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Report on Insanity and Diminished Responsibility

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Report on Insanity and Diminished Responsibility SCOTTISH LAW COMMISSION promoting law reform Report on Insanity and Diminished Responsibility Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 Laid before the Scottish Parliament by the Scottish Ministers July 2004 SE/2004/92 EDINBURGH: The Stationery Office £16.10 ii The Scottish Law Commission was set up by section 2 of the Law Commissions Act 19651 for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Eassie, Chairman Professor Gerard Maher, QC Professor Kenneth G C Reid Professor Joseph M Thomson Mr Colin J Tyre, QC. The Chief Executive of the Commission is Miss Jane L McLeod. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. Tel: 0131 668 2131 Fax: 0131 662 4900 E-mail: [email protected] Or via our website at www.scotlawcom.gov.uk - select "Contact" NOTES 1. For those wishing further copies of this paper it may be downloaded from our website or purchased from TSO Scotland Bookshop. 2. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that an accessible electronic version of this document is available on our website (text only version). 1 Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (S.I. 1999/1820). ii SCOTTISH LAW COMMISSION Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 Report on Insanity and Diminished Responsibility To: Ms Cathy Jamieson MSP, Minister for Justice We have the honour to submit to the Scottish Ministers our Report on Insanity and Diminished Responsibility (Signed) RONALD D MACKAY, Chairman GERARD MAHER KENNETH G C REID JOSEPH M THOMSON COLIN TYRE Miss Jane L McLeod, Chief Executive 7 May 2004 v Contents Paragraph Page Part 1 Introduction Terms of reference 1.1 1 The Criminal Procedure (Scotland) Act 1995 1.4 1 Consultation 1.5 2 Disposals 1.9 2 Statistics 1.16 4 Main recommendations for reform 1.22 6 Legislative competence 1.26 7 Part 2 Insanity as a defence Introduction 2.1 8 Option of no change to the current law 2.7 10 Abolition of insanity as a defence 2.15 12 Name of the reformed defence 2.19 14 Constituent elements of the defence 2.25 15 The presence of mental disorder 2.25 15 Connecting link (causation) 2.31 16 Specific effect of mental disorder on criminal conduct 2.38 18 Mental disorder and appreciation of conduct 2.42 19 A volitional element 2.52 23 Psychopathic personality disorder 2.57 25 ECHR implications 2.64 27 Part 3 Diminished responsibility Introduction 3.1 30 A statutory statement of the test for diminished responsibility? 3.5 31 Abolition of the plea of diminished responsibility 3.10 32 Name of the plea 3.12 33 The substance of the test 3.14 33 The relationship with the special defence based on mental disorder 3.18 34 The psychopathy exclusion 3.24 36 The intoxication exclusion 3.35 39 Diminished responsibility in crimes other than murder 3.43 42 ECHR implications 3.51 44 vii Paragraph Page Part 4 Insanity as a plea in bar of trial Introduction 4.1 45 Options of no change and abolition 4.5 46 Name of the plea 4.8 47 Nature of the test 4.11 47 Exclusion of amnesia 4.20 50 ECHR implications 4.24 51 Part 5 Evidence and Procedure A. The defence based on the accused's mental disorder 5.2 54 Burden of proof 5.2 54 Defence raised by the accused 5.3 54 Burden of proof in relation to defences 5.6 55 The implications of the ECHR 5.10 56 Insanity raised by the prosecution 5.29 62 Procedural nature of the defence 5.38 64 Verdict following the defence 5.40 64 B. Diminished responsibility 5.46 66 Burden of proof 5.46 66 Notice of the plea 5.50 67 C. Unfitness as a plea in bar of trial 5.54 68 Right to raise issue of unfitness in bar of trial 5.54 68 Standard of proof 5.58 69 Evidential requirements in relation to unfitness as a plea in bar 5.60 69 of trial Notice of the plea in summary proceedings 5.64 70 D. Transitional provisions 5.66 71 The special defence based on mental disorder; diminished 5.66 71 responsibility Unfitness in bar of trial 5.69 72 Part 6 List of recommendations 73 Appendix A Draft Criminal Responsibility and Unfitness for Trial 77 (Scotland) Bill Appendix B List of consultees who submitted written comments on 91 Discussion Paper No 122 Appendix C Mental health experts who assisted with the project 92 viii Abbreviations 1995 Act Criminal Procedure (Scotland) Act 1995 2003 Act Mental Health (Care and Treatment) (Scotland) Act 2003 Butler Report Report of the Committee on Mentally Abnormal Offenders, chaired by the Rt Hon Lord Butler (Cmnd 6244, 1975) Gordon Sir Gerald H Gordon QC, The Criminal Law of Scotland, Vol I, (3rd edn ed Michael