“If on the trial before the Royal Court of any person charged with any act or omission punishable with death or imprisonment, the jury is satisfied that the accused did the act or made the omission charged against him but that he was insane at the time when the act was done or omission made so as not to be responsible according to law for his actions, the jury shall return a special verdict to the effect that he did the act or made the omission charged but is not guilty on the ground that he was insane so as not to be responsible according to law at the time.”

3  Counsel for the Crown and for the defendant have requested a ruling on the meaning of the word “insane” in the context of that statutory provision. It is common ground that this provision has never before been the subject of judicial interpretation by this court. Miss Fogarty, for the defendant, contends that I ought, having regard particularly to the enactment of the Human Rights (Jersey) Law 2000 (“the 2000 Law”), to adopt a construction which is both consistent with the European Convention on Human Rights (“the Convention”) and consonant with the current state of medical knowledge relating to mental disease and disorder. Mr. Le Cornu, for the Attorney General, contends that I ought to follow the law of England and to construe the word “insane” in accordance with the McNaghten Rules, adapted as necessary to comply with the Convention. I interpose that it is also common ground between counsel that the McNaghten Rules are not on their face compatible with Convention rights, and that the 2000 Law, which incor­porates the Convention into the domestic law of Jersey, is not yet in force.

4  The McNaghten Rules were formulated by the English judges at the request of the House of Lords in 1843, in M’Naghten’s Case (2), following an uproar when Daniel McNaghten was acquitted, on the ground of insanity, of murdering the private secretary of the Prime Minister, Sir Robert Peel. The answers to questions 2 and 3, set out below, contain the “insanity test” which has been in force in England and throughout much of the Commonwealth for over 150 years. The questions were (10 Cl. & Fin. at 203; 8 E.R. at 720):

    “2d. What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusion respecting

    3d. In what terms ought the question to be left to the jury, as to the prisoner’s state of mind at the time when the act was committed?”

    The answers given to these questions were as follows (ibid., at 210; at 722):

“…[T]hat the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, 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.”

5  Miss Fogarty submitted that the McNaghten Rules were outmoded and no longer appropriate, if they ever were, for determining the issue of a person’s sanity. It is true that insanity giving rise to a defence under English law is not the same thing as insanity as defined by medical experts. The learned editors of Archbold express that point succinctly in Archbold, Criminal Pleading, Evidence & Practice, para. 17–74, at 1607 (2001 ed.):

    “As the defence of insanity is based on the absence of mens rea, the mental condition recognised by the law as insanity for this purpose is not the same as insanity, or mental illness as recognised by medical science.”

6  Until recently, most critics of the McNaghten Rules were seeking to secure an amendment of the English doctrine of mens rea, so that the purely cognitive test in the Rules might be supplemented by a volitional one, admitting that a man might, while knowing that he was breaking the law, be unable to prevent himself from doing so.

    “This dispute raged through the nineteenth century and was certainly marked by some curious features. In James Fitzjames Stephen’s great History of the Criminal Law the dispute is vividly presented as one between doctors and lawyers. The doctors are pictured as accusing the lawyers of claiming to decide a medical or scientific issue about responsibility by out-of-date criteria when

8  In her submissions on the effect of the Convention, which are considered below, counsel for the defendant set some store by the failure of the law to pay sufficient regard to the views of medical experts. Counsel also drew attention to the criticisms of the McNaghten Rules in the reports of various Commissions and bodies which have considered these questions in the United Kingdom.

    “1. It should be recognised that a person charged criminally with an offence is irresponsible for his act when the act is committed under an impulse which the prisoner was by mental disease in substance deprived of any power to resist. It may require legislation to bring this rule into effect.

    2. Save as below, the rules in McNaghten’s case should be maintained.”

10  On July 21st, 1950, the Royal Commission on Capital Punishment heard strong views from a distinguished American jurist, Mr. Justice Frankfurter, in these terms (Minutes of Evidence of the Royal Commission on Capital Punishment, paras. 8065–8068, at 587 (1950)):

“…[T]he M’Naghten Rules were rules which the Judges, in response to questions by the House of Lords, formulated in the light of the then existing psychological knowledge … I do not see why the rules of law should be arrested at the state of psychological knowledge of the time when they were formulated.

