‘All the Wrong I Did, I Here Proclaim was Madness’: The Defence of Insanity and its

‘ALL THE WRONG I DID, I HERE PROCLAIM WAS MADNESS’: THE DEFENCE OF INSANITY AND ITS MODERN CHALLENGES

Jénovie Massala

Introduction

Through the study and comparison of three jurisdictions’ approach to the insanity defence, this article will try to gauge the pertinence of the criticisms directed towards the defence of inanity. The definitions of the defence will be compared, then the focus will shift to the role of juries in such cases before concluding with the reforms proposed by critics of the defence of insanity. Scholars have argued that putting the criminally insane in a category which exonerates them of their actions implies that the ‘mentally ill don’t differ from the mentally healthy merely by degree, but in kind.’1 The following debate regarding the pertinence of the defence ensues: once the actus reus has been established, how should courts approach cases regarding insanity while promoting a universal application of the law which takes into account insanity? The traditional analysis of criminal liability starts by the drawing of a sharp line between the mens rea and the actus reus.2 This line is sharpened in cases where a defence of insanity is at issue. Tracy J’s ‘wild beast test’3 embodies the criticisms raised by the insanity defence which narrowly focuses on cognitive impairment and neglects the defendant’s ability to control their behaviour.4 This has sparked criticism, embodied by the UN Convention on the Rights of Persons with Disabilities which argues that the defence of insanity promotes inequality before the law.5

Differing Legal Definitions of Insanity

Ireland, France and Sweden have statutory definitions of insanity. In Ireland, the M’Naghten6 rules inspired the Criminal Law (Insanity) Act 2006. This states that the

1 Arlie Loughan, ‘Mental Incapacity Doctrines in Criminal Law’ (2012) 15(1) New Criminal Law Review. 2 Peter Brett, Inquiry into Criminal Guilt (1963, Halstead Press) ch 4. 3 Rex v Arnold (1724) 16 How. St. Tr. 765. 4 Rita James Simon and Heather Ahn-Redding, The Insanity Defense: The World Over (Lexington Books 2006). 5 Piers M Gooding and Tova Bennet, ‘The Abolition of the Insanity Defense in Sweden and the United Nations Convention on the Rights of Persons with Disabilities: Human Rights Brinkmanship or Evidence It Won't Work?’ (2018) 21(1) New Criminal Law Review 141. 6 R v M’Naghten [1843] 4 St Tr (ns) 817.

accused must be suffering at the time of a mental disorder,7 didn’t know the nature or quality of the act, didn’t know what they were doing was wrong or was unable to refrain from the act to be not guilty by reason of insanity.8 The wording of the verdict implies that by virtue of their insanity, the accused is void of guilt. However, this test doesn’t reflect the nuances of mental illness and promotes the inequality which many jurists criticise. Mental illness does not necessarily void the perpetrators from criminal intent, as the Swedish definition implies.9

The Swedish Penal Code defines insanity as a result of a serious mental disturbance which reduced the accused’s capacity to realise the implications of the act, to adapt their conduct accordingly, or a mental disturbance, which reduced their capacity to control their conduct.10 However, guilt is preserved because ‘no causal connection is recognized between mental illness and crime as exempting offender from penal law sanctions’11 such as a criminal record or liability for damages. Nonetheless, their liability varies depending on the degree of insanity.12

France recently widened the definition of insanity from a purely medical one in Sarah Halimi.13 Statute only defines those who were suffering from a mental illness at the time of the crime which abolished their capacity to discern as criminally irresponsible.14 A mere alteration of capacity amounts to criminal responsibility.15 This definition seems to perfect the Irish one in its distinction between degrees of mental illness which restricts a lack of criminal responsibility to those who suffer from severe mental illness. However, a lack of accountability can still be observed due to the criminally insane being stripped of criminal responsibility. The French definition seems to ignore cases when the actus reus implies that the accused may have intended the crime, such as in Halimi16 where the antisemitic defendant tortured and defenestrated the Jewish victim.

