Mental Disorder Offenders
Should mental disorder offenders be diverted from the criminal justice system into the health and social services sectors wherever possible?
The purpose of the criminal justice system is an essential consideration when addressing this issue. Though the issues concerned are to a large degree those of moral philosophy, and as such capable of supporting varying degrees of opinion and interpretation, in broad terms the criminal law performs four primary functions: those of retribution, deterrence, incapacitation and rehabilitation. This paper aims to provide a brief synopsis of each of the functions and their relevance to issues of mental disorder, before proceeding to analyse those substantive areas of the criminal law that are of the most relevance with regard to issues of mental capacity.
The principle of retribution is undoubtedly the most open to question in a modern context, but essentially it proceeds on the basis that it is morally acceptable to hate criminals and that punishment gives society an avenue through which to express this sentiment . This public denunciation of crime acts as a deterrent to others, defines the parameters of normative behaviour, and prevents individual retribution by providing a collective mechanism for satisfying victims' desire for vengeance. This line of argument however works on the principle that the offender is seen to be getting their 'just desserts'; the punishment must fit the crime. In this context the punishment of those suffering from mental illness achieves little, as few people would feel any satisfaction at inflicting punishment upon those who are not truly responsible or culpable for their actions. It should be noted however that this is at heart a moral issues and there are other possible approaches .
The second principle is that of deterrence, building on the idea of social stigma being attached to criminal behaviour and also fear of the attendant punishment. Again it is questionable whether this purpose is in any way fulfilled by punishing those under a mental incapacity that prevents them from appreciating the consequences on their actions, either upon their victims or society as a whole, and those who cannot appreciate the causal link between their actions and the punishment that they may be forced to undergo. The rules on diminished responsibility and insanity, as will be explored later, have particular relevance in this area. As H. Packer argues in 'The Limits of Criminal Sanction' :
"Deterrence…does not improve the morals of those whose value systems are closed to further modification, either psychologically…or culturally…".
Incapacitation is an obvious concept: by imprisoning the perpetrator of criminal offences one protects the rest of society from further antisocial and criminal behaviour. This applies to those who commit crimes irrespective of their cause, albeit that a secure hospital may be a far more effective and less stigmatised environment that a prison cell where those causes have a foundation in mental incapacity. Nevertheless in the cases of violent crimes, even murder, the need to protect other members of society from the perpetrators of such offences might arguably be felt to override the finer points of assessing the accuser's moral responsibility.
The principle of rehabilitation expands upon this last point: if the perpetrator of a crime is ever to be reintegrated into society and cured of their antisocial behaviour, the treatment they receive must inevitably address their inherent needs. More often than not the prison environment lacks the facilities to treat those suffering from mental disorders. Though there is scope for sentencing to take account of moral culpability this ought not to disguise the fact that the need to rehabilitate offenders requires particularly acute consideration (albeit often in conflict with the retributive and deterrent functions of the criminal law). It is important to remember that the criminal law prohibits acts and circumstances, not desires or motivation.
However, the law has long since recognised that there is nothing to be gained in punishing those who had no conscious will to commit prohibited acts. In the sphere of homicide defences this issue has received extensive consideration and is of relevance in the areas of diminished responsibility, insanity, and following Smith (Morgan) [2000] 3 WLR 654 to provocation. According to Home Office statistics about 50% of those convicted of manslaughter due to diminished responsibility receive hospital orders under the Mental Health Act 1983, s.37. As can be seen from this, the criminal justice system does have the facility to remove the mentally ill from the prison system, albeit that they do not necessarily avoid the stigma of criminal liability.
The defence of Diminished responsibility is set out in S2 Homicide Act 1957:
"Where a person kills…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 or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts…". The defence of diminished responsibility has all but replaced the defence of insanity on a charge of murder where the accused was suffering from some sort of mental incapacity.