…[I]f you find rules that are, broadly speaking, discredited by those who have to administer them, which is, I think, the real situation, certainly with us—they are honoured in the breach and not in the observance—then I think the law serves its best interests by trying to be more honest about it.

… I think that to have rules which cannot rationally be justified except by a process of interpretation which distorts and often practically nullifies them, and to say the corrective process comes by having the Governor of a State charged with the responsibility of deciding when the consequences of the rule should not be enforced, is not a desirable system.

… I am a great believer in being as candid as possible about my institutions. They are in large measure abandoned in practice, and therefore I think the M’Naghten Rules are in large measure shams. That is a strong word, but I think the M’Naghten Rules are very difficult for conscientious people and not difficult enough for people who say ‘We’ll just juggle them’ … I dare to believe that we ought not to rest content with the difficulty of finding an improvement in the M’Naghten Rules.”

11  The Royal Commission concluded that the test of criminal responsibility contained in the McNaghten Rules could not be defended in the light of modern medical knowledge and modern penal views. The Commission, by a majority, recommended the abrogation of the Rules so as “to leave the jury to determine whether at the time of the act the accused was suffering from disease of the mind (or mental deficiency) to such a degree that he ought not to be held responsible” (Report of the Royal Commission on Capital Punishment, para. 333, at 116 (1953)).

12  In 1975, the Butler Committee on Mentally Abnormal Offenders concluded (Report, Summary of Conclusions, para. 1, at 237) that—

    “Provision should continue to be made for exemption from criminal responsibility for mentally disordered offenders but the M’Naghten Rules are not a satisfactory test…”

13  In 1989, the English Law Commission published Report No. 177, A Criminal Code for England & Wales, which included a draft Criminal Code. The Law Commission endorsed the view of the Butler Committee that there was a need “to replace the outdated ‘insanity’ defence” and made detailed proposals which it is unnecessary to recite.

14  Despite these manifold criticisms of the McNaghten Rules, Parliament in the United Kingdom has repeatedly declined to repeal or to reform them. It is true, however, that some of the rigours of the Rules have been mitigated by statute. In relation to the crime of murder, the Homicide Act 1957 introduced a defence of diminished responsibility which has, inter alia, allowed an accused who can prove that he was acting under some uncontrollable impulse to secure a conviction for manslaughter instead. More recently, the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (“the 1991 Act”) has conferred a discretion on the English courts as to disposal after an insanity defence has been successfully pleaded. Until 1991, an insanity verdict could be followed only by an order for detention, usually in a mental hospital, without limit of time. Now it is open to the court to impose less grave protective measures.

15  The reluctance of the UK Parliament to reform the McNaghten Rules has been reflected in decisions of the English courts. Counsel for

    “The approach of the English courts towards this question is best summed up by referring to two well-known House of Lords’ decisions, both of which concern epileptic offenders. First, in Bratty v. Attorney General for Northern Ireland, Lord Denning made the following influential remark:

    ‘The major mental diseases which doctors call psychoses, such as schizophrenia, are clearly diseases of the mind. But in Charlson, Barry J. seems to have assumed that other diseases such as epilepsy or cerebral tumour are not diseases of the mind, even when they are such as to manifest themselves in violence. I do not agree with this. It seems to me that any mental disorder that manifests itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.’

Second, in R. v. Sullivan, Lord Diplock speaking for a unanimous House of Lords said:

    ‘The nomenclature adopted by the medical profession may change from time to time; Bratty was tried in 1961. But the meaning of the expression “disease of the mind” as the cause of a “a defect of reason” remains unchanged for the purposes of the application of the M’Naghten Rules. I agree with what Devlin J. said in R. v. Kemp that “mind” in the M’Naghten Rules is used in the ordinary sense of mental faculties of reason, memory and understanding. If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the Rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of the commission of the act. The purpose of the legislation relating to the defence of insanity … has been to protect society against recurrence of the dangerous conduct. The duration of a temporary suspension of mental faculties of reason, memory and understanding, particularly if, as in the appellant’s case, it is recurrent, cannot on any rational ground be relevant to the application by the courts of the M’Naghten Rules … it is natural to feel reluctant to attach the label of

It is obvious from these dicta that the manner in which the judiciary have interpreted ‘disease of the mind’ is largely governed by policy considerations, and has little or nothing to do with the practice of psychiatry.”

