Psychiatric Defences MRCPsych Lecture

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1 Psychiatric Defences MRCPsych Lecture Dr Abebe Ejara Consultant Forensic Psychiatrist 8 November 2016

2 Crime Crime is an act or omission that contravenes the law Criminal Law A behaviour that should be morally censured and the responsible person punished Civil Law Torts or wrongs such as libel, product liability, negligence Courts aim to restore the position of the wronged party than punish the responsible person Defence to a crime: Justifications, excuses, explanations. What is criminal changes with time depending on parliamentary legislation and public attitude

3 Main Categories of Crime Offences against person Assault, murder Sexual offences Rape, indecent exposure Public order offences affray Possession offences Weapons, drugs Property offences Criminal damage, arson Offences of dishonesty Theft, fraud, deception Offences against the state Treason, terrorism Inchoate offences Inciting, aiding and abetting, attempt to robe, conspiracy to robe

4 Elements of Crime The act is voluntary or willed Actus reus the conduct Mens rea the state of mind An act does not make a man guilty of a crime, unless his mind be also guilty. (Actus non facit reum, nisi mens sit rea) (Haughton v Smith) Punishment is justified when the accused is at fault, commits the act with intent

5 With respect to intent: Intent in Crime Strict liability No intent required, just proof of the act or omission e.g. unlawful parking, TV without license, outrageous public decency Basic intent General sense of intending e.g. common assault Specific intent The offender acted to achieve specific consequences e.g. GBH with intent, arson with intent to endanger life, indecent exposure, trespassing to steal Oblique intent When there is no direct evidence of intent, but inference can be made of the intent. E.g. D setting fire to a house knowing V is inside (oblique intent is arson with intent to endanger V s life) At times actus reus and mens rea merge: e.g. possession of weapons, and drugs

6 Defences to Crime Negation of one or both elements of crime 1) Psychiatric defences aim to negate the mental element of crime The capacity to form intent depends on the person s state of mind. E.g. s18 wounding with intent to s20 Assault Exemption from culpability e.g. Automatism, insanity Reduction of culpability e.g. DR, infanticide 2) Mental Disorders could also mitigate the punishment 3) Others are diverted from the CJS CJ Liaison services Diversion team Prosecution not in public interest

7 Burden of Proof Defence:- on balance of probability Verdict of guilt:- beyond reasonable doubt

8 What happens when a crime is committed? Arrest Fitness to be detained Is immediate investigation or treatment needed in hospital? Is not doing so likely to have a serious consequence? Police interview (PACE 1984) Fitness to be interviewed Significant harm (mental or physical) from the interview Reliability of evidence Ability to understand the interview and give rational answers Suggestibility (false confessions) under pressure Unreliable evidence will not be admitted in court

9 Defences once Charged with Offence Mitigation of Intent to reduce liability E.g. Reduction of crimes of specific intent to that of corresponding basic intent Section 18 to section 20 wounding due to intoxication But intoxication (voluntary) is established as NOT a defence, and may only be used to reduce crimes of specific intent to that of basic intent.

10 Main Psychiatric Defences (Un)fitness to plead and to stand trial Insanity Automatism Diminished Responsibility

11 Fitness to Plead Trial can proceed only if the defendant is mentally able to participate Presumption of fitness Decision of fitness by the Judge On balance of probability Expert evidence required Note fitness to plead vs fitness to stand trial

12 Fitness to plead criteria R v Pritchard [1836] EWHC KB 1 (21 March 1836) A person, deaf and dumb, was to be tried for a capital felony; the Judge ordered a jury to be impanelled, to try whether he was mute by the visitation of God, the jury found that he was so. The jury were then sworn to try whether he was able to plead, which they found in the affirmative; and the prisoner, by a sign, pleaded - Not guilty. The Judge then ordered the jury to be sworn to try whether the prisoner was " now sane or not "; and on this question, his Lordship directed the jury to consider whether the prisoner had sufficient intellect to comprehend the course of the proceedings, so as to make a proper defence, to challenge any juror he might wish to object to, and to comprehend the details of the evidence; and that if they thought he had not, they should find him not of sane mind. The jury did so; and the Judge ordered the prisoner to be detained under the stat 39 & 40 Geo III. c 94, s 2.

