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The Jersey Law Review - June 2003

SHORTER ARTICLES AND NOTES

THE INSANITY DEFENCE – RECENT DEVELOPMENTS IN JERSEY AND GUERNSEY

Ronald Mackay

1       The defence of insanity raises fundamental questions about criminal responsibility in the sense of when it is proper to excuse mentally abnormal defendants from criminal liability. Despite its theoretical importance the insanity defence is rarely litigated. It is of particular interest, therefore, that two recent cases dealing with the defence in Jersey and Guernsey respectively, have arrived at completely different conclusions over the appropriate test for insanity within each jurisdiction. This article presents a critical appraisal of these important developments. In doing so, however, the author wishes to emphasise that he is, and has never claimed to be, an expert in Jersey law; a point confirmed by the Bailiff, at the outset of the hearing in Att.Gen. v Prior when he ruled that opinions prepared by myself and Professor Conor Gearty were “not receivable as evidence of the law of Jersey” as neither author is “qualified in the law of this Island”.[1]

The Jersey ruling

2       As a result of the prosecution of Jason Prior for an offence of grave and criminal assault the defence raised the question as to whether, at the time of the alleged offence, the accused, who had a long history of mental illness, was legally insane. This in turn resulted in a preliminary hearing to determine this question. Both Professor Gearty and I were instructed by the defence to give opinions as to two fundamental questions, namely whether the M'Naghten Rules were open to challenge under the Human Rights (Jersey) Law 2000 (“the Human Rights Law”) and, if so, how the defence of insanity could be altered to comply with the European Convention on Human Rights.

3       Article 2(1) of the Criminal Justice (Insane Persons) (Jersey) Law, 1964 provides that -

“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.”

4       Like its English counterpart in the Criminal Procedure (Insanity) Act 1964, (“the 1964 Act”) as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, (“the 1991 Act”) no indication is given as to the legal nature of the defence of insanity. As a result of the fact that Prior’s defence was to be one of “not guilty by reason of insanity” based on volitional impairment resulting from mental illness, counsel for the Crown and the defence requested a ruling on the meaning of the word “insane” in the context of the Jersey statutory provision.  It was common ground that this provision had never before been the subject of judicial interpretation by the Jersey courts. Defence counsel, supported by the opinions of Professor Gearty and myself, argued that, having regard particularly to the enactment of the Human Rights Law[2], the Court should adopt a construction consistent both with the European Convention on Human Rights and with the current state of medical knowledge relating to mental disease and disorder. The Crown Advocate responded by contending that the Court should follow English law and construe the word “insane” in accordance with the M’Naghten Rules.

5       In addressing these issues Professor Gearty and I noted that there has been strong academic support for the contention that the M'Naghten Rules may be in breach of the English Human Rights Act.[3] We argued that the fundamental problem is whether the "disease of the mind" component in the M'Naghten Rules is open to challenge under article 5.1(e) of the Convention which permits persons of unsound mind to be lawfully detained. As is well known, the leading case is Winterwerp v Netherlands,[4] which requires, inter alia, that the mental disorder be of a kind or degree warranting compulsory confinement. In particular, the way in which the English courts have interpreted "disease of the mind" to include conditions such as diabetic hyperglycaemia[5] and epilepsy[6] does seem to run counter to the Winterwerp requirement that there must be objective medical expertise supporting the fact that the accused is of unsound mind. In this connection it is of particular importance to note that the objective medical evidence that is required, relates not to whether the accused suffered from hyperglycaemia or epilepsy, but to the fact of mental disorder. A lack of such objective medical expertise supporting the fact that the accused is suffering from a true mental disorder in these diabetes and epilepsy cases seems to present an insuperable problem from a Convention perspective.  Further, in the recent decision of the European Court of Human Rights in Varbanov v Bulgaria,[7] it was stated in a case dealing with the lawfulness of detention under article 5(1)(e), that "the medical assessment must be based on the actual state of mental health of the person concerned and not solely on past events.  A medical opinion cannot be seen as sufficient to justify deprivation of liberty if a significant period of time has elapsed". This additional requirement presents a further problem in so far as the defence of insanity relates to the accused's state of mind at the time of the commission of the offence.