16  Miss Fogarty submitted that the McNaghten Rules were not part of the law of Jersey and should not be imported to fill the vacuum caused by the absence of any local jurisprudence on the definition of “insanity.” She contended that it was open to me to adopt a definition which was consistent with the Convention and which was not locked into the state of medical knowledge obtaining 150 years ago.

17  Mr. Le Cornu, for the Attorney General, submitted that I should follow English law and adopt the McNaghten Rules. He conceded that they would require adaptation to conform with the 2000 Law when it came into force. He contended, however, that the Rules could easily be adapted to that end by interpreting the phrase a “defect of reason, from disease of the mind” so as to mean “mental illness amounting to un­soundness of mind according to objective medical evidence.”

18  It is convenient here to examine the impact of the European Convention on Human Rights. The Convention applies to Jersey and the States have enacted the 2000 Law which has been sanctioned by the Privy Council and registered in this court. The 2000 Law would incorporate the Convention into domestic law so as to oblige the court to have regard to Convention jurisprudence. The 2000 Law is, however, not yet in force.

    “(1) Everyone has the right to liberty and security of person.

    No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law—

…

(e)    The lawful detention … of persons of unsound mind…”

The leading case before the European Court of Human Rights is Winterwerp v. The Netherlands (3). The applicant, who had been compulsorily detained under the relevant Netherlands legislation dealing with mentally ill persons, complained that his right to liberty under art. 5 (inter alia) had been violated. The court stated (2 E.H.R.R., para. 37, at 401):

    “The Convention does not state what is to be understood by the words ‘persons of unsound mind’. This term is not one that can be given a definitive interpretation: as was pointed out by the Commis­sion, the Government and the applicant, it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society’s attitudes to mental illness change, in particular so that a greater understanding of the problems of mental patients is becoming more widespread.”

    “The Commission likewise stresses that there must be no element of arbitrariness; the conclusion it draws is that no one may be confined as ‘a person of unsound mind’ in the absence of medical evidence establishing that his mental state is such as to justify his compulsory hospitalisation (see para. 76 of the report). The appli­cant and the Government both express similar opinions.

    The Court fully agrees with this line of reasoning. In the Court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority—that is, a true mental dis­order—calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory con­finement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.”

21  The right to liberty under art. 5 of the Convention was also considered by the European Court of Human Rights in Luberti v. Italy (1). In 1972, Luberti was convicted by the Rome Assize Court of the murder of his mistress and sentenced to 21 years’ imprisonment. On appeal, he contended that he was insane at the time of the commission of the act. In 1979, having heard expert evidence, the appeal court acquitted Luberti on the ground of mental incapacity and directed that he be confined for two years in a psychiatric hospital pursuant to art. 222 of the Italian Criminal Code. He was then transferred from prison to a psychiatric hospital. He subsequently made a number of applications for release, contending that his confinement was not justified by his state of health. In 1981, the Naples Supervision Division directed that his

    “The Court would recall that in deciding whether an individual should be detained as a ‘person of unsound mind,’ the national authorities are to be recognised as having a certain margin of appreciation since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities … [see the Winterwerp judgment of October 24th, 1979 (2 E.H.R.R., para. 40, at 403)]. An individual cannot be considered to be ‘of unsound mind’ for the purposes of Article 5(1) and deprived of his liberty unless the following three minimum conditions are satisfied: he must be reliably shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.”

22  Counsel for the defendant contends that the McNaghten Rules do not comply with the requirement laid down in Winterwerp (3) and endorsed in Luberti (1) that mental disorder must be established by “objective medical expertise.” It is true that this Convention jurisprudence is looking at the matter from the perspective of the lawfulness of detaining a person of unsound mind rather than from the perspective of exculpation from criminal liability by reason of insanity. But these are simply different ends of the same spectrum. If a person is excused from responsibility for a criminal act by his insanity, he is liable to be detained during Her Majesty’s Pleasure. That detention will be unlawful unless it complies with the requirement of the Convention.

