Wednesday, 27 July 2011

Breivik - would he have a defence of insanity in English criminal law?

Trial of Daniel M'Naghten
Geir Lippestad is the Norwegian lawyer acting for Breivik. He has referred to the possibility that Breivik may plead insanity.  A short video of a media interview with Mr Lippestad is available - BBC 26th July.  In the video, Mr Lippestad says that Breivik's crimes were planned over several years.  Breivik claimed to be in a "war" and that people do not understand him but, in 60 years time, they would.   Mr Lippestad also explained why, as a lawyer in a democratic nation, he took on the task of defending Breivik.

Insanity defences: General

Most liberal legal systems recognise that criminal liability should only attach to "responsible actors."  For example, the general lack of mental development in very young children is said to render them incapable of committing a crime.  (Under age 10 in English law).  Then there are those who lack ability to reason rationally or are incapable of understanding what they are doing and the consequences of their actions.

Major problems arise in any attempt to satisfactorily define the individuals who should be excused.  Even when the stage is reached at which a particular individual should be excused liability, the fact may still remain that the individual presents a serious risk to others and may be justifiable on public protection grounds.  Article 5 of the European Convention on Human Rights permits detention of persons of "unsound mind" which has been interpreted as "true mental disorder" established by medical expertise and the disorder must be of a kind or degree warranting compulsory confinement: Winterwerp v Netherlands (1979) 2 EHRR 387.

Who then would be the actor who is not to be held responsible?  A way of looking at this is to consider the following "individuals" who in each case have performed some act prohibited by the criminal law:

Individual A - when he acted, he was in a state of impaired consciousness brought about by some mental condition or internal cause.  This person's actions are involuntary - sometimes referred to as automatism.

Individual B - when acting he was conscious but, due to his mental condition, did not know what he was doing.

Individual C - knew what he was doing but, due to mental condition, did not know it to be wrong

Individual D - knew what he was doing and knew it to be wrong but, due to mental condition, could not control himself.  Sometimes referred to as "irresistible impulse."

Individual E - knew what he was doing, knew it to be wrong but, due to some delusion, considered his actions to be appropriate.

English law: use of insanity as a defence

The English defence of insanity covers
individuals A, B and C.  A successful defence of insanity results in a special verdict of "not guilty by reason of insanity."   The defence is not argued frequently though, since the enactment of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (in force from 1st January 1992), there has been an increase in the use of the defence.  This appears to be because, under the 1991 Act, it is no longer mandatory for the judge to impose hospital detention.

The M'Naghten test

The judges laid down the insanity defence in R v M'Naghten (1843) 10 Cl & F 200.  Daniel M'Naghten believed that he was being persecuted by "Tories."  He decided to shoot Sir Robert Peel.  In the event, Peel's private secretary (Edward Drummond) was killed.  M'Naghten was acquitted having been found to be "insane."   The acquittal resulted in a public outcry and a debate in Parliament.  The judges were asked to consider the question of what amounted to insanity.

They stated:
1. Everyone is presumed to be sane and to possess a sufficient degree of reason to be responsible for their crimes until the contrary is proved.

2. To establish insanity it must be clearly proved that at the time of committing the act, the accused was "labouring under such a defect of reason, from disease of the mind, as (a) not to know the nature and quality of the act he was doing; or (b) if he did know it, not to know he was doing what was wrong.

The presumption of sanity (until the contrary is proved) places the burden of proof on the defence and the standard is "on a balance of probabilities."