7 Criminal Law (Insanity) Act 2006, s.5(1). 8 ibid, s5(2). 9 Christer Svennerlind, Thomas Nilsson, Nóra Kerekes, Peter Andiné, Margareta Lagerkvist, Anders Forsman, Henrik Anckarsäter and Helge Malmgren, ‘Mentally disordered criminal offenders in the Swedish criminal system’, (2010) 33 International Journal of Law and Psychiatry 220. 10 Swedish Penal Code 1965, chapter 23.3.2. 11 Svennerlind et al (n 9). 12 ibid. 13 Cass. crim 14 avril 2021, n°20-80.135. 14 Code Pénal Français, article 221-1. 15 ibid. 16 Cass. crim 14 avril 2021, n°20-80 135.

The complexity of mental illnesses in addition to the difficulty of garnering accurate medical expertise makes it difficult to define insanity. Medical expertise is therefore essential. In Sweden, the prosecution and offender can ask for an investigation under s7 of the Personal Examination in Criminal Cases Act and only psychiatrists from the National Board of Forensic Medicine can make a diagnosis.17 Similarly, France’s national board of psychiatrists’ medical expertise is used in criminal cases. Only Ireland has not clearly defined whose medical expertise can be relied on, which has resulted in conflicts between psychiatrists as to the degree of insanity. In DPP v Yusuf Ali Abdi, 18 the jury based its assessment on the minority view despite the majority of the psychiatrists declaring insanity. The contrasting conclusions drawn by the prosecution and defence’s psychiatrists may have induced the jury into committing a miscarriage of justice.

The Court of Public Opinion

Internment in treatment facilities of criminals upon successful pleas of insanity are difficult for the public to accept.19 Sanism and pretextuality often result in a rejection of psychodynamic factors in explanations of criminal behaviour and emphasise a culture of punishment. Consequently, juries are increasingly defiant in Ireland, as DPP v Alchimonek exemplifies.20 The jury ignored judicial guidance and evidence of the accused’s fragile mental state resulting in an initial failure of the defence. This was quashed by the Court of Appeal who deemed it a miscarriage of justice due to the uncontested declaration of insanity by medical experts. Dependence on a jury for a final decision in such cases decreases the chance of an acquittal because the accused is no longer tried by a court of law, but the court of public opinion. The defence seems therefore less effective.

The conflict between judges and the jury is a minor issue in Sweden as is the possibility of a miscarriage of justice because the judge is the sole decision-maker.21 However, the lack of a jury may make the decision less acceptable to the public. France seems to have

17 ibid. 18 The People at the Suit of the Director of Public Prosecutions v Yusuf Ali Abdi [2021] IECA 237. 19 Michael L Perlin, The insanity defense. The hidden prejudice: Mental disability on trial (1st edn, American Psychological Association 2000). 20 DPP v Alchimionek [2019] IECA 49. 21 The Swedish Prosecution Authority, ‘From Crime to Sentence’, https://www.aklagare.se/en/from-crime-to-sentence/trial/ last accessed 22/01/2022. 113

found an entente whereby the jury deliberates with the judges and the resulting majority vote constitutes the decision.22 This method conserves the sovereignty of judges and recognises their legal expertise while guarding the public element necessary to facilitate the acceptance of criminal decisions. In addition, unlike Irish judges, French and Swedish judges are only bound to statute leaving no place for a judge’s individual opinion to flourish in areas where the law is explicit.23

The Culture of Punishment Put to The Test

Unlike in Ireland and France where the criminally insane aren’t convicted, insanity in Sweden is a mitigating factor which impacts the severity and duration of the punishment. However, in all three jurisdictions the criminally insane are interned in treatment facilities instead of prisons.24 In Ireland, the detention of the criminally insane is currently in the Central Mental Hospital25 after an order of committal for treatment26 whereas in Swedish and French law, no such specification exists. However, Sweden has fostered a preference for internment in treatment facilities since the 2008 revision of the penal code for treatment facilities.27 This allows judges to imprison offenders who need limited psychiatric care, purposefully caused their insanity, or committed a highly culpable crime.28 Imprisonment despite a mental illness is therefore still possible.