The question is ultimately a moral one for the jury - is the mental incapacity such as to 'substantially impair [the defendant's] responsibility?' The inevitable subjectivity of this has been heavily criticised by amongst others Glanville Williams, who writes: "the defence…is interpreted in accordance with the morality of the case rather than as an application of psychiatric concepts. Where sympathy is evoked…it seems to be dissolving into what is the equivalent of a mitigating circumstance." It is submitted in agreement with this analysis, that the result is extremely inconsistent . Even if one is not of the belief that the mentally ill should be diverted into the social services sector wherever possible, it is surely desirable that there should be a good deal of consistency as to when this should occur.
The law in this area has been confused by the decision in the case of Smith (Morgan) on the issue of provocation, in which it was held that the defendant's depressive illness ought to be taken into account in determining the degree of self control to be expected of him. It is submitted that in a bid to avoid having to consign a sympathetic defendant to a mandatory life sentence, the House of Lords rather wilfully confused issues of provocation with diminished responsibility. When the upper echelons of the judiciary are going to such lengths to keep the mentally ill out of the more draconian reaches of the criminal justice systems the title question might appear to have an obvious answer!
The defence of insanity is relevant to a range of offences. Issues of the accused's mental state moreover go beyond the substantive issues of the offence in question. Also at issue is the mental state of the accused at the time he must answer a plea to the charge against him: under s4 of the Criminal Procedure (insanity) Act 1964, as amended, the accused may be deemed unfit to plead where he cannot understand the charge against him and the difference between a plea of guilty and not guilty. This is clearly an extremely important issue as a defendant who is medically unable to understand such a simple issue is clearly going to suffer from further exposure to the criminal justice system. Quite apart from the human rights issues involved under Article 6(1) ECHR, there can be little benefit to wider society in forcing an incapable defendant through a system that they do not understand. Criminal stigma and criminal punishment are clearly inappropriate where the defendant doesn't understand the nature of the charges against them.
Nevertheless, even where defendant is found unfit to plead, if the jury finds that he did in fact commit the actus reus of the offence, it is for the judge to decide on the correct disposal. Whilst the range of remedies available to a judge in such a situation is a wide one, there is an important concern as to whether a medical expert would be better placed to make the appropriate assessment. Moreover where the penalty is prescribed by law, i.e. for murder, the court must order detention in hospital with restriction on discharge without a time limit under section 5(3) Mental Health Act 1983. It is submitted that the current state of the law is rather contradictory and that a defendant should either be removed entirely from the criminal justice system once they have been found unfit to plead, or the criminal justice system itself should allow wider discretion even in murder cases as to the range of remedies available and there should be scope for medical assistance in the decision process. In many cases, murder aside, where the facts are undisputed, a mentally disordered patient is often advised to plead guilty in the hope of receiving a hospital or probation order. A good example is the leading case of Sullivan [1984] AC 156 where D changed his plea after a trial ruling that his defence amounted to one of insanity. When faced with a choice between being branded insane or being branded a criminal, many defendants, as in the present case, opt for the latter. This is a fundamental conflict with human rights, under Articles 5(1) and 6(1) ECHR as defendants should have an avenue through which to contest their guilt without risk of detention under the category of insanity.
The substantive defence of insanity is moreover out of touch with modern medical practice, still governed by the McNaghten rules of 1843. To establish a defence of insanity the defendant must prove that he was suffering from a disease of the mind, giving rise to a defect of reason, such that he did not know the nature or quality of his act or that what he was doing was wrong.
There are some circumstances in which the defence may not be available to those with genuine mental impairment (e.g. the defendant who knows that what he is doing is wrong, but due to mental impairment cannot control his actions) and others in which sufferers from physical conditions such as epilepsy (Sullivan) or diabetes (Hennessy) are deemed to be suffering from insanity. This underlines the fact that there may be legitimate medical reasons as to why certain defendants should be removed from the full glare of the criminal justice system, even if they are not suffering from what the medical community would term a mental disorder. Even where a genuine mental disorder is at issue, in the presence of conflicting medical evidence it will be left to the jury to determine whether the defendant is suffering from a mental disorder allowing them to use the defences of insanity or diminished responsibility. There is a clear argument that recognition of mental disorders should not be left up to twelve inexpert assessors.