G A Christie) (Edinburgh, 2000) Hume Baron Hume, Commentaries on the Law of Scotland, Respecting Crimes (4th edn) (Edinburgh, 1844; reprinted, 1986) Mackay R D Mackay, Mental Condition Defences in the Criminal Law (Oxford, 1995) McAuley Finbarr McAuley, Insanity, Psychiatry and Criminal Responsibility (Dublin, 1993) Millan Report New Directions: Report on the Review of the Mental Health (Scotland) Act 1984 by a Committee chaired by the Rt Hon Bruce Millan (SE/2001/56) Renton & Brown Renton & Brown's Criminal Procedure (6th edn ed Sir Gerald H Gordon QC) (Edinburgh) ix Part 1 Introduction Terms of reference 1.1 In October 2001 we received the following reference1 from the Scottish Ministers: "(1) To consider – (a) the tests to establish insanity (either as a defence or as a plea in bar of trial) and the plea of diminished responsibility; and (b) issues of the law of evidence and procedure involved in raising and establishing insanity and diminished responsibility; and (2) To make recommendations for reform, if so advised; and (3) Consequent upon any such recommendations for reform, to consider what changes, if any, should be made to the powers of the courts to deal with persons in respect of whom insanity (either as a defence or as a plea in bar of trial) or diminished responsibility has been established." 1.2 We received the reference following the report of a committee chaired by the Rt Hon Bruce Millan, which undertook a comprehensive review of the Mental Health (Scotland) Act 1984.2 In the course of preparing its report, the committee received representations about difficulties encountered in practice arising from the tests for insanity, both as a defence and as a plea in bar of trial, and for diminished responsibility.3 The Committee recommended that the Scottish Law Commission should review these topics and as a result we received the reference from Scottish Ministers. 1.3 The bulk of the Millan Committee's recommendations have been implemented by the Mental Health (Care and Treatment) (Scotland) Act 2003. This Act is mainly concerned with the civil law on mental health. By contrast, our project concentrates on specific aspects of the criminal law relating to persons with mental disorder. The provisions of our bill, if enacted, would form another part of the process of reform of the law relating to mental health. The Criminal Procedure (Scotland) Act 1995 1.4 Since the time of its enactment the Criminal Procedure (Scotland) Act 1995, which is a consolidation statute, has been the subject of numerous amendments. As a consequence the Act has become cumbersome in form and difficult to use. Moreover, the Scottish Executive has announced that the main provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003, which makes extensive and complicated amendments to the 1995 Act, will be brought into force in April 2005. In view of the fact that the 1 Under section 3(1)(e) of the Law Commissions Act 1965. 2 New Directions: Report on the Review of the Mental Health (Scotland) Act 1984 (SE/2001/56). 3 Millan Report, ch 29, esp paras 43-61. 1 amendments are relevant to our recommendations, we have decided to proceed on the basis that all the amendments to the 1995 Act have been commenced. Accordingly, our recommendations and the provisions of the draft bill annexed to this report4 have been drafted to take account of the changes made by legislation up to and including the 2003 Act.5 Consultation 1.5 The topics covered by our reference involve a wide range of issues in both law and mental health. At the start of the project we held a seminar with a view to discovering current thinking on these issues. The seminar was attended by academic lawyers as well as legal and medical practitioners, and helped us considerably in identifying and developing the principles which were the subject of our proposals for reform. Our thanks are due to the speakers and the other participants who contributed to the seminar proceedings.6 1.6 Our Discussion Paper on Insanity and Diminished Responsibility was published in January 2003.7 It invited comments on our proposals to introduce statutory tests to replace the common law rules on diminished responsibility and on insanity as a defence and plea in bar of trial. The paper also sought comments in relation to the burden and standard of proof required to establish the defence and pleas. We are grateful to all the persons and organisations who responded to the Discussion Paper.8 1.7 We also held a meeting with a number of experts in the field of mental health to discuss various matters arising from the responses to the Discussion Paper.
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