CRIMINAL INSANITY

Is there a difference between insanity for criminal purposes and insanity, as meant by the man in the street or doctors? The answer is yes, as two recent cases have demonstrated.

The first was the trial of Gu Kailai, wife of the disgraced Chinese politician Bo Xilai. After admitting that she had murdered British businessman Neil Heywood, she was given a suspended death sentence instead of the normal (for China) execution. Although this was no ordinary trial, she had pleaded in mitigation that she had suffered a "mental breakdown". Suspended death sentences in China are often converted into long prison sentences, and it is even possible that Ms. Gu may be released at some point in the future.

The second was the conviction last week of Norwegian Anders Behring Breivik, who had admitted murdering 77 mostly young people last July. Most people would consider Breivik more than a bit of a nut. But the Norwegian court judged that he was sane at the time of the attacks, thereby enabling him to be sentenced to ordinary imprisonment instead of being put in a secure medical institution.

In common law jurisdictions such as England and the U.S., criminal insanity is governed by the so-called M'Naghten rules, as amended. In 1843 Daniel M'Naghten shot and killed at point-blank range the secretary to the then Prime Minister Sir Robert Peel. It was generally assumed at the time that he was intending to shoot Peel himself, but had got the wrong man. At his trial for murder, he was acquitted on grounds of insanity, and committed to a mental institution. Following the trial, the House of Lords asked a panel of judges a series of questions about the insanity defence, and the answers have become the cornerstone of this area of the law.

The crucial part is that "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". The disease of the mind formulation can give rise to problems. Crimes committed by a diabetic having a fit because of a lack of insulin would lead to a charge of not guilty by reason of insanity; but those committed by a diabetic having a fit because he had taken too much insulin would be ordinary crimes (the insulin is an external factor, not a disease of the mind). Crimes committed while sleepwalking would also be covered by the insanity definition. Because of the stigma of insanity, some defendants of this kind have chosen to plead guilty, even though the insanity defence would have been open to them.  

Medical knowledge of mental illness has increased hugely since 1843, so it seems odd to base modern decisions on something so old. Judges would undoubtedly - and rightly - say that changing such a controversial and long-standing set of rules should be the duty of Parliament, not them. Sadly, Parliament does not seem minded to try.

Walter Blotscher