In France, detention is known as a ‘mesure de sûreté’ and includes regular medical examinations of the extent of the accused’s insanity.29 This avoids the scrutiny which Irish detainment mechanisms faced in Ellis v DPP.30 The accused was given temporary release on numerous occasions during a three-year period due to his application for release on the grounds of a lack of evidence pertaining to his insanity. The lack of an independent committee to review the detention of the defendant in Ireland has been

22 Vie Publique, Qu’est-ce qu’un juré d’assises? (last modified: 3rd May 2021) <https://www.vie-publique.fr/fiches/38246-quest-ce-quun-jure-dassises> last accessed 07 February 2022. 23 France: Code civil, article 4; Sweden: The Instrument of Government 1974, Chapter 11 article 5. 24 Swedish Penal Code, chapter 30.6.2; Loi n° 2008-174 du 25 février 2008; Criminal Law (Insanity) Act 2006, s.4(6)(a). 25 Peter Charleton, Paul McDermott, Ciara Herlihy and Stephen Byrne, Charleton & McDermott’s Criminal Law and Evidence (2nd edn, Bloomsbury Professional, 2020) ch 24. 26 Criminal Law (Insanity) Act 2006, s.4(6)(a). 27 Svennerlind et al. (n 9). 28 ibid. 29 Loi n° 2008-174 du 25 février 2008. 30 Ellis v DPP [1990] 2 IR 291.

criticised because statute doesn’t impose a definite release date after a conviction.31 Finlay J argues that this endangers the dignity of the accused because the mentally insane should only be detained provided the court is satisfied that their illness persists in a way that is necessary for the protection of others or themselves.32

The Need for Reform

The Swedish approach to insanity stands out as the most balanced as it retains the accountability of the accused and recognises the variety of mental illnesses through punishments depending on the degrees of insanity. However, this definition is incompatible with the Rome Statute which excludes criminal liability in cases of mental illness33 similarly to France and Ireland. Therefore, Sweden’s approach to criminal insanity is contradictory; why agree to an exclusion of criminal responsibility in international criminal matters but not in domestic ones?

This confusion underpins calls for reform in all three jurisdictions. For example, the inclusion of an independent review board is considered a human rights obligation.34 Bournewood 35 affirmed this by requiring states to have an independent system to review the lawfulness of the detention of mentally unwell persons.36 Other reforms include punishing mentally ill repeat offenders with imprisonment or imprisoning all guilty offenders but offering psychiatric help to those who are deemed mentally ill. The recent reform in France aims to reduce the insanity plea to those who do not provoke their psychosis if that psychosis resulted in a total lack of discernment.37 Meanwhile, the debate regarding the dangers of jury convictions of undisputed insanity in Ireland since Alchimonek38 prove that the law is sensitive to the general public’s fears while trying to balance the right to liberty of ill individuals.

31Charleton et al. (n 25). 32 The People v. O'Mahony [1985] IR 517 at p. 522 33 Rome Statute, article 31.1.a. 34 European Convention on Human Rights, art. 5(4). 35 HL v United Kingdom (2005) 40 EHRR 32. 36 Charleton et al (n 25). 37 Simon Barbarit, ‘Irresponsabilité pénale : la loi définitivement adoptée par le Parlement’ (16/12/2021) Public Sénat) <https://www.publicsenat.fr/article/parlementaire/irresponsabilitepenale-la-loi-definitivement-adoptee-par -le-parlement-191636> last accessed 20/01/2022. 38 DPP v Alchimionek [2019] IECA 49.