View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by SAS-SPACE Post-traumatic stress disorder: the legal view by Sandeep Savla

of reason due to a disease of the PTSD within the context of mind. The defendant must show diminished responsibility' has taken on that he or she did not know the renewed importance in cases of battered nature or quality- of the act, or did women who have killed their husbands. not know that what he or she was In these cases, the triggering event for the doing was wrong. commission of the act may be quite minor, so that could not be The phrase 'disease of the mind' refers argued. However, it may be possible to to something 'internal' and, according to show that a woman who has been the House of Lords case of R v Sullivan exposed to violence 'over time' is [1984] AC 156, it must affect the suffering from PTSD, so as to rely on the faculties of reason, memory and diminished responsibility defence. understanding. The insanity defence is not really applicable to PTSD because the case of [1973] QB 910 held that the application of an external factor, such This brings me to the main focus of the On researching the subject of post- as violence, would not constitute a present article. 'Automatism' refers to an traumatic stress disorder ('PTSD') as a disease of the mind. A defendant who act that is beyond a person's control defence in criminal proceedings, the suffered from a traumatic event would be because there is no direction from the dearth of published material seemed relying on an external cause and mind. Automatism has been divided by apparent. Despite this, I will suggest in therefore could not rely on the insanity- the court, in R v Kemp [1957] QB 399, this short article that PTSD may be used defence. into sane and insane automatism and this as a potent criminal defence. More approach was approved in Bratty v AG for specifically, this article will consider how DIMINISHED NI [1963] AC 386. Automatism that is the PTSD defence can be cogently argued RESPONSIBILITY derived from an external force is deemed before the criminal courts and, for that to be sane and the defence may then be Section 2 of the purpose, the manner in which medical put before the The defence results reduces the offence of to experts should be asked to structure their in a complete acquittal for the defendant. if, at the time of the reports. By contrast, where there is an internal offence, the defendant was suffering from cause, this is the legal equivalent of When arguing PTSD as a defence in an abnormality of mind. That insanity (see above). criminal proceedings, the defence has to abnormality of mind must have be fitted into the structure of the substantially impaired his or her While most mental states have an criminal law as it presently exists. responsibility' for the killing. Strictly internal cause, PTSD is derived from an

Therefore,' PTSD has to be broughto speaking, medical experts should confine external trauma. PTSD as a defence is within the three defences of insanity, themselves to the first part of s. 2: in therefore most likely to succeed when diminished responsibility' or automatism. other words, they should consider argued under the head of 'non-insane The focus of this article is non-insane whether the defendant was suffering automatism'. Here the accused only to consider automatism, but it is as well from an abnormality of mind. bears the burden of adducingo all three defences. and the burden of disproving non-insane Most psychiatrists see abnormality' of automatism is then borne by the Crown. mind as being any mental state that meets INSANITY current recognised diagnostic criteria, for The significance of PTSD as a possible The basis of the insanity defence is to instance the criteria in the fourth edition defence first appears in the case of R v T be found in the M'Naghten Rules of the Diagnostic and Statistical Manual [1990] Crim LR 256, decided at ((1843) 10 Cl & F 200). The test for (DSM IV) (American Psychiatric Snaresbrook Crown Court by Southan J. with and insanity arising from the M'Naghten Association, 1994). However, what we T was chargedo J Rules may be summarised as follows. are actually concerned with is the legal occasioning actual bodily harm. She had definition of abnormality of mind and, injured a victim with a Stanley knife after (1) Everyone is presumed sane unless according to R v Byrne [1960] 2 QB 396, a disagreement. On arrest, she was proved otherwise. that equates to a state of mind so passive and indifferent, and in interview (2) It is a defence to a criminal different from that of an ordinary person she could only recollect some events. T prosecution for the accused to show that the would term it was examined by a doctor in Holloway that he or she suffered from a defect absurd. Prison seven days later and he found that

