PSYCHIATRY AND CRIMINAL RESPONSIBILITY IN ENGLAND, 1843-1939 Thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy awarded by De Montfort University Leicester by Tony Ward (full name: Antony Ward) May 1996 ABSTRACT This thesis examines the response of English law to medical claims to expertise in relation to criminal responsibility, focusing mainly on the period 1883-1939 but also considering some aspects of the period 1843-82. It shows that between 1883 and c. 1907 a marked rapprochement occurred between legal and medical views of insanity, but that this gave way to a period of renewed conflict after c. 1908. The latter period nevertheless witnessed legal changes - the Mental Deficiency Act 1913, the Infanticide Acts 1922 and 1938, and the growth of psychiatric intervention in the magistrates' courts - which prefigured the wider legal reforms of the 1950s. Three main explanations for the law's varying response to psychiatry are advanced. First- ly, it reflected changes in the role of lunacy specialists and prison doctors in pre-trial procedures. Secondly, the emerging consensus in the 1880s and 1890s was embodied in a new form of medico-legal discourse accessible to both professions, but this common ground came under threat both from new medical and allied discourses (criminology, psychoanalysis and the dis- course of mental deficiency) and from a resurgence of formalism in the criminal law. Thirdly, changing perceptions of crime, combined with the cultural impact of the natural and social sci- ences, produced a climate where certain kinds of scientific explanation of criminal behaviour accorded well with the "common sense" of judges and juries. The McNaughtan Rules furnished a test of criminal responsibility which was doctrinally coherent and did not depend on the truth of any particular medical view of insanity, but they did not provide a generally acceptable criterion of who should be punished rather than treated, let alone of who should be sentenced to death. Consequently while the rules survived intact in legal doctrine they were undermined in practice by the decisions of juries, judges, magistrates and Home Secretaries. In the case of infanticide the law was changed to reflect commonsense percep- tions (only indirectly related to medical theories) of the causes of women's violent acts. 1 PREFACE This thesis is an historical study of the relationship between psychiatry and English criminal law, and especially the doctrine of criminal responsibility. It focuses on the period 1883-1939, but also discusses some aspects of the period 1843-82. It has three main objectives. Its primary aim is to contribute to historical knowledge by documenting a period of medico-legal history which has hitherto been studied in much less depth than the preceding and following periods. In particu- lar, it reviews the extensive material of legal interest to be found in medical journals (the British Medical Journal, Lancet, Journal of Mental Science, Transactions of the Medico-Legal Society and Medico-Legal and Criminological Review) and in the Home Office files in the Public Record Office, Kew. Secondly, it offers a contribution to sociological discussions of the growth of expert knowledge, and its relationship to law. Thirdly, it aims to contribute to jurisprudential discussion of the insanity defence and related issues, through an analysis of the work of some important early theorists, and by offering an historical perspective on the modern law relating to criminal responsibility. Acknowledgements are due first and foremost to my supervisor, Professor Ronnie Mackay, for all his help and support over the past five-and-a-half years; and to Professor Joe Sim of Liverpool John Moore's University who, acting in what was modestly termed "an advisory capacity", gave very generously of his time in discussing the historical and sociological aspects of the research and particularly in commenting on the early drafts of Chapters 1 to 4. Thanks, too, to my second supervisors, Professors Richard Card (De Montfort University) and Andrew Ashworth (King's College London). Professor Ashworth's comments, though relatively brief, were very perceptive and helpful. Professor Mick Ryan of the University of Greenwich kindly read and commented on Chapter 1. I am also grateful to Dr Michael Clark (Welicome Trust) for allowing to me to quote from his unpublished PhD thesis "The Data of Alienism", and for en- couraging my interest in medico-legal history. Many librarians have inadvertently assisted this research but I am particularly indebted to those at the Barnes Library, University of Birmingham, and to the inter-library loans staff at De Montfort. David Williamson, of the Law School at De Montfort, provided very useful technical iii CONTENTS Abstract 1 Preface 111 Abbreviations v 1. Introduction: "A Matter of Science" 1 2. Insanity