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Psychiatry in Court
Forensic Session 4
Curriculum Links
12.2
Psychiatry and the Criminal Justice System
12.2.2
Psychiatric defences: fitness to plead, mutism and deafness, criminal
responsibility, diminished responsibility, amnesia and automatism
12.2.3
Psychiatric disposals following conviction
Learning Objectives
To develop an understanding of…
• Medico-legal concepts
• The use of psychiatric defences in Court
as complete or partial
• Defences to crime and the role of
mental disorder in mitigation
Outline of lecture
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Criminal Responsibility
Fitness to plead
Insanity & Automatism
Diminished Responsibility
Loss of control
Intoxication
Duress
Amnesia
Malingering
Aggravating & Mitigating Factors
Criminal Responsibility
• To be responsible for a criminal act, the
person must do the act and be responsible for
their actions
– Actus Reus
– Mens Rea
• What is the age of CR in England & Wales?
– 10
Fitness to Plead
• Pritchard Criteria
Fitness to Plead
• Pritchard Criteria
• Can you list them?
Pritchard Criteria
*mute by malice or by visitation of God
The defendant must be capable of
• Understanding the charges and deciding whether to
plead guilty of not
• Following the course of the proceedings
• Challenging a juror
• Instructing counsel
• Giving evidence to their own defence
Crown Court
news.bbc.co.uk
Fitness to Plead
• Pritchard Criteria vs ECHR
– Article 6(1)
• Effective participation = broad understanding
• Future development = Capacity-based
assessment?
Procedure – Unfitness to Plead
Criminal Procedure (Insanity & Unfitness to Plead) Act 1991
UTP  Trial of the facts
Disposals
• Hospital order +/- Restriction order
• Supervision and treatment order
• Absolute discharge
Remitted to court when fit to plead
Insanity
Not Guilty by Reason of Insanity
(NRGI)
• Lack of mens rea
• Legal concept – NOT a medical one
• What is the test for insanity?
– M’Naghten Rules
Daniel M’Naghten
M’Naghten Rules
At the time
of
committing
the act:
• 1. The accused was labouring
under a defect of reason;
• 2. Arising from a disease of the
mind;
• 3. So as not to know the nature
and quality of the act;
• 4. Or if he did know, he did not
know it was wrong
Defect of Reason
• Complete inability to use reasoning skills
• Temporary or permanent
• Defect of reason is not
– Failure to reason
– Impulsivity
– Absent-mindedness
– Confusion
• Irresistible impulse
Disease of the mind
• Mind = mental faculties of reason, memory and
understanding
• Any disease that affects the proper functioning of the
mind
• Internal cause – intrinsic manifestation
• Includes
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Arteriosclerosis (R v Kemp 1956)
Alcohol-induced brain damage (R v Burns 1974)
Epilepsy (Bratty v AG 1962)
Hyperglycaemia in diabetes (R v Hennessey 1989)
Sleepwalking (R v Burgess 1991)
Nature and quality of the act
• Nature and quality are not separate constructs
– R v Codere 1916
• Ordinary man test
Did not know it was wrong
• R v Windle [1952] 2 Q.B. 826
– “I suppose they’ll hang me for this”
– Wrong?
• R v Johnson [2007] EWCA Crim 1978
– Wrong?
• Wrong = contrary to law
– Area for much debate
– “..even persons who are grossly disturbed generally
know that murder and arson are crimes.” Butler Report 1975
Defence of NGRI
Defence (balance of probabilities)
Prosecution (beyond reasonable doubt)
Court
Jury verdict
Written / oral evidence of 2 medical practitioners (1 s12 approved)
https://www.youtube.com/watch?v=l_6l8w9MJI0
Disposals following special verdict
1. Hospital order +/- Restriction Order
2. Supervision Order
3. Absolute discharge
Automatism
• Insane automatism = Insanity
• “an involuntary movement of the body or
limbs of a person…that, at the material time
had occurred…a complete destruction of
voluntary control”
Automatism
• Internal / External factor debate in law
– Less clear clinically
• Important because of disposal
– Insane automatism (insanity)  disposals as
discussed
– Sane automatism  acquittal
Examples of automatism
• Unconscious whilst driving due to being hit by
a stone
• Overcome by a sudden illness
• Attacked by a swam of bees
• Concussion
• Being under hypnosis
• Being under the effects of anaesthesia
Examples of automatism
Epilepsy
Sleepwalking
• Case law has found
insanity to be
appropriate
defence
• Out of keeping with
medical
understanding
• Led to findings of
both sane and
insane automatism
• But can
sleepwalking be a
defect of reason?
