.18 of the Offences Against Person Act (1861) and the defendant countered by stating that he had no control of his actions, having at that stage succumbed to hypoglycemia and raised the defense of automatism. The trial judge ruled that automatism, self-induced or otherwise is not a defense or a mitigating factor when it comes to basic intent crimes and the jury convicted accordingly. The defendant appealed.

The Court of Appeal upheld the conviction and ruled that while there may have been a misdirection, it was not sufficient to render the conviction unsafe.

It was decided that self-induced automatism, other than that due to intoxication, i.e. automatism that arises from excessive drinking or from the use of drugs, may be a defense in basic intent crimes.

With regards to the defense of automatism, in instances of hypoglycemia, it is worth asking the question if the defense should still be allowed, given the fact that medical science has come forward in leaps and bounds and almost everyone on insulin or other types of medication to reduce sugar levels in the body is warned beforehand of what could happen if they take these medications without eating.

A defendant on insulin could always knowingly commit a crime and then seek to rely on the defense of automatism but we have to look at it in light of Sir William Blackstone’s principle i.e. “it is better to let ten guilty persons escape than to let one innocent man suffer”.

It is up to the prosecution on a criminal charge to proof beyond reasonable doubt (burden of proof) that the defendant did indeed commit the crime and all the defense has to do, is to raise reasonable doubt.

Because the courts cannot risk wrongfully convicting someone, the defense of automatism is allowed. To do otherwise might lead to a grave injustice.

In instances where the defendant inflicts some sort or type of harm to another during an epileptic fit (a subtle momentary loss of awareness, which causes the body to jerk and tremble), we once again have to look into the facts to determine which of the following defenses would apply: –

1) Automatism

2) Insanity

When the epileptic fit is brought on by external factors for example from the excessive taking of drugs or drinking the defense that is available is automatism.

When the epileptic fit is brought on by internal factors or inherent factors the defense that is available is insanity.

In R v Sullivan (1983) the defendant in an epileptic fit kicked the victim a 86-year-old man in the head and body. The defendant was charged under section 18 and 20 of the Offences Against Persons Act (1861) and during the trial, the trial judge directed the jury on insanity based on the fact that the epileptic fit that the defendant suffered from was caused by internal or inherent factors. The issue on hand was whether the appropriate defense was insanity or automatism. The defendant appealed.

The appeal was dismissed, and it was held that the trial judge’s direction was correct. The epileptic fit was caused by internal and inherent factors and fell under the scope of insanity i.e. it is classified or categorized as a disease of the mind.

As we’d mentioned earlier when the defendant’s actions are caused by hyperglycemia or an excess of sugar in the body the defense that is available to the defendant is insanity.

In R v Hennessy (1989) the defendant was arrested while driving a stolen car and was subsequently taken to the police station. The defendant’s wife had just left him and as a result the defendant was depressed and had failed to take his prescribed dose of insulin – the defendant was a diabetic.

The defendant was lethargic, drowsy (symptoms of hyperglycemia) and suffered from temporary memory loss. The defendant could not remember taking the car. The defendant raised the defense of automatism, but the trial judge directed the jury on insanity instead. The defendant was convicted, and the defense appealed.

The appeal was dismissed, and the Court of Appeal held that the trial judge had been correct in his direction. Automatism only arises when the defendant’s actions are caused by external factors and in this instance the defendant’s actions were precipitated by internal or inherent factors i.e. a condition that corresponds with a disease of the mind and hence the correct defense to raise was that of insanity.

It is also worth mentioning that temporary memory loss is not a normal symptom of hyperglycemia, though there may be exceptions, each individual is different, but in most instances, those suffering from hyperglycemia would find it difficult to make it to the front door.

When the defendant’s actions are due to post traumatic stress (a mental disorder that is triggered by a horrifying or terrifying event) the defense that is available to the defendant is automatism because despite the seriousness of the illness, it is brought on by external factors and often factors that are beyond the defendant’s control.

In R v T (1990) the defendant was a rape victim who a few days after the incident was involved in a robbery which included causing actual bodily harm as defined by s.47 of the Offences Against Person Act (1861). During the trial the defendant claimed that she was in a dream like state or in another reality and medical evidence showed that at the time she was suffering from post traumatic stress as a consequence or result of which she was in a dis-associative state.

The trial judge directed the jury on automatism, in line with the decision in R v Quick (1973) i.e. a disorder that has been brought on by external factors, in this case a horrible and terrifying crime, but the jury convicted nonetheless.

Sleepwalking (somnambulism) is another disorder (behavioral) that can cause the defendant to perpetrate criminal acts. It is caused by internal or inherent factors and as a result the defense that is available to the defendant is insanity.

In R v Burgess (1991) the defendant injured a woman while she was sleeping by hitting her over the head with a whisky bottle and striking her with a video recorder. The defendant was charged under s.18 and s.20 of the Offences Against the Person Act (1861) for wounding with intention to cause grievous bodily harm.

The defendant had no recollection of the event and his claim was supported by medical evidence. The defendant sought to rely on the defense of automatism but the trial judge directed the jury on insanity instead and the jury found that that the defendant was guilty by virtue of insanity.

The defendant appealed on the grounds that he should have been found not guilty by way of automatism contending that both defenses were a result of a disorder and therefore either of the defenses should be made available.