and Responsibility: The Theoretical Debate, 1843-1907 17 3. The Law in Practice, 1883-1907 46 4. The New Sciences of Crime 81 Irresistible Impulses and Immovable Judges: 5. The Insanity Defence in Capital Cases, 1908-39 109 6. Other Legal Issues, 1908-39 141 7. Gender and Infanticide 165 8. Conclusion 193 References 204 Prison Commission reports 245 Table of Cases 247 Table of Statutes 254 Public Record Office files consulted 255 ii assistance, especially by introducing me to the "Papyrus" bibliographic database system, which has proved invaluable. The early stages of this research were undertaken as part of a project on The Long Term Detention of those found Unfit to Plead and Legally Insane, which was funded by Economic and Social Research Council Award no. R000232782. In the course of that project I was able, thanks to the co-operation of Broadmoor, Ashworth and Rampton Special Hospitals, to meet one of the individuals whose cases are cited in the thesis, and several others who were found "guilty but insane" or "unfit to plead" during a slightly later period. Though I have not directly used material from the interviews here, the views and experiences of certain of these patients have greatly stimulated my thinking on the subject. Of course, neither they nor any of the other people I have mentioned can be held responsible for any of my errors. lv ABBREVIATIONS AC Law Reports: Appeal Cases BMA British Medical Association BMJ British Medical Journal CCA Court of Criminal Appeal CCC Central Criminal Court CJ (after surname) Chief Justice Cr.App.R. Criminal Appeal Reports DPP Director of Public Prosecutions J (after surname) Mr Justice JMS Journal of Mental Science KB King's Bench reports U (after surname) Lord Justice MPA Medico-Psychological Association NSPCC National Society for the Prevention of Cruelty to Children OBSP Old Bailey Sessions Papers PP Parliamentary Papers PRO Public Records Office, Kew St.Tr.N.S. State Trials: New Series V CHAPTER 1 INTRODUCTION: "A MATTER OF SCIENCE" Science is ever on the advance; and, no doubt, science of this kind, like every other, is in advance of the generality of mankind. It is a matter of science altoge- ther; and we who have the ordinary duties of our several stations and the business of our respective avocations to occupy our full attention, cannot be so well in- formed upon it as those who have scientifically pursued the study and treatment of the disease [of madness]. I think, then, we shall be fully justified in turning to the doctrines of matured science rather than to the maxims put forth in times when neither knowledge, nor philanthropy, nor philosophy, nor common justice had their full operations in discussions of this nature.1 In 1843, when Alexander Cockburn addressed the jury in these terms at the trial of Daniel McNaughtan, 2 such an appeal to scientific knowledge to determine the insanity of an alleged murderer - the assassin, in this case, of the prime minister's private secretary - was a relative novelty. Mediaeval English law had recognised madness as a ground, usually for a royal pardon, but sometimes for outright acquittal, which became the norm from the sixteenth century onwards (Hurnard 1969: 159-70; Hanawalt 1979: 147-8; Walker 1968: 25-41). Madness was not, how- ever, a matter of expert diagnosis. In eighteenth-century trials, "John Bull as juryman had no great difficulty in distinguishing between anger and lunacy, malice and madness" (Porter 1990: 1 15). Credit for introducing the medical man 4 as an expert on insanity into the criminal courts seems to be due to the aristocratic murderer Earl Ferrers, who when faced in 1760 with the diffi- cult task of convincing his peers of his own insanity, called Dr Monro, the physician of Bethlem, 1. Alexander Cockburn QC in B v McNaughton (4 St. Tr. N.S. at 876; reprinted in West & Walk 1977: 34-5). 2. This appears to be the spelling preferred by the defendant himself (Moran, 1981). In the State Trials reports it is spelt f McNaughton . Clark and Finelly's Report of the subsequent House of Lords debate is entitled "Daniel M'Naghten's case" (the printers used a reversed apostrophe for the superscript "c"). 3. See Forbes (1985: 168-176) for some examples of lay determination of insanity in the 18th century. Forbes cites a witchcraft trial of 1602 as the earliest instance of "psychiatric" testimony, but the evidence related to the state of mind of the alleged victim, and to call it "psychiatric' is "a rather tendentious use of the term" (Bigen 1994: 169). 4. Women could not qualify as doctors in England until 1876. The first woman to obtain the alienists' (or as they started to call themselves in the early 20th century, psychiatrists') specialist qualification, the Certificate in Psycho- logical Medicine, did so in 1888 (Mackenzie 1983). 1 to testify to the common signs of that condition.