Disease of the mind

This case should be contrasted with that of Hennessy (1989).

CASE EXAMPLE

Hennessy (1989) 1 WLR 287

D, a diabetic, had forgotten to take his insulin. He suffered what is known medically as hyperglycaemia (high blood sugar). In this condition he was seen by police officers driving a car that had been reported stolen. D was charged with two counts of taking a motor vehicle without consent and driving a motor vehicle while disqualified. D testified that he could not remember taking the car and driving it away. The trial judge declared that the evidence supported a defence of insanity. D changed his plea to guilty and appealed. However, distinguishing Quick, the Court of Appeal confirmed that hyperglycaemia was caused by an internal factor, namely diabetes, and was therefore a disease of the mind. The correct verdict was insanity.

Two criticisms may be made here.

A relatively common medical condition (diabetes) is regarded by the criminal law as supporting a defence of insanity, with all the negative implications that that label conveys.

This is only the case in certain situations, namely when D suffers hyperglycaemia.

According to the Diabetes UK website, over 2.6 million people in the United Kingdom have been diagnosed with diabetes (and another 1/2 million people are estimated to have the condition without realising it). Does the decision in Hennessy mean that over 3 million people in the United Kingdom are legally insane? For more information refer to the ‘Internet links’ section at the end of this chapter. The problem associated with diabetes is not the only one created by the decision in Quick. According to the House of Lords, epileptics who suffer grand mal seizures and inadvertently assault someone nearby are also to be regarded as insane. This was seen in two cases: Bratty (1963) and Sullivan (1984).

CASE EXAMPLE

Sullivan (1984) AC 156

;D had suffered from epilepsy since childhood. He occasionally suffered fits. One day he was sitting in a neighbour’s flat with a friend, V. The next thing D remembered was standing by a window with V lying on the floor with head injuries. D was charged with assault. The trial judge ruled that the evidence that D had suffered a post-epileptic seizure amounted to a disease of the mind. To avoid hospitalisation, D pleaded guilty and appealed. Both the Court of Appeal and House of Lords upheld his conviction.

JUDGMENT

‘It matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of the commission of the act. The purpose of the … defence of insanity … has been to protect society against recurrence of the dangerous conduct. The duration of a temporary suspension of the mental faculties … particularly if, as in Sullivan’s case, it is recurrent, cannot … be relevant to the application by the courts of the M’Naghten Rules.’

According to the Epilepsy Action website, 456, 000 people in the United Kingdom have epilepsy (this corresponds to one in every 131 people). In the event that any one of these people commits the actus reus of a crime, are they to be regarded as legally insane too? For more information, refer to the ‘Internet links’ section at the end of this chapter. Thus, diabetics (sometimes) and epileptics are regarded as ‘insane’ by English criminal law. What about someone who carries out the actus reus of a crime, such as assault, while sleepwalking? This was a question for the Court of Appeal in Burgess (1991) 2 QB 92. There was a persuasive precedent for deciding that this amounted to automatism (Tolson (1889) 23 QBD 168), but the Court of Appeal held that, after Quick (1973) and Sullivan, it had to be regarded as insanity. Lord Lane CJ stated that sleepwalking was ‘an abnormality or disorder, albeit transitory, due to an internal factor’.

CASE EXAMPLE

Burgess (1991) 2 QB 92

D and his friend, V, were in D’s flat watching videos. They both fell asleep but, during the night, D attacked V while she slept, hitting her with a wine bottle and a video recorder. She suffered cuts to her scalp which required sutures. To a charge of unlawful wounding contrary to s 20 OAPA 1861, D pleaded automatism, but the trial judge ruled he was pleading insanity and the jury returned the special verdict. The Court of Appeal dismissed D’s appeal.