Many complications arise from this formulation and a full discussion has to be left to the leading textbooks on criminal law - e.g. Smith and Hogan "Criminal Law" which is now in its 12th edition. A further good analysis of the law is in "Textbook on Criminal Law" by Michael Allen- 11th Edition, June 2011.   The following key points arise from the case law:

  • Insanity is concerned with the time of the alleged offence.  This distinguishes it from the issue of "fitness to plead."
  • The M'Naghten test is a LEGAL test and is not based on medical analysis of mental disorder.  However, expert medical evidence will usually be required.
  • The burden of proving insanity is on the defence since a person is presumed sane until the converse is proved.  The defence might directly raise the question of insanity though cases have arisen in which the conduct of the defence has placed the defendant's mental condition in issue.  Either the trial judge or the prosecution may raise the point that the defence amounts in law to a defence of insanity.
  • "Disease of the mind" is not a medical term.  It refers to the mental faculties of reason, memory and understanding - see the case of Sullivan [1984] AC 156.  It does not matter whether the impairment is organic (e.g. epilepsy) or functional, or whether the impairment is itself permanent or is transient and intermittent, provided that it subsisted at the time of the commission of the act.  In a number of actual cases, there have been particular medical conditions - e.g. arteriosclerosis, epilepsy, diabetes etc. - but the law is not confined to such organic conditions.
  • The "disease of the mind" must have led to a defect or reason such that the conduct comes within either 2a or 2b of the M'Naghten rules.
  • Limb 2a refers to "Nature and quality of the act."  This means the "physical quality" of the act and not its moral character.
  • Limb 2b refers to knowledge of "wrong."  Strictly, it has been held that "wrong" means legally wrong and not "wrong" by the lights of reasonable opinion: R v Windle [1952] 2 QB 826 (Court of Criminal Appeal) and confirmed in R v Dean Johnson [2007] EWCA Crim 1978.    In practice, it may be that the law is not always being applied so strictly.  Special verdicts have certainly been allowed where the defendant knew his act to be legally wrong but where he did it under some delusion which made him believe that his actions were morally right.  The High Court of Australia refused to follow R v Windle - see R v Stapleton (1952) 86 CLR 358.
Criticism and reform:

    The M'Naghten rules have been the subject of extensive criticism especially since they do not rest on medical knowledge of mental disorder.  In this sense, the rules are out of kilter with, for example, the law on mental health - Mental Health Act 1983 (as amended by the Mental Health Act 2007).  A further problem is that applying the rules has resulted in some absurd distinctions in cases involving diabetics and driving of vehicles.

    Proposals to reform the rules have, so far, met without success.  The Butler report of 1975 made 140 recommendations.  The Law Commission's Draft Criminal Code abandoned the M' Naghten rules and used terms such as "mental disorder" or "severe mental illness" or "severe mental handicap."  [See Law Com 177, 1989 - "A Criminal Code for England and Wales" - Vol. 2].


    Interestingly, M'Naghten himself would not have been acquitted on a strict application of the test which now carries his name.  Despite his delusion, he knew that he was killing another person and he knew this was wrong in any sense of the word "wrong."

    The conduct of Breivik shows a degree of planning over a number of years.  First, no "disease of the mind" has, so far, been suggested.  The cases show that these are normally physical or mental health conditions which give rise to defective reasoning.  Secondly, it certainly seems that he was aware of the nature and quality of his acts (making and planting a bomb, use of guns to kill people) and that he knew it to be wrong in the legal sense.  It would also seem that he knew that most people would consider his actions to be wrong in any other reasonable interpretation of the word.  He may be seeking to justify his actions by claiming that he was "at war" and that his actions were necessary to save Norway from problems which might arise from immigration.  It is submitted that this would not offer a defence of insanity in English law.

    Link of interest:   Many "common law" jurisdictions based their law on the M'Naghten case.  In the USA, the Hinckley verdict resulted in some changes to the law on insanity as a defence.  For New Zealand see the Crimes Act 1961 s.43

    US College Search - Breivik and the insanity defence

    Diminished responsibility:  In English law, this is a partial statutory defence to a charge of murder and has to be distinguished from a defence of insanity.   If successfully argued, diminished responsibility reduces the conviction to one of manslaughter.   From 4th October 2010, the law of diminished responsibility was amended - see The law of murder: implementation of further reforms.

