Insanity

The Law

The common law defence of insanity is available for any offence and may be raised by the defence, prosecution or the judge. Once raised, the burden of proof is on the defence, with the standard being on the balance of probabilities. It requires the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved.

The question of insanity at the time of the offence is determined by application of the M’Naghten rules (M’Naghten’s Case (1843) 10 Cl & F 200). To establish the defence of insanity, it must be clearly proved that, at the time of committing the act, the suspect was labouring under such a “defect of reason“, from a “disease of the mind“, as

not to know the nature and quality of the act being done, or,
that the suspect did not know what was being done was wrong

Where a defendant is found to be insane but to have done the act, a special verdict of ‘not guilty by reason of insanity’ under section 2 of the Trial of Lunatics Act 1883 is given. What follows is not a ‘sentencing’ but rather a ‘disposal’, which is limited to:

A hospital/guardianship order, with or without a restriction order
A supervision order
Absolute discharge

Case Law and Key Judgements

“Defect of reason”

Not mere absent-mindedness: R v Clarke [1972] 1 All ER 219

Clarke was charged with theft after she walked out of a supermarket with items she had not paid for. Her defence was that she had no intent to steal, but had placed the items in her bag in a moment of absent mindedness. A GP and a psychiatrist confirmed a diagnosis of depression and spoke to its impact on her “absent mindedness”. The judgement concluded, “The McNaughton rules relate to accused persons who by reason of a disease of the mind are deprived of the power of apply reasoning. They do not/and never have applied to those who retain the power of reasoning but who in moments of confusion or absent-mindedness fail to use their powers to the full.”

“Disease of the mind”

This has been interpreted to mean any disease that may affect mental functioning.

A physical cause is as good as a psychiatric one (arteriosclerosis): R v Kemp (1957) 1 QB 399

“It does not matter for the purposes of law, whether the defect of reason is due to a degeneration of the brain or to some other form of mental derangement. That may be a matter of importance medically, but it is of no importance to the law, which merely has to consider the state of mind in which the accused is, not how he got there.”

It can be short-lived (epilepsy): Bratty v A-G for NI [1963] AC 386; R v Sullivan [1984] AC 156

“The purpose of the legislation relating to the defence of insanity, ever since its origin in 1800, has been to protect society against the recurrence of the dangerous conduct. The duration of a temporary suspension of the mental faculties of reason, memory and understanding, particularly if, as in the appellant’s case, it is recurrent, cannot on any rational ground be relevant to the application by the Courts of the McNaghten Rules, though it may be relevant to the course adopted by the Secretary of State, to whom the responsibility for how the defendant is to be dealt with passes after the return of the special verdict of “not guilty by reason of insanity“

Excludes external causes:

Including medication (R v Quick [1973] 3 WLR 26) and substance use (R v Coley, McGhee & Harris [2013] EWCA Crim 223). Instead, these may form the basis of a defence of non-insane automatism.

“Nature and quality”

Put simply, “he did not know what he was doing”: R v Sullivan [1984] AC 156

Unfortunately, there are no law reports to illustrate how this may operate successfully. It is most often related to the mens rea of the crime (Loake v CPS [2017] EWHC 2855): for example, The woman who squeezes her husband’s throat believing she is strangling a deadly snake does not have the mens rea for murder, because she lacks the necessary intention to kill or cause really serious harm: Glanville Williams, Textbook of Criminal Law (4th Edn by Dennis J. Baker), para 30-016.

Some appeals appear to accept the case without specifying the limb satisfied: Oye [2013] EWCA Crim 1725

Oye was found in the staff room of a coffee shop and confronted by the manager. Due to Oye’s strange behaviour, the police were called. Oye hid in a void in the ceiling and threw various items at the police before being detained and charged with affray. Whilst in police custody, he attacked multiple police officers, constituting GBH and a second charge of affray. He described believing he had superpowers and could escape, and that the police were evil, with demon faces.