According to a study carried out in Finland involving over 11, 000 people, some 4 per cent of women and 3 per cent of men sleepwalk (C Hublin et al., ‘Prevalence and Genetics of Sleepwalking’ (1997) 48 Neurology 177). With the UK population in excess of 59 million, this equates to approximately 2 million sleepwalkers in the United Kingdom alone. It is useful to note at this point that in Canada (which also uses the M’Naghten Rules), the Supreme Court has diverged from English law on this point. In Parks (1992) 95 DLR (4d) 27, D had carried out a killing and an attempted killing whilst asleep. However, the Supreme Court found that his defence was automatism. During the trial the defence had called expert witnesses in sleep disorders, whose evidence was that sleepwalking was not regarded as a neurological, psychiatric or any other illness, but a sleep disorder, quite common in children but also found in 2–2.5 per cent of adults. Furthermore, aggression while sleepwalking was quite rare and repetition of violence almost unheard of. Using this evidence, the Canadian Chief Justice, Lamer CJC, said that ‘Accepting the medical evidence, [D’s] mind and its functioning must have been impaired at the relevant time but sleepwalking did not impair it. The cause was the natural condition, sleep.’

CASE EXAMPLE

T (1990) Crim LR 256

D had been raped three days prior to carrying out a robbery and causing actual bodily i harm. She was diagnosed as suffering post-traumatic stress disorder, such that at the time of the alleged offences she had entered a dissociative state. The trial judge allowed automatism to be left to the jury, noting that ‘such an incident could have an appalling I effect on any young woman, however well-balanced normally’.

In Canada, meanwhile, a plea of dissociation was regarded as one of insanity. The difference was that in that case, the traumatic events leading up to the alleged dissociative state were much less distressing. In Rabey (1980) 114 DLR (3d) 193, D had developed an attraction towards a girl. When he discovered that she regarded him as a ‘nothing’, he hit her over the head with a rock and began to choke her. He was charged with causing bodily harm with intent to wound, and pleaded automatism, based on the psychologically devastating blow of being rejected by the girl. The trial judge accepted that D had been in a complete dissociative state. The prosecution doubted that D was suffering from such a state (the reality being that he was in an extreme rage) but that if he were then his condition was properly regarded as a disease of the mind. The trial judge ordered an acquittal based on automatism, but the appeal court allowed the prosecution appeal. The Supreme Court of Canada upheld that decision — the defence was insanity.

To summarise the law on ‘disease of the mind’, the following conditions have been held to support a plea of insanity (in England):

arteriosclerosis (Kemp (1957))

epilepsy (Sullivan (1984))

hyperglycaemia (high blood sugar: Hennessy (1989)) but not hypoglycaemia (low blood sugar: Quick (1973))

sleepwalking (Burgess (1991))

And in Canada, post-traumatic stress disorder caused by a relatively mundane event such as rejection by a prospective girlfriend (Rabey (1980)). In Australia, meanwhile, although the M’Naghten Rules have been adopted there, the internal/external factor test in Quick has not. In Falconer (1990) 171 CLR 30, Toohey J described the internal/external factor theory as ‘artificial’ and said that it failed to pay sufficient regard to ‘the subtleties surrounding the notion of mental disease’. In Australia, therefore, the distinction between insanity and automatism is found by identifying whether D’s mental state at the time of the actus reus was either

‘the reaction of an unsound mind to its own delusions, or to external stimuli, on the one hand’, which is insanity or

‘the reaction of a sound mind to external stimuli including stress-producing factors on the other hand’, which is automatism.

ACTIVITY

Applying the law

Nature and quality of the act

It seems there will be a good defence provided that when D acted he was not aware of, or did not appreciate, what he was actually doing, or the circumstances in which he was acting, or the consequences of his act. D’s lack of knowledge must be fundamental. Two famous old examples used to illustrate this point are

D cuts a woman’s throat but thinks (because of his ‘defect of reason’) that he is cutting a loaf of bread.

D chops off a sleeping man’s head because it would be amusing to see him looking for it when he wakes up.

Obviously, in both these situations D does not know what he is doing and is entitled to the special verdict. If, on the contrary, D kills a man whom he believes, because of a paranoid delusion, to be possessed by demons, then he is still criminally responsible and not insane — his delusion has not prevented him from understanding that he is committing murder.

