Insanity as a criminal defence

The leading case concerning insanity as a defence to a criminal charge is R v M’Naghten (1843). M’Naghten tried to assassinate Sir Robert Peel, the then British Prime Minister. Instead, he shot Peel’s secretary, who died a few days later. M’Naghten was charged with murder but acquitted on the grounds that he was insane. The acquittal caused some controversy, so the House of Lords asked a panel of judges to review the law governing insanity. The two following rules arose:

• every defendant is presumed sane unless the contrary is proved;
• to successfully plead insanity, it must be clearly proved that at the time of committing the act the defendant was labouring under such a defect of reason, from disease of the mind, so as not to know the nature and quality of the act they were doing; or, if they did know it, that they did not know what they were doing was wrong.

The defence is proved on a balance of probabilities. It is usually a matter for counsel for the defence to raise the issue of insanity, though in R v Dickie (1984) it was held that the trial judge may raise the issue and leave it to the jury, after consideration of all the evidence, to decide whether the accused is insane.

If the defence is successful, then under s 2(1) of the Trial of Lunatics Act 1883, the verdict to be returned by the jury is ‘not guilty by reason of insanity’. The defence is only available to defendants charged with offences that require mens rea, ie, crimes which are not strict liability offences (DPP v H (1997)).

Under s 5 of the Criminal Procedure (Insanity) Act 1964, following a successful defence of insanity, the court can order the accused be admitted to a hospital, or make a guardianship, supervision or treatment order, or order an absolute discharge. In practice, the defence is now generally only pleaded when an accused is charged with murder and even then, rarely.

There is a difference between being legally insane and medically insane. For the courts, the question of insanity is decided as a matter of law according to the ordinary rules of interpretation, procedure and evidence.

The judiciary has, over the years, considered various mental states when dealing with the question of a disease of the mind. In R v Kemp (1956), the defendant suffered from arteriosclerosis. There was a difference of medical opinion about how much this disease affected his mind. The court held that, whichever medical opinion was accepted, the disease was one capable of affecting the defendant’s mind, and so was a disease of the mind within the M’Naghten rules. It was irrelevant whether the disease was one recognised medically as a mental disease.

In R v Hennessy (1989), the defendant was charged with taking a vehicle without consent. He was a diabetic who, despite needing to take insulin every day, had not done so for two or three days before the incident. He was also suffering from stress. He claimed that as a result of all this, he did not know what he was doing and so did not have the requisite mens rea. The judge was of the opinion that this was a disease of the mind within the M’Naghten rules and that the defendant was insane. The defendant then changed his plea to guilty and appealed against the trial judge’s ruling on insanity. The Court of Appeal upheld the trial judge’s ruling. Hyperglycaemia caused by the lack of insulin was a disease of the mind within the M’Naghten rules. The defendant was, at the material time, insane.

The case is illustrates how the test of insanity is legal and not medical, as a diabetic would not in most circumstances be considered insane. It is also a good example of how, in law, a person can be temporarily insane. In other words the law takes the view that it is possible for a person to be sane most of the time but suffer bouts of insanity. The M’Naghten rules only require a defendant to be insane at the time of committing the act.

The disease of the mind must cause a defect of reason so that the defendant either did not know the nature and quality of their act or did not know that what they were doing was wrong. In other words, the defendant must have lost their powers of reason. Being absent-minded or confused enough to be unable to reason correctly is not sufficient (R v Clarke (1972)).

‘Wrong’ here means legally wrong, as opposed to morally wrong. The defendant must be unaware that their acts are against the law. If the defendant knows their act is legally wrong, the insanity defence will fail. In R v Windle (1952), the defendant did suffer from a mental illness but admitted giving his wife a fatal dose of aspirin. He later said: ‘I suppose I’ll hang for this.’ He pleaded insanity but the defence was not accepted by the judge due to lack of evidence. His appeal was dismissed. The Court of Appeal held that ‘wrong’ means contrary to law and the appellant knew that what he was doing was contrary to law.