tag:blogger.com,1999:blog-6110794854146484721.post8212735774243945890..comments2024-03-28T09:08:50.733+00:00Comments on Law and Lawyers: Breivik - would he have a defence of insanity in English criminal law?ObiterJhttp://www.blogger.com/profile/04544226917595022902noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-6110794854146484721.post-76033782506914532392011-07-29T10:07:01.672+01:002011-07-29T10:07:01.672+01:00Underlying much of the criminal law are various of...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.<br /><br />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.<br /><br />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.<br /><br />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.ObiterJhttps://www.blogger.com/profile/04544226917595022902noreply@blogger.comtag:blogger.com,1999:blog-6110794854146484721.post-28910274902338194322011-07-28T08:42:25.541+01:002011-07-28T08:42:25.541+01:00It is difficult for the normal observer to think o...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.Anonymousnoreply@blogger.com