Amicus Curiae Issue 18 June 1999 her hymen had been ruptured and was (3) Finally, in 1987 the defendant had (3) The diagnosis should be made by the bleeding. T complained that she had suffered a whiplash injury in a car psychiatrist on the basis of a detailed been raped three days prior to the arrest. accident. account of the symptoms and, if T was then examined on a number of possible, with reference to DSM IV There was no past history of mental occasions by a psychiatrist, who disorder. In interview, the police officer (4) It is important to recognise that diagnosed PTSD to the extent that she said that, when he recovered from being many people survive extraordinary was in a dissociative state at the time that hit in the face, he saw bright lights and trauma, so the psychiatrist should she had committed the offence. ' O O stars and had a dazed feeling. The link the particular trauma to the Southan J held that rape could have an casualty officer who saw the police officer commission of the particular act that appalling effect on any young woman, 1 1 O J J O ' recorded in his notes that the police constitutes the (see Ashtead, however well balanced she normally was. officer seemed very taken aback by the 'PTSD and the Criminal Law' in PTSD involving a normal person in an act fact that he had been struck in the face. PTSD: Explaining, Understanding, of violence was not to be considered a The psychiatric evidence stated that the Treating (Mole Conferences, disease of the mind (within the M'Naghten police officer had been suffering from a November 1997)). Rules), even if there was a delay before the temporary injury to the brain, which In R v T there was independent dissociation manifested itself. brought on post-traumatic amnesia. evidence of a physical nature to indicate Evidence was given by witnesses at the This case may be contrasted with the the traumatic event and, in the trial as to the fact that the police officer Canadian case of R v Rabey (1978) 79 subsequent case, the witnesses and the had been knocked out for four to five DLR (3d) 414. In that case, the defence casualty officer provide independent minutes and the police officer himself of non-insane automatism was not had no memory of the act. This corroborative evidence. accepted in respect of the psychological seemingly 'open and shut case' led to two blow caused by the break-up of a It would appear, then, that when hung and, in this writers relationship with a girlfriend. The solicitors arc faced with a defendant who submission, shows the potential of the Ontario Court of Appeal rejected this is disorientated at the time of the PTSD defence. psychological blow as one of the ordinary commission of the offence, it may be stresses and disappointments of life (at possible to obtain psychiatric evidence to 435). It is clear, therefore, that the ROLES OF SOLICITOR AND link the commission of the crime with a defence of PTSD will be approached with PSYCHIATRIST previous traumatic event. some caution and that the triggering OO O These two cases suggest an important event for the PTSD must have a way forward in the assertion of the PTSD OVERCOMING OBJECTIONS traumatic effect on a normally well- defence. It is clear that the opinion of the The Law Commission, in its report balanced person. expert psychiatrist is important. The dealing with PTSD in the civil context, opinion of the expert is admissible to O Another case of PTSD being used as a identified three possible difficulties (see furnish the court with scientific defence by arguing non-insane Law Commission, 'Liability for information which is likely to be outside automatism may be found in the Psychiatric Illness', Consultation Paper the experience of the and jury (see literature: Wright et al report the case of No. 137, HMSO 1995, p. 51-57). a police officer who raised the PTSD R v Turner [1975] QB 854). The rule is defence before a jury by arguing non- that the expert is prohibited from giving First, may be wary of flooding insane automatism (see 'Automatism his or her opinion on the ultimate issue: courts with PTSD defences. Doctors are revisited: post-traumatic automatism as a the job of the psychiatrist, then, is to increasingly willing to support PTSD defence to a serious criminal charge' educate the judge and jury about PTSD. claims and the concept of PTSD seems to (1995) 35 Med Sci Law 327). The police In seeking to do this, it is advisable that be expanding. Acute stress disorder', for officer was hit on the face by a man he the following approach be followed: instance, is new to DSM IV and was was arresting and was rendered added to describe acute reactions to (1) The psychiatrist should review the unconscious. When he recovered he hit extreme stress. It has also been suggested pre-traumatic state in detail and the handcuffed man with his truncheon. that there is evidence to support the form a view on the traumatic event In a case where a conviction seemed a existence of a more complex stress itself. He or she should contrast the foregone conclusion, psychiatric evidence reaction occurring in victims of pre-traumatic status and post- was obtained about three traumatic prolonged, repeated and inter-personal traumatic behaviour of the events that the defendant had suffered: violence and victimisation. However, all defendant. the legitimate diagnoses of psychiatric (1) The defendant had been in the Royal (2) Both cases above show that the conditions must today meet the Navy for 12 years and in 1965 he defendant's account alone will not diagnostic criteria which are contained in was caught by a booby trap in Malaya be sufficient. There should be the classificatory system in DSM IV Any and rendered unconscious. interviews with independent discrepancy between the particular (2) The defendant had been a passenger persons to strengthen the diagnosis and the classificatory systems in a train crash in 1968, when three connection between the traumatic can be probed in cross-examination, as people had been killed in his event and the behaviour relating to can a failure to rule out alternative compartment. the alleged offence.

Amicus Curias Issue 18 June 1999 The second possible objection is of psychiatric thinking here and there defence. Although the scope of the fraudulent and exaggerated claims. It is may be a judicial perception that mental defence is not clear, what does appear argued that claimants may be able to fake health professionals may agree to a legally from the cases discussed above is that the symptoms of a psychiatric illness and predetermined position. Nonetheless, PTSD put forward as 'non-insane that they may be able to exploit there is no reason why courts cannot automatism' may be more readily legitimate differences of opinion within weigh evidence here as in other cases. available than is presently thought. @ the medical profession. However, although no physical tests exist with CONCLUSION an assertion of PTSD, which to ascertain It would seem that there is no reason a number of psychological tests. there are why the courts should not accept the tests may help to These psychological defence of PTSD in criminal long-standing character distinguish proceedings. What is required is a careful and dysfunctions from illness SANDEEP SAVLA problems strategy to present expert evidence. of a sudden onset. The or injury Expert evidence must be supported with Barrister; Sweet St^Maxwell Research Fellow, tests are objective and given psychological independent corroborative interviews Institute of Advanced Legal Studies, London. and these tests are then by computer from family members to establish the by clinical evaluation and Although the author's interest is in financial complemented pre-traumatic status, evidence from from his corroborative interviews with family crime, this article arose witnesses who were present at the scene involvement in a series of criminal cases members. of the crime and evidence from that involved psychiatric defences. He is The third and final objection is one of independent witnesses, including those grateful to the participants at the Conference on Criminal Law and conflicting medical opinions. There is who may have examined the defendant held at Whipps Cross Hospital, disagreement among mental health shortlv after the commission of the o o London, on 21 March 1998, for their professionals concerning the presence or crime. While all these types of evidence comments and suggestions. absence of a mental disorder following may not be present, the more evidence trauma. It is clear that there is a fluidity that can be found the stronger the

What makes a good lawyer an expert?

Legal information as it happens

• Proactive Daily Digest Service CCHNEWLAW • Selects, edits and delivers on the same day as judgment • Cross-referenced and indexed database of judgments

Fourth Floor, Quality House, Quality Court, Chancery Lane, London WC2A 1HP Tel: O171 4O5 5434 Fax: O171 4O5 5693 E-Mail: [email protected] Website: http://www.newlawonline.com

Amicus Curiae Issue 18 June 1999