    Strict Liability offences:  There is authority that insanity cannot be a defence to offences of strict liability: DPP v Harper [1997] 1 WLR 1406 (excess alcohol) where McCowan LJ stated that insanity can be a defence in the Magistrates' Court, but only if the offence charged is one in which mens rea is an element.

    Addendum 25th August - more historical background:   A defence of insanity has been available in English criminal law for centuries.  The principle that it wrong to punish mentally disordered persons was recognised far back in our legal history.  Even Lord Coke CJ wrote - "The execution of an offender is for example, but so it is not when a madman is executed; that should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others."  

    In 1800, a notable treason trial took place of one James Hadfield who had fired a gun at King George III.  Under the law of the day, a treason charge entitled the defendant to two defence lawyers one of whom was Thomas Erskine who was considered to be the finest advocate of his day.  Some say the finest advocate of all time but 18th century courtroom style was a far cry from modern practice.   Erskine successfully argued that Hadfield was insane and, using old vagrancy laws, the judge (Lord Kenyon) ordered him to be detained.  Erskine had established a broad principle that those who commit crimes under the influence of delusions are not responsible in law.  Hadfield's delusion was that he was destined to be killed by others.  This led to the Criminal Lunatics Act 1800 which provided for indefinite hospitalisation.

    It may well be that this more enlightened development of the law suffered a severe setback as a result of the M'Naghten case 1843.  The judiciary seem to have succumbed to political pressures resulting from M'Naghten's acquittal on grounds of insanity.  Queen Victoria stated that M'Naghten was "not in the least mad."  The judges restated the law of insanity and their statement has been taken to be law ever since though, strictly, such an opinion is not a binding precedent.  The M'Naghten rules abandoned Erskine's principle that a defendant is not criminally liable for an act committed when in a delusional state stemming from disease of the mind.  Under the M'Naghten test, the disease had to be so severe that the defendant did "not know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong."  As Geoffrey Robertson QC pointed out in "Freedom, the Individual and the Law" (7th ed; 1993 at p.434) - "Seen in historical context, the M'Naghten rules were in fact designed to hang future M'Naghtens.  The assassins ability to make careful preparations and penetrate the security around public figures requires an intelligence which, however disordered, must apprehend the illegality of the action.  Judged in the light of our contemporary knowledge, the rules are based on the erroneous belief that if an ability to reason exists, it can control behaviour ..."


    1. It is difficult for the normal observer to think of this man as insane. His actions were undertaken to further a particular world view, that view may be objectionable but it is not irrational. Within that framework one can see a logic in his behaviour. And yet, and yet, his actions are so monstrous as to go beyond what any normal person could countenance as being a sane way of pursuing those goals. I think the nearest analogy is with the terrorist who thinks indiscriminate violence is a valid way of achieving an outcome. Normally the question of sanity does not arise, even in so an extreme a case as Sept 11th.

    2. Underlying much of the criminal law are various often unstated policy considerations. The law would wish to excuse from liability those who genuinely could not help what they did. However, there are those who act purposively but for reasons which are well outside the usual spectrum of reasoning adopted by the majority of rational human beings. The latter deserve punishment - in my view.

      Not all would agree. Take M'Naghten himself. Under the test he would not be insane. (At least not if the test were applied strictly). He acted under an delusion that he was being persecuted by Tories. Some describe this as paranoia. The delusion did not prevent him from knowing that he was killing a person and from knowing that it was wrong. However, some would argue that he did not deserve punishment though,as always, the public might need to be protected from him.

      A further complicating set of cases refer to "automatism." I do not see Breivik as being an "automaton" so I did not discuss this in the main post. Automatism could arise from causes external to the defendant. It could also arise from internal causes such as disease affecting the working of the mind. I may look at these interesting cases in a later post.

      It was Breivik's lawyer saying raising the possibility of insanity which triggered me to write the post. Just what the exact test for this would be in Norwegian criminal law is not clear to me. Their Penal Code states that a person who was "psychotic or unconscious" at the time of committing an act shall not be liable to a penalty - section 44. Prevetive detention is possible under section 39c.