The incompatibility of the criminal law on insanity and the civil law under the Mental Health Act 1983 is also worthy of attention. The McNaghten rules cover persons such as epileptics, diabetics etc. who would not normally be liable to committal under the 1983 Act and overlooks others, such as those suffering from insane delusions and those subject to incontrollable impulses. This goes to the heart of a fundamental question; namely what should constitute a mental disorder for the purposes of the criminal law? The Law Commission's draft criminal code sections 34 and 36 makes welcome attempts to lend some clarity to this area. They set out a comprehensive list of problems that may constitute a mental disorder and allow for judges to have a greater discretion on sentencing, rather than relying on the somewhat piecemeal and artificial distinctions currently enshrined in the defences of insanity and diminished responsibility. Moreover under the draft rules diabetics and epileptics will only be liable to a verdict of mental disorder where their condition is severe enough to render them automatons. However these well intentioned reforms are yet to be implemented and, until such time as they are, it would be preferable for issues of mental health to be as far as possible removed from the confused confines of the criminal law.
As the law stands, it would seem therefore that defendants suffering from mental disorders ought indeed to be removed from the criminal justice system wherever possible. Unfortunately the high incidence of mentally disordered persons in the prison population demonstrates that the criminal justice system is failing both individual defendants and wider society. From the point of view of rehabilitating the offender it seems a foregone conclusion that the mentally disordered should be removed from the criminal justice system, especially its penal arm, as soon as possible. Where however the issue of incapacitating a potentially violent member of society, for the purposes of public protection, fits in with this principle is less easy to define.
It neatly highlights the extent to which viewing the criminal justice system and health and social services systems as mutually exclusive is to ignore the complexities of the issues at stake and the fact that mental disorders are often motivating factors in criminal behaviour, however imperfectly they are still understood. It is crucial moreover to note that the criminal law only concerns itself with issues of mental health when, at the very least, the actus reus of a crime has been committed. There are obvious limitations on the scope of the civil law to intervene before the defendant finds themselves confronted by the criminal law as everyone has the right to be presumed sane and it would be in conflict with fundamental human rights were the civil law to be too proactive in this area. To some extent therefore it is the criminal law that draws attention to the mental disorder and it is a question of approach as to how constructively the mechanisms of state are then able to respond. The very concept of criminal justice is unfortunately loaded with moral stigma and issues of retributive justice that seem inappropriate in the absence of moral culpability.
There are many stages in the criminal justice system, and the point in time at which the mentally disordered defendant should be removed from the system will be the subject of much debate. In the very simplest terms, few would argue that the defendant who has no moral culpability for his 'crime' should not be shielded from the penal elements of the system, especially imprisonment. However the range of mental disorders explored above indicates the wide distinctions between a defendant unfit to plead trial and those suffering from far milder mental disorders, even temporary disorders induced by inherent physical causes such as epilepsy and diabetes.
Any attempt to prescribe the particular point at which a given defendant ought to be removed for the criminal justice system risks appearing highly arbitrary. What is certain however, is that society gains little in terms of either deterrence or (one hopes) retribution by inflicting punishment on those who genuinely lack moral culpability. Instead the criminal justice system should balance the need to protect society against the needs to rehabilitate the offender: once these two objectives are allowed to become the over-riding principles behind the way the criminal justice system deals with mental disorder, there is no inherent reason as to why it should not be the appropriate forum for determining whether or not the perpetrator of any given actus reus would be more appropriately dealt with by means of medical treatment rather than punishment.
BIBLIOGRAPHY
Michael J Allen: Textbook on Criminal Law 6th ed.
Dine and Gobert: Cases and Materials on Criminal Law 3rd ed.
Simester and Sullivan: Criminal Law, Theory and Doctrine
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