23  Both counsel agreed that the McNaghten Rules did not comply with the Convention but it seems to me that I should refer none the less to some of the weighty academic opinion in support of that view.

24  In Sutherland & Gearty, Insanity & the European Court of Human Rights, [1992] Criminal Law Review 418, the authors, having examined the requirements of art. 5 of the Convention, write (loc. cit., at 423–424):

    “Even allowing for a circumspect European jurisdiction in this area, the mandatory committal of acquitted persons who are found insane under the M’Naghten Rules is surely open to doubt. The key factor in the British approach—and what distinguishes it from Luberti—is that the legal definition of insanity differs so radically from the psychiatric and medical versions. The ‘objective medical expertise’ repeatedly stressed by the European Court is never

    While it remains open for the prosecution to force the defence of insanity upon defendants falling within the outmoded M’Naghten Rules, eventually one of our sleep-walking, epileptic or diabetic ‘insane’ charged with murder will find him- or herself facing manda­tory commitment, notwithstanding the 1991 Act. If so, the chance of an application to Strasbourg would present itself. An adverse judgment by the European Court may eventually be the final straw that compels the Government to rid itself and us of the M’Naghten Rules.”

    “Two major issues concerning defences of mental disorder emerge from the above discussion: the question of definition, and the question of protective measures. In the past they have been closely connected, so that the definition has often been expanded to include persons against whom compulsory measures are thought to be necessary. The 1991 Act alters the balance somewhat, since commitment to a mental hospital is now only a possible and not an inevitable consequence of a special verdict of not guilty by reason of insanity. But the label ‘insane’ remains, and it is manifestly unsuitable for those whose behaviour stemmed from epilepsy, somnambulism, or diabetes. Not only does this confirm that the definition of insanity is too wide in some respects and too narrow in others, but it also suggests that the English rules and procedure are so at odds with ‘objective medical expertise’ as to infringe Article 5 of the European Convention on Human Rights.”

26  What then is the meaning of “insanity” in art. 2(1) of the Criminal Justice (Insane Persons) (Jersey) Law 1964? As I have said, the point has not been decided before. It is true that the 1964 Law is in almost identical terms to provisions of the Criminal Procedure (Insanity) Act 1964 of the United Kingdom and that many practitioners in Jersey may have assumed that the McNaghten Rules therefore formed part of the law of Jersey. But such assumptions are sometimes misplaced. It is significant, in my judgment, that notwithstanding the assiduous researches of counsel, no reference to the McNaghten Rules has been found in the records of the court.

27  Counsel for the Attorney General drew my attention to answers given in 1846 in the First Report of the Commissioners appointed to inquire into the state of the Criminal Law in the Channel Islands: Jersey (1847) (three years after the formulation of the McNaghten Rules) to the question: “What is considered to be the test of … unsoundness of mind as to prevent a party from being responsible to the criminal law?” The Bailiff, Sir John de Veulle, and the Jurats answered succinctly (Answers to Questions, para. 2, at 82): “Incapacity to distinguish right from wrong.” More interesting are the statements of two advocates who were later to be appointed Bailiff. Advocate Jean Hammond (Bailiff between 1858 and 1880) stated (Answers to Questions, para. 2, at 84):

“As regards the test of unsoundness of mind that would be received by the Court, I conceive that the general principles of law would be the guide. The usual definition or distinction of knowledge between right and wrong would be probably the basis of such an investigation: but I think another definition of aberration, namely, whether the individual charged had at the time of committing the imputed act any power of control over his actions, and also the difficult but important question of the derangement of the moral faculties of the individual, would likewise be taken into consideration. Such a question would, of course, be mainly regulated by the facts of the case, which are too numerous and multiform to be minutely enumerated.”

