While we wait even longer for the English Law Commission to deliberate on the future of the insanity defense, it is worth noting that events have supersed my last blog. Two years ago, a “devoted husband” who said he killed his wife because he thought she was an intruder has been freed by a judge, who told him he bore no responsibility (the news item dated 20 November 2009 is on the BBC website here).
Brian Thomas, 59, admitted killing Christine, 57, in their camper van, but blamed his rare sleep disorder. The judge told the jury to declare Mr Thomas, of Neath, not guilty over the death in Aberporth, Ceredigion in 2008.
The case involved automatism as a cause of ‘insanity’. Automatism is essentially a legal defense, arguing that a person cannot be held responsible for their actions because they had no conscious knowledge of them. It is a legal defense in the sense that the correlates of what is happening in the brain are poorly understood, therefore leaving psychiatrists with some difficulty in providing evidence on it for thecourts.
They drew attention to the fact that the present law derives from a work written in 1797. The current test uses out-of-date language (the accused has to be suffering from ‘a complete alienation of reason’). This terminology cannot be easily understood by persons who have to apply it, such as psychiatric experts or jurors. Clearly, this definition does take into account the rapid advances in cognitive neuroscience, nor in legal academia about the nature of responsibility.
The Scottish Law Commission further argued that the reformed defense should require the presence of a mental disorder suffered by the accused at the time of the alleged offence. The existence (or non-existence) of a mental disorder in a particular case would normally be a matter for expert, psychiatric evidence. The core element of the defense should be that, by reason of a mental disorder at the relevant time, the accused was unable to appreciate the nature or wrongfulness of his or her conduct. Now the hard part! What would the defendant or his lawyer need to prove that this was the case at the time?
The problem is obviously the defendant can be made subject to all sorts of complicated tests. For example, it is known that many legal diagnoses of insanity actually correspond to a diagnosis of psychosis or schizophrenia. However, for such patients, an electroencephalogram or MRI (advanced brain scan) can be normal. And what about proving that the defendant suffers from some abnormality in moral thinking? The group led by Josh Greene at Harvard has only just begun to develop such tests, and to find out how the brain processes moral behaviour. Or could it be a problem with impulse control? Or could it be that the defendant simply has no idea about his own mental state, what the neuropsychiatrists called “anosognosia”?
The upshot is that the law is ripe for reform. People, however, disagree how. One valid view is that the defense of insanity should be simply abolished. Abolition of the defense has been considered in academic literature for some time. Furthermore as a reaction to the Hinckley case in 1982 some states in the USA enacted measures to abolish the insanity defense.
There is now the added issue of how the English law can be reconciled with European law. Article 5(1) of the European Convention of Human Rights provides for a general right to liberty and security of a person and states that no one “shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” One of the specified cases is in paragraph (e) of that article which provides for “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrant.”
A fascinating legal journey has now begun, and at present the destination is unclear. Watch this space!
@legalaware has a Ph.D. in cognitive neuropsychology from the University of Cambridge and a LL.M. in international legal practice from the College of Law. The events reported here are true to the best of the knowledge of the author, according to published reports currently available.
