Criminal law - Defences - Insanity - Diminished Responsibility
The
defence of diminished responsibility and that of insanity may at first glance
appear to be very similar however when an in-depth analysis is taken one comes
to understand that the two could not be more apart. In order to understand the
distinctions, it is essential to understand what exactly these defences are and
what a defence is in general. A defence can be defined as a reason given by the
defendant as to why the plaintiff or prosecutor has no case as defined in
Black’s law dictionary.[1]
A defence is an excuse or reason that a defendant can raise in order to absolve
themselves of total or partial criminal liability. The defences in question
both deal with one’s psychological state. However, they possess differences
between themselves. This article provides an in-depth critique of the
differences between the two defences, helping us navigate the complex
intersections between law and psychology. This shall be achieved through
understanding the two individual defences, their origins and tests, and how
they contrast.
The
Defence of Insanity
The
defence of insanity is applicable when a person has a disease affecting his
mind that causes him to be incapable of understanding what he is doing and
strips him of his reasoning during the commission of a crime. Due to a lack of
understanding, he is deemed not criminally liable as prescribed in the Penal
Code[2].
The defence of insanity is a general defence and applies to any crime requiring
mens rea as a necessary element. This
means that when successfully applied it completely exonerates one of all
criminal liability.
It
is relevantly brought up where one claims to have been insane at the time of
committing the offence hence known as ‘raising the defence of insanity’. Where
one claims, however, that he or she was insane at the time of trial and thus
cannot understand any of the instructions, the defence becomes one of unfit to
plead. The defence of “insanity” however, must not be mistaken for the medical
term “insanity” which refers to the state of being mentally ill; madness [3]. The legal term “Insanity” is based on the
M’Naghten Rules which were formulated in the case of R v M’Naghten [4] in which Lord Chief Justice Tindal
stated
“To render a person irresponsible for crime on account of unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong.”
This
said case further entails that every person is presumed to be sane unless the
contrary is proved. It must also be shown that at the time of committing the
unlawful act, the accused was laboring under such a defect of reasoning from
the disease of the mind causing him not to know the nature or quality of the
act and whether it was right or wrong. Therefore, this establishes three
questions to be asked to determine insanity of which the answer must be yes.
I.
Whether the accused was
suffering from a disease of the mind
II.
Whether the disease of
mind gave rise to a defect of the mind
III.
Whether the accused was
not able to appreciate the wrongfulness of the particular act he was doing at
that time.
The
Defence of Diminished Responsibility
The
defence of diminished responsibility states that where a person kills another
or is a party to the killing they shall not be convicted of murder if they were
suffering from an abnormality of the mind arising from a condition of arrested
or retarded development of the mind or any inherent causes or is induced by
disease or injury which has substantially impaired his mental responsibilities
for his act or omissions in doing or being party to the killing as stipulated
by the Penal Code[5].
The defence of diminished responsibility provides that a person shall not be
charged with murder where he is suffering from an abnormality of the mind
caused by disease, injury, or retardation which has therefore impaired his
mental reasoning, causing him not to understand the gravity of performing the
killing or being a party to the said act. The defence of diminished
responsibility is a partial defence and only reduces a charge from murder to
manslaughter. In addition to this it is a partial defense and only applies to
murder. This means the successful raising of the defence is incapable of
completely exonerating a charge. It is the responsibility solely of the defense
to raise the defense of diminished responsibility as was stated in R v Campbell[6]
as pleading diminished responsibility implies an admission of guilt[7].
The burden of proof is on the accused.
To
successfully raise the defense of diminished responsibility there must be three
necessary elements present.
1. The
accused must be suffering from a disease of the mind.
2. This
disease must be caused by either a condition of arrested development of the
mind, a condition of retarded development of the mind, or any inherent or
induced by disease or induced by injury.
3. Any
of these causes or inherent have substantially impaired the defendant’s mental
responsibility.
An
abnormality (disease) of the mind refers to a state of mind so different from
that of the ordinary human beings that the reasonable man would term it
abnormal as seen in R v Byrne [8]
thus providing the test for diminished responsibility.
Distinguishing
Between the Defence of Insanity and Diminished Responsibility
As
earlier stated, it can be noted that both the defence of insanity and
diminished responsibility relate to one’s psychological state. However, there
are very distinct contrasts between the two defenses. It is essential to
understand these differences as confusing one for the other could have a terminal
effect on the outcome of a given case.