13 Fitness to plead criteria The wording of the criteria has changed over the years Incapable of one of the following Understanding the charge or charges Entering a plea Challenging jurors Instructing his defence Following the proceedings or Giving evidence in own defence R v M (John) [2003] EWCA Crim 3452

14 If Not fit to plead Trial of facts and Disposal if found to have committed the act(s) charged Hospital Order Supervision Order Absolute Discharge Await until the defendant is fit The accused may appeal against finding of unfitness

15 Legislation Criminal Procedure (Insanity) Act 1964 Finding of unfitness to plead. [4. (1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried. (2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence. (3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined. (4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises. (5) The question of fitness to be tried shall be determined [by the court without a jury.] (6) [The court] shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved. Amendments Domestic Violence Crime and Victims Act 2004 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991

16 CPIA 1964, section 4A Finding that the accused did the act or made the omission charged against him. [4A. (1) This section applies where in accordance with section 4(5) above it is determined by a [court] that the accused is under a disability. (2) The trial shall not proceed or further proceed but it shall be determined by a jury (a) on the evidence (if any) already given in the trial; and (b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. (3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him. (4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion. [(5) Where the question of disability was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom he was being tried.] Amendments Domestic Violence Crime and Victims Act 2004, wef 31/3/05 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, wef 1/1/92

17 CPIA 1964, section 5 (disposal) Powers to deal with persons not guilty by reason of insanity or unfit to plead etc. [5. (1) This section applies where- (a) a special verdict is returned that the accused is not guilty by reason of insanity; or (b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him. (2) The court shall make in respect of the accused- (a) a hospital order (with or without a restriction order); (b) a supervision order; or (c) an order for his absolute discharge. (3) Where- (a) the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and (b) the court have power to make a hospital order, the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

19 M Naghten Rules Insanity every man is to be presumed sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong. Lord Chief Justice Tindal, 8 E.R. 718, (1843) 10 Cl. & F. 200

20 Defect of reason Insanity (cont) Deprivation of memory, reason, understanding Disease of the mind Mental function, not brain (R v Kemp, R v Sullivan) Puts a limit on the phrase defect of reason (example it excludes defect from lack of education) Nature and Quality The physical character of the act, not moral xer. Not knowing what he was doing The consequences, or the circumstances (R v Codere)

21 Wrong Insanity (cont) Legal wrong, narrow cognitive defn, not moral The law, not the moral view of one person or a group or majority, nor common sense approach R v Windle (1952) ( a case of folie a deux) R v Dean Johnson (2007) R v Chaulk, (Stapleton v R not followed) Review of psychiatric reports indicates most opinions are based on whether the defendant s action is morally justified if his delusions were in fact reality. (Kearns & Mackay, 1999) Moral approach means a person who knew what he was doing, and also knew it was contrary to the law would be acquitted by the law.

22 Legislation:- CPIA 1964, s 1 Acquittal on grounds of insanity 1. The special verdict required by section 2 of the Trial of Lunatics Act 1883 (hereinafter referred to as a special verdict ) shall be that the accused is not guilty by reason of insanity; and accordingly in subsection (1) of that section for the words from a special verdict to the end there shall be substituted the words a special verdict that the accused is not guilty by reason of insanity.

23 Trial of Lunatics Act Special verdict where accused found guilty, but insane at date of act or omission charged, and orders thereupon. (1)Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict that the accused is not guilty by reason of insanity.

25 Definition: Automatism An involuntary behaviour over which an individual has no control (Fenwick, 1990) An act done by the muscles without any control by the mind (Lord Denning, Bratty v AG for NI [1963] 2 All ER 868) The concept E.g. sleep walking Common law defence No liability for unconscious/involuntary action The law does not wish to punish those who cannot be held responsible

26 Automatism is NOT Difficulty to control impulse Impaired state of mind Lack of memory for the act Unintentional/consequence not foreseen Irresistible impulse

27 Burden of Proof Presumption of innocence Prosecution must prove every elements of crime The law also assumes people act voluntarily If the defence wish to displace this presumption, they must give the evidence for the contrary (Hill v Baxter) The standard of proof for the defence is on the balance of probabilities For a guilty verdict, the jury should be satisfied beyond reasonable doubt that the act was voluntary The burden on defence reflects policy concern But Article 6(2) contravention?

28 The Steps in Defence of Automatism Laying the proper foundation Hill v Baxter, Watmore v Jenkins, Broome v Perkins, R v Christian Poole Satisfy the judge a jury can find the accused acted involuntarily Decision on insane vs non-insane automatism

29 Automatism (cont) Insanity defence was more relied on pre 1957 Murder (Abolition of Death Penalty) Act 1965 Elements of DR easily met than insanity Conviction for manslaughter instead of acquittal Increasing use of insanity defence since 1991 (Mackay) 1st five years ( ) 44 cases (4 murder) Prev 5 years ( ) 20 cases Over 15 years from cases Reason - disposal options

30 Automatism (cont) Whether the underlying cause of automatism amounts to disease of the mind determines insane vs noninsane automatism Two approaches Continuing Danger Internal vs External Cause Differences in Court decisions but case law building up

31 Sleep walking (Somnambulism) Traditionally regarded as a self evident example of non-insane automatism Apparent purposeful behaviour in sleep

32 Sleep Physiology P Zubieta

33 Diagnosis of Sleep Walking Rising and walking about (range of activity, apparently purposeful) First third of nocturnal sleep Blank staring face, unresponsive, difficult to wake No memory for the episode Initial confusion/disorientation on waking, but no impairment of mental activity within several minutes of waking