One psychiatrist opined Oye did not know the nature and quality of the act, a second that he knew neither the nature and the quality, nor that what he was doing was wrong. Both agreed he was psychotic. Despite the uncontested nature of the psychiatric evidence, the jury convicted Oye of all charges.

The defences of insanity and self-defence were raised. The Crown did not dispute the former, but did the latter. At appeal, self-defence was dismissed, (see self-defence), but a finding of insanity was accepted. However, it did not reveal which limb was satisfied or how.

“Wrong”:

Unlawful, not morally wrong: R v Windle [1952] 2QB 826

Windle killed his wife due to her being suicidal. On arrest, he said to the police “I suppose they will hang me for this”. The trial judge did not allow the defence of insanity to be put before the jury, as Windle had demonstrated what he was doing was unlawful. The appeal was dismissed as it was found that ‘wrong’, for the purposes of the M’Naghten rules, meant unlawful, not morally wrong.

Confirmed ‘wrong’ means contrary to the law: R v Johnson [2007] EWCA Crim 1978

Johnson forced his way into his neighbour’s flat with a knife, stabbed him in the shoulder causing severe injuries, then left. Johnson then went to a friend’s house, still carrying the knife, and sought to gain entry. He was shouting and swearing and accusing the friend of “noncing my sister”. The father of the friend calmed him to the extent Johnson left. Two days earlier, the friend had seen Johnson in the cemetery holding a knife and thrashing at shrubs; on being asked what he was doing, Johnson said an Indian man in a shop had been “noncing my sister”.

Psychiatrists agreed he had paranoid schizophrenia and was responding to delusions about people “noncing” his sister. They agreed he knew the nature and quality of the act being done and that it was against the law, but one psychiatrist was of the opinion Johnson did not consider what he had done to be wrong in the moral sense.

The appeal was dismissed due to the position that ‘wrong’ means contrary to the law.

However, the judgement ends with an intriguing statement, indicating dissatisfaction with the law but reluctance to reinterpret it at court level: –

“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.”

Delusional compulsion is insufficient: R v Keal [2022] EWCA Crim 341

Keal appealed on the basis that the insanity defence should have been available to someone whose delusion was such that he was compelled to perform the act or was powerless to prevent it. It was concluded the M’Naghten rules do not include an element reflecting a lack of capacity to control one’s actions, i.e. the irresistible impulse. Therefore, the defence of insanity was not available to a defendant who, although he knew what he was doing was wrong, he believed that he had no choice but to commit the act in question.

The judgement also made clear any such changes to the interpretation of the existing law should be made by Parliament, not the Court of Appeal.

Instruction by God does not make it right if the defendant still knew it was illegal: R v Bell 1984 Crim. LR 685

Bell was convicted of reckless driving, having smashed his way through the gates at a Butlins’ holiday camp. When interviewed, he told the police, “It was like a secret society in there, I wanted to do my bit against it”. The appeal was dismissed as he still knew his act to be illegal, even if he believed he was instructed by God to do it.

It is available even if the mental element of the offence is an objective test: Loake v DPP [2017] EWHC 2855

Loake was convicted of harassment and appealed based on a defence of insanity. The question considered by the court was “Is the defence of insanity available for a defendant charged with an offence of harassment…?“. This was raised as the offence includes the objective test that a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. The court found that insanity was available to this offence, as it is to others with an objective fault element, and provided the following example:

“…if a man repeatedly telephones his neighbour at all hours of the day and night in an attempt to perform a religious conversion, in the deluded belief that he has received a divine order to do so, and that it is lawful to comply, then he is not guilty by reason of insanity under the second limb of the M’Naghten Rules. That would be so, notwithstanding that he has committed the actus reus of the offence and his conduct, viewed objectively, amounts to harassment. Such a man does not know that what he is doing is wrong and therefore as a matter of principle should not be subject to criminal punishment.”