When
we look at criminal responsibility we look at the capability of a person to
understand their behavior at the time of committing the crime. The two defences
have different effects on one’s criminal responsibility when successfully
raised. When successfully raised the defence of insanity completely exonerates
one from all criminal liability. However, the legal position is that a person
exonerated on the basis of insanity should be detained at the President’s
pleasure until healed of this insanity. This could be seen in the case of Tobo v The People (1991)[9]
where after the defence of insanity was successfully raised, the appellant was
declared not guilty by reason of insanity and ordered to be detained at the
President’s pleasure. When it comes to the defense of diminished responsibility,
on the other hand, it only reduces criminal liability by reducing murder to
manslaughter when successfully raised, as was seen in the case of R v Ahluwalia[10]
where the defense was successfully raised, hence reducing murder to
manslaughter.
Despite
the two offences referring to the psychological state of the accused, it must
be noted that there are different types of diseases of the mind permitted.
Under diminished responsibility, the abnormality must cause the accused to lose
control of their willpower to control their action such as depression. This
could be seen in the case of R v Byrne[11]
where the accused suffered uncontrollable impulses hence the defence was
successful. When it comes to insanity only defects in reason triggered by an
internal factor qualify. Hence, diseases caused by external factors such as
concussions, alcohol, and drugs do not qualify, as was seen in the case of R v Hennessy[12].
A
general defence is defined as one which can be applied to all criminal matters
and exempt one from all criminal liability. The defence of insanity is a
general defense in the sense that it can be applied to any case and if
successfully argued exempt one from all criminal liability. The defense of
diminished responsibility in contrast is a partial defense and only applies to
murder. It therefore cannot lead to a full acquittal but instead only reduce
murder to manslaughter.
One
other notable variance between the two defences is the level of control the
defendants have at the time of committing the crime. In the defence of diminished
responsibility, the courts acknowledge that the actions of the defendant were
voluntary though, still influenced by their mental state. When we look at
insanity on the other hand it suggests a complete lack of control as was
elaborated in the M’Naghten case. It is for this complete lack of control that
all criminal liability is completely erased when successfully raised.
When
it comes to determining insanity, the legal test used is the M’Naghten Rules
which originate from the M’Naghten case. These rules help the court determine
whether the defence of insanity can stand. For the defense of diminished
responsibility, the test used is obtained from the judgment provided in
Galbraith v HM Advocate [13],
which elaborates that there must be an abnormality of the mind and it must not
be brought about by any consumption of drink or alcohol and psychopathic
personality disorder[14].
Defences
are essential to the proper application of justice in law by providing every
individual a fighting chance. Different defences may be raised, however. One
must identify one that is in line with the facts of the case. More than often
the defences of insanity and diminished responsibility are confused with one
another, thus the purpose of this article is to recognise and analyse the
distinctions. It is therefore imperative to pay particular attention to the
facts of the case before concluding the applicable defense.
[1]Bryan
A. Garner, Black’s Law dictionary (8th edition, 2004) 1268.
[2]
Section 12 of the Penal Code Chapter 87 of the laws of Zambia.
[3]
https://languages.oup.com/google-dictionary-en/
[4] R v
M’Naghten [1843] UKHL J16 HL.
[5]
Section 12A of the Penal Code Chapter 87 of the laws of Zambia
[6] R v
Campbell [1987] 84Cr App R 255
[7] Nuwan
Galappathie and Krishma Jethwa, Diminished responsibility and alcohol (2018) 16
Issue 3 Advances in psychiatric treatment 193.
[8] R v. Byrne [1960] 3 ALL ER 1.
[9] Tobo v
People (S.C.Z. Judgement 2 of 1991) [1991] ZMSC 7(5 May 1991)
[10] R
v Ahluwalia (1993) 96 Cr App R 133.
[11] R v. Byrne [1960] 3 ALL ER 1.
[12] R v
Hennessy [1989] 1 WLR 297.
[13]
Glbraith v HM Advocate (2002) JC 1.
[14]
Discussion paper on insanity and diminished responsibility (2003) 122 Scottish
law commission 33.
This Article is Brought to you by:
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(Access to Knowledge)
About the Author:
Pauline Mwakacheya is a Second year law student at the University of Lusaka and serving as a Legal Researcher at Legal Aid Initiative.