Criminal Liability: Insanity and Automatism A Discussion Paper 23 July 2013 Law Commission Discussion Paper (July 2013) CRIMINAL LIABILITY: INSANITY AND AUTOMATISM © Crown copyright 2013 ii THE LAW COMMISSION The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Right Honourable Lord Justice Lloyd Jones, Chairman Professor Elizabeth Cooke David Hertzell Professor David Ormerod QC Frances Patterson QC The Chief Executive of the Law Commission is Elaine Lorimer. The Law Commission is located at Steel House, 11 Tothill Street, London SW1H 9LJ. The terms of this paper were agreed on 8 July 2013. The text of this paper is available on the Law Commission’s website at: http://lawcommission.justice.gov.uk/areas/insanity.htm. Information provided to the Law Commission We are not inviting responses to this discussion paper, but if you provide any information to us in response to it, we may publish it. 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The Law Commission will process your personal data in accordance with the Data Protection Act 1998. iii iv THE LAW COMMISSION CRIMINAL LIABILITY: INSANITY AND AUTOMATISM A DISCUSSION PAPER CONTENTS Paragraph Page GLOSSARY xvi CHAPTER 1: INTRODUCTION 1 Our work on the linked topics of unfitness to plead and the 1.4 1 defence of insanity The relationship between the law on unfitness to 1.5 1 plead and the defence of insanity Unfitness to plead 1.7 2 The insanity defence 1.8 2 The way forward 1.10 2 The central question in this paper 1.18 4 The defences of insanity and automatism: the present law 1.23 5 Insanity 1.23 5 Automatism 1.27 5 Problems with the present law 1.30 6 (1) The requirement to prove D’s “act” 1.31 6 (2) The interpretation of “defect of reason” 1.35 7 (3) Disease of the mind 1.37 7 (4) The “nature and quality of the act” 1.48 10 (5) “He did not know he was doing what was wrong” 1.49 10 (6) Incoherence 1.52 11 v Paragraph Page (7) The defence is not available in the magistrates’ 1.54 12 courts if there is no mental element to the offence (8) The law is out of step with medical 1.56 12 understanding (9) The label “insanity” is stigmatising and 1.59 13 inaccurate (10) Burden of proof if the insanity defence is raised 1.63 13 (11) The risk of breach of the ECHR 1.65 14 Victims’ rights 1.65 14 Defendants’ rights 1.70 15 (12) Equality and discrimination 1.73 16 (13) The impact on children 1.77 17 Responses to the Scoping Paper and evidence of 1.80 17 how the defences work in practice Possible new defences 1.84 19 New defence and special verdict of “not criminally responsible by reason of recognised medical 1.86 19 condition” Illustration 1.97 21 Disposal following the new special verdict 1.106 22 Reformed defence of automatism 1.109 23 Prior fault and intoxication 1.115 24 Procedural issues 1.121 25 Burden of proof 1.123 26 Possible defence and special verdict of 1.126 26 developmental immaturity How our provisional proposals would improve the law 1.127 26 Acknowledgements 1.139 27 CHAPTER 2: SHOULD THERE BE AN “INSANITY” DEFENCE 29 AT ALL? No special defence 2.2 29 The arguments against a special defence based on 2.4 29 mental disorder vi Paragraph Page No special defence is necessary or 2.5 30 justifiable Wrong in principle 2.10 32 No reason for distinguishing between 2.15 33 different causes of non-responsibility The arguments for a special defence 2.18 34 1: That if a person is non-culpable because of mental disorder, then that should be the 2.18 34 true ground for the verdict, not the presence or absence of mens rea 2: Public protection requires the court to 2.23 35 have special powers 3: What of cases where the mens rea existed, but resulted from a mental 2.30 37 disorder? 4: The proposal must take account of 2.32 37 defences Conclusion 2.33 38 A mental disorder defence? 2.35 39 The connection with the defence of automatism 2.36 39 Uncertainty about the definition of “mental disorder” 2.43 40 The alternative 2.50 42 The shortcomings of a mental disorder defence 2.52 42 No reason to treat mental disorders 2.53 42 differently from physical disorders Reduced stigma 2.56 43 More appropriate labelling 2.57 43 Appropriate outcomes 2.60 44 Problem to be addressed with the recognised medical condition defence as well as with the mental 2.62 44 disorder defence Conclusion 2.63 45 vii Paragraph Page CHAPTER 3: A NEW DEFENCE OF “NOT CRIMINALLY RESPONSIBLE BY REASON OF RECOGNISED MEDICAL 46 CONDITION” (I): OVERVIEW Introduction 3.1 46 Total lack of criminal capacity 