28  Advocate R.P. Marett (later to become Sir Robert Marett and Bailiff between 1880 and 1884) was probably the most distinguished lawyer of his generation. He stated (Answers to Questions, para. 2, at 88):

“With regard to the test alluded to in the latter part of this question, the law of Jersey does not recognize any such; nor do I see how it is possible to establish a standard by which to estimate the degree of general intelligence requisite to render a party responsible to the criminal law, when it is considered how subject the human mind is to be partially disordered. A person almost idiotic may still possess a power of distinguishing right from wrong, sufficient to make him amenable to the laws, while a man of the most unclouded reason and soundest judgment in ordinary occasions may be subject to periodical aberrations of intellect, or paroxysms of monomaniacal hallucination, which so far destroy for the time his moral perception as to justify his exemption from punishment for any crime committed under their influence. It is evident, therefore, that the criminality of every act must entirely depend upon the peculiar circumstances under which it took place, without reference to the measure of reason possessed by the agent at other times: and, as these vary in each individual case, they can only be left to the appreciation of the Court or the jury.”

29  These statements of opinion are noteworthy for two reasons. First, in contrast to the McNaghten Rules, they both appear to acknowledge a volitional as well as a cognitive test to establish unsoundness of mind. In other words, the “irresistible impulse” defence, against which English law has resolutely set its face ever since the McNaghten Rules were laid down, seems to have been part of the law of Jersey at that time. Secondly, although they do not refer specifically to medical opinion, they both underline the multiplicity of circumstances which destroy moral percep­tion and which might lead to exemption from punishment for a crime committed under their influence.

30  Having considered carefully all the material before me and the helpful submissions of both counsel, I have reached the following conclusions:

    (a) The McNaghten Rules do not form part of the law of Jersey and do not therefore at first blush provide the answer to the question of the meaning of “insanity” in the Criminal Justice (Insane Persons) (Jersey) Law 1964.

    (b) It is not necessary for me to decide whether the McNaghten Rules are in compliance with the requirements of the European Convention on Human Rights. It is, however, strongly arguable that their adoption in this jurisdiction, particularly in the absence of legislation equivalent to the 1991 Act, would involve a breach of art. 5 of the Convention.

    (c) The adoption of the McNaghten Rules would also conflict with such evidence as there is as to the meaning of insanity in Jersey law in that the Rules do not admit of a volitional test.

    (d) The adaptation of the McNaghten Rules suggested by counsel for the Attorney General by interpreting a “defect of reason, from disease of the mind” to mean “mental illness amounting to unsoundness of mind according to objective medical evidence” would conflict with (c) above but is unattractive for another reason. To adopt the McNaghten Rules, notwithstanding all the criticisms of them from so many informed sources, but to adapt them so as to exclude much of the English case-law on their interpretation seems to me to involve having the worst of both worlds. Not only would I import English rules formulated in a bygone age which are inconsistent with the evidence given to the Royal Commissioners as to Jersey law, but I would also deprive the Jersey courts of the assistance of English precedents which have created a pragmatic, if not entirely satisfactory, body of law.

    (e) I should therefore adopt a definition of “insanity” which is consistent with the evidence given to the Royal Commissioners in 1846, compliant with Convention rights under the Human Rights (Jersey) Law 2000, and appropriate to the state of medical knowledge in the 21st century.

31  Counsel for the defence laid out a number of options for me in the course of her submissions. I prefer, and I respectfully adopt, a definition suggested by Professor R.D. Mackay. I therefore hold that a person is insane within the meaning of art. 2 of the Criminal Justice (Insane Persons) (Jersey) Law 1964 if, at the time of the commission of the offence, his unsoundness of mind affected his criminal behaviour to such a substantial degree that the jury consider that he ought not to be found criminally responsible.

32  This test will permit objective medical evidence of a defendant’s unsoundess of mind to be given in the sense required by Convention jurisprudence while retaining a clear causal link between the offence and the mental disorder. It will also cater for defects of volition. I do not believe that the heavens will fall in as a result of this ruling. Juries in murder trials have had the responsibility of deciding whether volitional impairment can fall within the plea of diminished responsibility ever since the enactment of the Homicide (Jersey) Law 1987. The presumption of sanity remains, and it is for the defendant to prove the requisite degree of unsoundness of mind to justify the return of a special verdict. I propose therefore to direct the jury, or the Jurats as the case may be, accordingly.