The appeal was dismissed. Because sleepwalking was a disorder that was caused by inherent or internal factors the correct defense to raise would be that of insanity and the trial judge had nor erred in his direction. The court further went on to state that while sleepwalking was common, doing violent things while sleepwalking was not.

When the defendant’s actions are caused by both internal and external factors, the jury should be directed on both insanity and automatism.

In R v Roach (2001) the defendant was suffering from an anti social personality disorder and while working as a caterer he stabbed a colleague in the hand over a missing mop. The defendant was arrested and charged.

During the trial the defendant claimed that he had no recollection of what had transpired and the fact that he was suffering from an anti social personality disorder was supported by medical evidence (internal factor).

At the time of the incident the defendant had also been drinking and taking prescribed drugs (external factors).

During the trial the judge directed the jury on insanity but did not direct the jury on automatism. The jury convicted and the defense appealed on the grounds that the trial judge did not direct the jury on the defense of automatism.

The appeal was allowed and it was held that the jury should also have been directed on the defense of automatism. Given the circumstances both defenses should have been made available to the defendant.

With regards to the defendant’s fitness to plead, and with reference to s.4 of the Criminal Procedure (Insanity) Act 1964 (unfitness to plead – s.4 only applies to those with disabilities) whether a defendant is fit to plead or otherwise is determined on a balance of probabilities i.e. the test that is used is the objective test or the reasonable man’s test.

In R v M (John) (2003) the defendant was tried on various sexual offences committed against a minor when she was aged between the ages of 8 – 10. The defendant was her grandfather. According to medical reports the defendant suffered from short term memory loss which was the result of excessive drinking over a prolonged period. The trial judge set a threshold to determine if the defendant was fit to plead, given his circumstance (if the defendant cannot understand the charges against him than he is unfit to plead see R v Pritchard (1836) and the verdict that is to be returned is not guilty by virtue of insanity 1831 (York assizes)). The jury found that the defendant was fit to plead or could understand the charges against him and convicted. The defendant appealed.

The appeal was dismissed. It was decided that the jury could find the defendant unfit to plead if the defense could establish on a balance of probabilities that the defendant was incapable of: –

1) understanding the charges against him.

2) deciding to plead guilty or otherwise

3) exercising his right to challenge jurors

4) instructing solicitors and counsel

5) following the course of proceedings

6) giving evidence

Otherwise the defendant is fit to plead.

In R v Johnson (2007) we look at the defense of insanity as it applies to those who suffer from schizophrenia and if the principle that was set in R v Windle (1952) applies or extends to paranoid schizophrenics or if an exception can be made for those who suffer from the ailment.

As per the rule in R v Windle (1952) the defense will not be made available to the defendant if the defendant knew what he was doing or had cognizance of his actions.

In R v Johnson (2007), the defendant was charged with wounding to cause grievous bodily harm (GBH) as per s18 & s20 of the Offences Against Person Act (1861). He was suffering from paranoid schizophrenia but at the trial the defense of insanity was not made available to him because medical evidence suggested that the defendant knew or was aware of what he was doing.

The defense appealed on the grounds that the defense of insanity should have been made available to the defendant and the issue at hand was whether the scope or the parameters of the defense could be widened to cover those who, despite knowing what they were doing, suffered from acute mental illnesses.

The appeal was dismissed and it was decided that the rule in R v Windle (1952) would apply. The defense would only avail itself to the defendant or be made available to the defendant, if he was not aware, through some disease of mind, of what he was doing.

For anyone who is wondering why the defendant would rather be found not guilty by way of automatism instead of not guilty by way of insanity (see R v Kemp (1957), R v Sullivan (1983), R v Hennessy (1989), R v Burgess (1991) and R v Johnson (2007)), the answer is because, if the defendant is found not guilty by way of insanity he or she may have to spend some time in a mental institution (a secure detention facility) as per s.5 of the Criminal Procedure (Insanity) Act 1964.

Whereas, if the defendant is found not guilty by way of automatism, he or she is absolved of all criminal charges and the judge is not empowered to detain the defendant in a mental institution. Therefore, whether the defendant is found not guilty by way of insanity or not guilty by way of automatism becomes crucial, to the defendant, during sentencing.

S.5 of the Criminal Procedure (Insanity) Act 1964 reads as follows:-

Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.

(1) This section applies where—
(a) A special verdict is returned that the accused is not guilty by reason of insanity; or
(b) Findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.
(2) The court shall make in respect of the accused—
(a) Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.
(1)This section applies where—
(a) A special verdict is returned that the accused is not guilty by reason of insanity; or
(b) Findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.
(2)The court shall make in respect of the accused—
(a) A hospital order (with or without a restriction order);
(b) A supervision order; or
(c) An order for his absolute discharge.
(3) Where—
(a) The offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and
(b) The court have power to make a hospital order,
The court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).
(4) In this section—
·        “hospital order” has the meaning given in section 37 of the Mental Health Act 1983;
·        “restriction order” has the meaning given to it by section 41 of that Act;
·        “Supervision order” has the meaning given in Part 1 of Schedule 1A to this Act.
A hospital order (with or without a restriction order);
(b) A supervision order; or
(c) An order for his absolute discharge.
(3) Where—
(a) The offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and
(b) The court have power to make a hospital order,
The court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

Copyright © 2019 by Dyarne Jessica Ward


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