Examples of automatism
Diabetes
• Internal / External factor divide
• Hyperglycaemia  insane automatism
• Hypoglycaemia  non-insane automatism
• Medical evidence show both hypo and
hyper-glycaemia are features of disease
Diminished Responsibility
Diminished Responsibility
• Partial defence to murder
• The defendant (D) was suffering from
– an abnormality of mental functioning which
arose from a recognised medical condition;
– that substantially impaired his ability to do one or
more of the following
• Understand the nature of his conduct
• Form a rational judgement
• Exercise self-control; and
– Provides an explanation for D’s acts and omissions
in relation to the killing
Diminished Responsibility
• Abnormality of mental functioning
– Reasonable man would term in abnormal
• Recognised medical condition
– Intended to allow valid medical diagnoses linked
to valid classificatory systems
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Asperger’s syndrome
Depression
Schizophrenia
Psychopathy
Battered woman syndrome
PND & PMS
Epilepsy
Diminished Responsibility
• Raised by defence on balance of probabilities
• Decided by jury
• If successful, defendant is liable to
manslaughter conviction
• Wider range of sentencing options available to
judge
Loss Of Control
Loss of Control
• Replaced common law defence of provocation
• Partial defence to murder
• Judge decides if there is enough evidence to
raise the defence, then burden of proof is on
prosecution to prove it is not satisfied
• All 3 criteria must be satisfied
Loss of Control
Acts or
omissions in
relation to
killing resulted
from loss of
control
A person with
similar
characteristics
may have acted
in the same way
The loss of
control had a
qualifying
trigger
Psychiatric Evidence
• Psychiatrists may give evidence in relation to
the person’s ‘woundability’ in response to the
qualifying triggers
– E.g. depressive disorder may make someone more
easily wounded by taunts
Involuntary Intoxication
Intoxication
• A drunken intent is still an intent (R v Kingston
[1995])
• Involuntary intoxication
– Alcohol / drug dependence syndrome
– Must be no control at all
• If didn’t know the drug would have that effect
could be involuntary
Duress
Duress
• Defence based on reacting to specific threats
or circumstances.
• Complete defence
• Duress of threats (coercion)
• Duress of circumstances (necessity)
• Defence of duress does not apply to murder,
attempted murder or treason
Duress
• Psychiatric evidence may be relevant where
the person had a MD that may have reduced
their fortitude to below reasonable.
Amnesia
Amnesia
• Amnesia for an offence is not a defence in law
• Clinical assessment – read EVERYTHING
• Dissociative amnesia
– Patchy amnesia
– Emotionally significant events
– Other symptoms of dissociation must be present
• Alcohol-induced amnesia
Malingering
Malingering
• Not an ICD-10 / DSM diagnosis
• Intentional production of false or grossly
exaggerated physical or psychological symptoms
motivated by an external incentive
• Prevalence
– General population <1%
– General psychiatric patients 0.4 – 0.8%
– Prisoners and forensic patients – no data
Clues to a malingered defence
• Resnick (2003)
– Non-psychotic, alternative rational motive
– Atypical hallucinations / delusions
– Crime fits established pattern of criminal conduct
– Absence of psychosis during evaluation
– Partner in crime
– Inconsistent level of functioning
Ganser Syndrome
• A syndrome of
– Approximate answers
– Clouding of consciousness
– Conversion symptoms
– Hallucinations
– Abrupt resolution with amnestic gap
• Best avoid this diagnosis
Assessment
• Very thorough history and MSE
• Collateral history is important
• Structured psychometric tests can be used
– MMPI-2
– SIRS
– TOMM
Aggravating & Mitigating Factors
Aggravating Factors
Greater degree of harm
• Victimising vulnerable
people
• Offending against
someone serving public
• Multiple victims
• Causing serious injury /
mental trauma
• Offending against / in
presence of children
Greater degree of
culpability
• On bail for another
offence
• Hate crime
• Planning
• Professional criminal
• Under the influence
• Weapon
• Abusing position of trust
Mitigating Factors
Lower culpability or less severe harm caused
• Provocation (not for murder)
• Relevant disability or mental disorder
• Young / vulnerable / immature
• Limited role in offence
• Remorse
• Reporting to police
• Pleading guilty
Psychiatric Evidence
• May be instructed to prepare a report on a
defendant’s mental disorder for the purpose
of sentencing
• May be used in mitigation
• May highlight aggravating factors
QUESTIONS?