3.2 46 Relevant criminal capacities 3.4 46 Applicable to all offences 3.7 47 Retaining the possibility of a simple acquittal 3.9 47 Burden of proof 3.10 48 The role of expert evidence 3.11 48 “Recognised medical condition” 3.12 48 Non-qualifying conditions 3.14 48 Acute intoxication exclusion 3.15 49 Anti-social personality disorders 3.16 49 The relationship between the new defence and automatism 3.17 49 The Relationship with the law on prior fault and intoxication 3.19 49 A new special verdict 3.21 50 Disposals following the new special verdict 3.22 50 Naming the new defence 3.26 50 CHAPTER 4: A NEW DEFENCE OF “NOT CRIMINALLY RESPONSIBLE BY REASON OF RECOGNISED MEDICAL 52 CONDITION” (II): THE DETAIL The relevant capacities 4.4 52 Practical reasoning/rationally forming a judgment 4.8 53 Conclusion 4.14 55 Capacity to appreciate wrongfulness 4.19 56 What kind of “wrongfulness” is in issue? 4.20 56 Why have a “wrongfulness” limb at all? 4.23 56 Conclusion 4.33 59 Capacity to control physical actions 4.34 59 viii Paragraph Page The arguments for including in the defence an element reflecting the lack of capacity to 4.37 60 control one’s actions Views of other bodies and jurisdictions 4.42 61 Arguments against an element reflecting an 4.48 63 inability to control one’s physical acts Conclusion 4.53 65 “Recognised medical condition” 4.55 65 What is not covered 4.59 66 A question for the court 4.63 67 “Recognised” professionally 4.67 67 Difficulties of diagnosis 4.69 68 Application to children 4.71 69 Difficulties with experts using DSM-IV 4.74 70 and ICD-10 and their successors “Recognised medical condition” as a legal 4.79 71 concept “Recognised medical condition” in the 4.80 72 defence of diminished responsibility Acute intoxication 4.87 74 Antisocial personality disorder 4.93 76 What are personality disorders? 4.94 76 Views of other reform bodies and 4.98 78 jurisdictions Discussion 4.102 79 The role of expert witnesses in the determination of whether a condition is a recognised medical 4.117 82 condition The new defence 4.123 83 Who may raise the issue 4.131 84 The burden of proof 4.135 85 Satisfying the evidential burden 4.136 85 Connections with other defences 4.140 86 Consequences for other alleged perpetrators 4.142 86 ix Paragraph Page Disposals following the special verdict 4.144 87 Hospital orders 4.145 87 Supervision order 4.149 88 Absolute discharge 4.152 89 Disposals for children and young people 4.153 89 Sanctions in the event of breach 4.154 89 Provisional proposals 4.158 91 Table comparing the outcomes of cases under the present 4.169 92 law with outcomes under our proposed defence Flowchart 4.170 94 CHAPTER 5: A REFORMED DEFENCE OF AUTOMATISM 96 The present law 5.2 96 Definition and scope of defence 5.2 96 Categories of automatism 5.11 99 The courts’ general approach to sane automatism 5.18 100 Loss of control 5.22 101 Evidence required to support the defence 5.33 104 (1) Automatism resulting from a disease of the mind 5.36 104 Problems with this category of the present law 5.38 105 Arbitrary classifications 5.39 105 The mismatch between law and medicine 5.45 107 Risk of mis-categorisation 5.46 107 Incoherence in cases of non-physical 5.47 107 external factors Sleepwalking 5.55 110 Our provisional proposal 5.65 113 (a) Redefining the boundary between recognised medical condition and sane 5.65 113 automatism (b) Advantages of the proposal 5.69 114 (2) Automatism caused by an internal factor other than a 5.77 115 disease of the mind x Paragraph Page Problems of the present law 5.83 116 Our proposals 5.86 117 Advantages of our proposals for cases in this 5.87 117 category (3) Automatism caused by an external factor involving 5.89 117 consumption of substances Present law 5.90 117 Problems with the present law 5.99 119 Our provisional proposals 5.102 120 Advantage of our provisional proposals 5.103 120 (4) Automatism caused by an external factor not involving 5.104 120 consumption of substances Problems 5.105 120 Our provisional proposal 5.106 121 The reformed automatism defence 5.108 121 General features 5.108 121 No prior fault 5.111 122 Denial of actus reus or of mens rea? 5.112 122 Total loss of control or loss of effective 5.113 122 control? Conclusion 5.118 123 Relationship to the recognised medical 5.119 123 condition defence Burden of proof 5.121 124 Actions or conduct? 5.122 124 Provisionally proposed defence of automatism 5.123 124 CHAPTER 6: THE RELATIONSHIP TO THE LAW ON PRIOR 125 FAULT AND