34 Other supporting evidence in court cases of Somnambulism Personal history of sleepwalking Family history EEG evidence In case of violence/offence Absence of motive/planning Out of character behaviour No effort to flee or hide evidence of crime

35 Others Sexual offences during sleep walking Psychological blow automatism self induced automatism

37 Diminished Responsibility Partial Defence Reduces culpability Does not absolve liability Only to Murder - not other charges Other Partial Defences to Murder Suicide Pact Infanticide Loss of control/provocation

38 Homicide Act ) Persons suffering from diminished responsibility. (1)Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

39 R v Byrne (1960) Killed and mutilated a young girl He was suffering from irresistible impulse which he was unable to control Abnormality of mind was defined as A state of mind so different that a reasonable man would term it abnormal. Wide causes, but INSIDE SOURCE, not external Excludes alcohol, drugs Jury decision, but they don t have to follow medical evidence Balance of probability

40 S2 amended by Coroners and Justice Act Persons suffering from diminished responsibility (England and Wales) (1) A person ( D ) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which (a) arose from a recognised medical condition, (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and (c) provides an explanation for D's acts and omissions in doing or being a party to the killing.

41 New DR (Cont) (1A)Those things are (a) to understand the nature of D's conduct; (b) to form a rational judgment; (c) to exercise self-control. (1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.

42 Diminished Responsibility & Alcohol Alcohol features in 80% homicides But alcohol not accepted as injury (R v Di Buca, 1959) or inherent cause of abnormality of mind (R V Fenton, 1975)

43 R v Gittens [1984] QB 698 Alcohol and Depression (inherent cause) Killed his wife and step daughter Jury should be directed to disregard the effects of alcohol or drugs But consider the combined effects of factors that fall with in the act (s2)

44 R v Tandy [1989] 1 WLR 350 Alcohol Dependence Killed her daughter For alcohol dependence to amount to Abnormality of mind Brain injury from intoxicants If no brain injury, drinking must be involuntary If 1 st drink of the day was not involuntary, the rest the drink that day is not involuntary

45 R v Dietschmann, 2003, HL Alcohol, Grief Reaction/Depression AC Defence should prove that if D did not take alcohol, the killing would have still happened and he met DR HL there is no requirement for the abnormality of mind to be the sole cause of the defendant's acts in doing the killing. where the jury believed that, if the defendant had not taken alcohol he might not have killed, the defence of diminished responsibility may still be available if the jury are satisfied that, despite the alcohol being voluntarily taken, his mental abnormality substantially impaired his mental responsibility for his fatal acts

46 R v Wood [2008] EWCA Crim 1305 Alcohol dependency Killed a gay man Brain damage not needed (extent and nature of dependency constitutes abnormality of mind) Exclusively consider alcohol consumed as the direct result of dependency, not others Not every drink to be involuntary

47 R v Stewart [2009] EWCA Crim 593 Alcohol dependence Jury to base decision on the extent and seriousness of the dependency the extent to which his ability to control his drinking or to choose whether to drink or not was reduced whether he was capable of abstinence from alcohol and, if so, for how long and whether he was choosing for some particular reason to decide to get drunk or to drink even more than usual the defendant s pattern of drinking in the days leading to the day of the killing, and on the day of the killing itself notwithstanding his consumption of alcohol, his ability, if any, to make apparently sensible and rational decisions about ordinary day-to-day matters at the relevant time

48 Case Example 40 years old female, employed 4 days of psychotic symptoms Previous OD aged 16 Paranoid and persecutory delusions Killed her 2 years old son Went to police station carrying the body Discuss defences available to her

49 Test Your Knowledge 1. Diminished Responsibility can only be raised by defence (T/F) 2. Which is not partial defence 1. DR 2. Insanity 3. Automatism 4. Infanticide 5. Suicide pact 6. Loss of control

50 Test Your Knowledge 1. Automatism leads to acquittal (T/F) 2. Disposal options in insanity and unfitness to plead are exactly the same (T/F) 3. Fitness to plead refers to state of mind at the time of committing an act of crime (T/F) 4. Mentally ill individuals cannot be convicted of crimes of specific intent given such crimes require mens rea (T/F) 5. Alcoholism is a defence to murder after R v Stewart (T/F)

51 Test Your Knowledge 6. Defence has to prove the case on balance of probability (T/F) 7. Presumption of innocence is not compatible with HRA (T/F) 8. LD can lead to suggestibility during police interview (T/F) 9. Sleep disorders are recognized defence to crime (T/F)

52 Test Your Knowledge 10.Which of these can be cited in support of the defence of diminished responsibility Personality disorders Psychosis Panic disorder PTSD Night mares Irresistible impulse PMT folie a deux Harmful drug misuse Intoxication Epilepsy

1. The physical element of a crime is the a. mens rea b. actus reus c. offence d. intention

1) 11 CHOOSE THE BEST CHOICE AND MARK IT ON YOUR ANSWER SHEET. Part A: Fill in the Blanks 1. The physical element of a crime is the a. mens rea b. actus reus c. offence d. intention. A person is where