The act was wrong

What is meant here by ‘wrong’? Does it mean wrong as in ‘contrary to the criminal law’ or wrong as in ‘morally unacceptable’ — or perhaps both? In M’Naghten (1843) the Law Lords said that if D knew at the time of committing the actus reus of a crime that he ‘was acting contrary to law; by which expression we understand your lordships to mean the law of the land’, then he would not have the defence. This clearly suggested D will have the defence if he does not realise that he is committing a crime. The Court of Criminal Appeal in Windle (1952) 2 QB 826 confirmed this view of the word ‘wrong’. D had poisoned his wife and, on giving himself up to the police, said, ‘I suppose they will hang me for this?’ Despite medical evidence for the defence that he was suffering from a medical condition known as folie à deux, this statement showed that D was aware of acting unlawfully. D was convicted of murder. Lord Goddard CJ said:

JUDGMENT

‘Courts of law can only distinguish between that which is in accordance with law and that which is contrary to law … The law cannot embark on the question and it would be an unfortunate thing if it were left to juries to consider whether some particular act was morally right or wrong. The test must be whether it is contrary to law … [T]here is no doubt that in the M’Naghten Rules “wrong” means contrary to the law, and does not have some vague meaning which may vary according to the opinion of one man or of a number of people on the question of whether a particular act might or might not be justified.’

In Johnson (2007) EWCA Crim 1978, the Court of Appeal was invited to reconsider the decision in Windle. However, although the court agreed that the decision in Windle was ‘strict’, they felt unable to depart from it, believing that, if the law was to be changed, it should be done by Parliament.

CASE EXAMPLE

Johnson (2007) EWCA Crim 1978

D suffered from delusions and auditory hallucinations. One day, armed with a large kitchen knife, he forced his way into V’s flat and stabbed him four times (fortunately, V recovered). Following his arrest, D was assessed by two psychiatrists who diagnosed him as suffering from paranoid schizophrenia. They agreed that D knew that his actions were against the law; however, one psychiatrist asserted that D did not consider what he had done to be ‘wrong in the moral sense’. The trial judge declined to leave the insanity defence to the jury, and D was convicted of wounding with intent. He appealed, but the Court of Appeal upheld his conviction.

Latham LJ stated:

JUDGMENT

‘The strict position at the moment remains as stated in Windle … This area, however, is a notorious area for debate and quite rightly so. There is room for reconsideration of rules and, in particular, rules which have their genesis in the early years of the 19th century. But it does not seem to us that that debate is a debate which can properly take place before us at this level in this case.’

In Stapleton (1952) 86 CLR 358, the High Court of Australia refused to follow Windle. That Court decided that morality, and not legality, was the concept behind the use of ‘wrong’. Thus in Australia the insanity defence is available if ‘through the disordered condition of the mind [D] could not reason about the matter with a moderate degree of sense and composure’. The same is true in Canada. In Chaulk (1991) 62 CCC (3d) 193, D had been charged with murder. Medical evidence showed that he suffered paranoid delusions such that he believed he had power to rule the world and that the killing had been a necessary means to that end. D believed himself to be above the law (of Canada). Finally, he deemed V’s death appropriate because he was a ‘loser’. The Supreme Court stated that ‘It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by reason of a disease of the mind, believes that it would be “right” according to the ordinary standards of society to commit the crime in a particular context. In this situation, [D] would be entitled to be acquitted by reason of insanity.’

The difficulty of distinguishing between an impulse caused by insanity, and one motivated by greed, jealousy or revenge

The view that the harder an impulse is to resist, the greater is the need for a deterrent

In 1953 the Royal Commission on Capital Punishment suggested, as an alternative to replacing the Rules altogether, adding a third limb, ie that D should be considered insane if at the time of his act he ‘was incapable of preventing himself from committing it…’. This was not taken up. However, irresistible impulse may support a defence of diminished responsibility (Byrne (1960) 2 QB 396). Thus, if D is charged

Figure 9.1 Insanity

‘When the cause assigned is concussion or sleep-walking, there should be some evidence from which it can reasonably be inferred before it should be left to the jury. If it is said to be due to concussion, there should be evidence of a severe blow shortly beforehand. If it is said to be sleep-walking, there should be some credible support for it. His mere assertion that he was asleep will not suffice.’