RoR WS – Rethinking Legal Insanity

This talk will give an update on the number of successful insanity defences in England and Wales together with some remarks about how the M’Naghten Rules might be interpreted to operate in a manner which is more appropriate for the 21st century.

The M’Naghten Rules of insanity play a dual role in the criminal law, underpinned by dual rationales. One of these roles is plainly exculpatory; they provide a complete defence to defendants whose non-culpability proceeds from mental disorder alone. The other role, however, may be better characterised by its exclusionary or diversionary effect. We identify this where the insanity ‘defence’ is applied despite the defendant satisfying alternative grounds for exculpation, diverting him or her from an unqualified acquittal to the disposal options available via the special verdict of ‘not guilty by reason of insanity’. The rationale for this second role is therefore less a backward-looking assessment of the defendant’s non-culpability, and rather more about a forward-looking assessment of their dangerousness and/or medical need. We make the case for the partial abolition of insanity, maintaining insanity only where it applies as a genuine supervening defence.

This paper considers the implications of the UN Convention on the Rights of Persons with Disabilities (CRPD) for diversion of persons considered to have a disability from the criminal justice system. It discusses the different forms of diversion and aspects of diversion provisions, processes and initiatives that run counter to the CRPD. Criminal responsibility as it relates to diversion will be addressed. The paper contemplates both the conflicting and complementary issues that emerge from international human rights law, the social model of disability, the human rights model of disability and therapeutic jurisprudence, as it relates to diversion. The paper outlines impediments to developing public policy and enacting law reform that reflects the requirements of the CRPD, using examples from Ireland and other jurisdictions. The paper makes some recommendations on how to reimagine diversion in a way that better aligns with the CRPD.

A foundational principle of criminal law is that there is no crime without a guilty mind. Since Ancient Rome, the law has made exceptions for those deemed incapable of forming the requisite frame of mind to commit a crime. Following the decision in M’Naghten, modern criminal law deploys capacity-based defences to the case of individuals who, due to a mental disorder, are considered not to have fully intended the consequences of their actions. Yet, this approach has been criticised as negating the criminal responsibility and legal capacity of disabled people and may therefore be contrary to the UN Convention on the Rights of Persons with Disabilities. What, then, is the alternative? One possible solution is adjudicating criminal responsibility based on ordinary principles of mens rea. This presentation will consider some of the challenges of such an approach, specifically regarding the degree to which such doctrines make particular assumptions regarding human decision-making, which may not reflect the decision-making processes of neurodivergent people.

Neurodiversity in this context has three interconnected meanings:

1. A worldview that asserts that bodymind diversity is a feature of humanity;
2. An identity based on neurodivergence as a personal characteristic; and
3. A social movement which rejects the pathologisation of bodymind differences and seeks transformative societal change to improve the lives of neurodivergent people.

This paper adopts the Convention on the Rights of Persons with Disabilities (CRPD) as a lens of analysis to show that the insanity doctrine, its dispositions, and the institution of criminal responsibility, discriminates against the category of people with mental disabilities to whom the defence applies. Broadly, the criminal justice system operates to deny autonomy, capacity, and responsibility on the basis of disability. This in turn legitimises deprivations of liberty in order to facilitate coercive habilitative interventions, which aim to restore the person to standards of normative functioning. On the one hand, the CRPD is instructive in drawing out the discrimination and disadvantage perpetuated against people with disabilities by insanity and its dispositions. However, on the other, it is argued that the CRPD Committee’s interpretation of legal capacity limits its call for rights to that which are available within the existing institution of criminal justice. I argue that the CRPD Committee’s interpretation of equal legal capacity constructs a flawed conception of autonomy. Rather than challenging the source of discrimination on which the insanity doctrine and its dispositions are premised, a specific notion of capacity-responsibility is reinforced, which has the effect of situating defendants with mental disabilities as the normative other. By reinforcing the norm of individual responsibility in this way, the CRPD Committee’s construction of autonomy thus obfuscates the inherent structural injustice in the criminal justice system which is the ultimate source of oppression against the category of defendants to whom insanity applies.

Most provisions of the UN Convention on the Rights of Persons with Disabilities (CRPD) have attracted widespread approval. However, the interpretation of Article 12 by the CRPD Committee and Office of the High Commissioner for Human Rights has led to arguments that the CRPD requires the abolition of the insanity defence. This paper considers what reform is required to comply with the CRPD Committee’s interpretation of legal capacity. It suggests that the insanity defence should be replaced with several new provisions which assess the criminal liability of a person with a psychosocial disability on a non-discriminatory basis. It is proposed that the cognitive limb of insanity should be replaced by a legal rule which allows for evidence of a psychosocial disability to negate mens rea. The evaluative and volitional limbs (in relevant jurisdictions) should be replaced with a new defence which focuses on the defendant’s ability to generate alternative choices. The third suggested approach concerns crimes without a subjective mens rea. These offences pose a particular challenge as they do not necessarily involve moral fault. It is suggested that an approach based on Beccaria’s principle of legality could form the basis of a limited defence for these offences. This research was funded by the Irish Research Council’s Government of Ireland Postgraduate Scholarship.

In this paper, I identify objective tests as a significant theoretical barrier to integrated models of mental condition-based exculpation in practice.  With reference to case law, I illustrate the difficulty courts have faced in modifying objective standards so as to coherently apply them to defendants with mental difference. I suggest, further, that this difficulty may be attributable to an overreliance on the concept of the “reasonable person” as a heuristic for guiding juries in determining whether a defendant breached normative expectations of conduct. My proposal is that the conceptual muddle of the “reasonable unreasonable” defendant may be avoided by reframing objective tests to strike more directly at the question of whether a defendant fell short of fair expectations, without reference to the “reasonableness” of that defendant’s beliefs, restraint, conduct, etc.. I conclude with an illustrative reframing of the objective mens rea standard applied in the context of sexual offences.

This talk provides an account of how Swedish criminal law operates without an insanity defense and presents critical reflections regarding the lessons that can be learned from an integrated approach to attribution of criminal responsibility as well as suggestions for successful integrationism. 

This talk will discuss the process of, and key issues relating to, legal reform of insanity in Norway.  It will also address what I see as the most problematic issues regarding the rights of persons with disorders and disabilities (with reference to the CRPD).