6       As far as English law is concerned there is nothing in the relevant statutory provisions under the 1964 and 1991 Acts to prevent the detention in hospital of a defendant based solely on the fact that he was a legally insane at the time of the commission of the offence rather than on his present mental state.  It appears that the same is true of the law in Jersey.  The fact that English law has introduced flexibility of disposal under the 1991 Act fails to answer this point for two reasons. First, the 1991 Act retains compulsory detention in cases where the sentence is fixed by law, which means a court has no option but to hospitalise the defendant even in cases where this may not be appropriate. Secondly, in those cases where a court is able to choose how to dispose of a defendant found not guilty by reason of insanity, although in exercising a choice between guardianship, a supervision and treatment order or absolute discharge the court must decide which one “is most suitable in all the circumstances of the case”,[8] the same requirement does not apply to the making of an admission order to hospital.  This means that there is nothing in the statute to prevent a court making such an admission order although by the time of the trial the accused is mentally well and does not require in-patient treatment. This point was described by the Court of Appeal in R v Grant[9] as a question “of some difficulty” as “no-one is required specifically to address, prior to the person’s detention, the question whether he suffers from a mental disorder sufficiently serious to warrant detention.”

7       In the light of the above it was argued that it would be unwise to adopt the M’Naghten Rules as a test for insanity within the law of Jersey, a point which was conceded by the Crown. Accordingly, it was common ground between counsel that the M’Naghten Rules are incompatible with Convention rights. However, there was no consensus as to the appropriate test for insanity in the law of Jersey. The Crown Advocate submitted that Jersey should adopt the M’Naghten Rules but conceded that they would require adaptation to conform with the Convention. The suggested adaptation, in the light of Winterwerp, was to alter the phrase a “defect of reason, from disease of the mind” so as to read “mental illness amounting to unsoundness of mind according to objective medical evidence.”

8       In response, and in the light of our submissions, defence counsel, argued that such a solution was clearly inadequate. She pointed out that since their inception the M'Naghten Rules had been the subject of considerable criticism; psychiatrists in particular had criticised their focus on cognition at the expense of conation. In this connection, although there are many alternatives that could be offered, a prime consideration must be that any test which may be adopted must comply with the Convention.

9       In his judgment the Bailiff, ruled that the M’Naghten Rules, no reference to which could be found in the records of the Court, did not form part of the law of Jersey. Relevant sources,[10] in his view, supported two propositions -

“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.”[11]

10     In addition, the Bailiff made it clear that -

“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.  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.”

11     Accordingly, he ruled as follows -

“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.

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 Article 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.

This test will permit objective medical evidence of a defendant’s unsoundness 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.”[12]

The Guernsey case

12     Shortly after ruling in Prior an identical issue arose in Guernsey in the case of Derek Lee Harvey who had been charged with murdering his estranged wife and child. In much the same way a preliminary point arose concerning what directions should be given as to the appropriate test for the defence of insanity such that a special verdict should be recorded under the Criminal Justice (Special Verdicts) (Guernsey) Law, 1961. In the course of his submissions, defence counsel invited the Guernsey Bailiff to apply the “same test as has recently been promulgated by my brother Bailiff in Jersey in the case of AG v Jason Prior.”[13]  In refusing to accede to this request the Guernsey Bailiff pointed out that, unlike the position in Jersey where no case could be found where the M’Naghten Rules had been applied, they had been applied on three occasions with approval in the Royal Court of Guernsey. However, in refusing to apply the Rules as an appropriate test for insanity in Jersey it will be recalled that the Jersey court had opined that they did not comply with the European Convention. In dealing with this important issue the Guernsey Bailiff stated that “on reflection I cannot find that the M’Naghten Rules are in themselves incompatible with the Convention.”[14]  In his view those dealing with this problem in Jersey had fallen into error by “confusing with the issue of detention, the circumstances of making a finding of insanity about which there seems to be little European learning.”[15] 

13     While it is true that the European cases have in the main been concerned with detention issues, the Guernsey court’s conclusion that all such problems would remain whether or not the M’Naghten Rules were adopted is certainly open to question. In his submissions defence counsel argued that the test resulting in an insanity defence is inextricably linked to the disposal consequences in view of the fact that in Guernsey, in the same way as Jersey, legislation mandates that such a finding requires detention during Her Majesty’s pleasure. In rejecting this line of argument the Guernsey court relied on the Crown Advocate’s submission that although this disposal might need to be examined in terms of human rights, there was nothing to suggest the same could be said of the test for insanity. But in accepting this line of argument, the Guernsey court has perpetuated a test which permits those who are not of unsound mind in any psychiatrically recognised sense to be subjected to what is, essentially, a mental health disposal. To argue that such persons, be they diabetic or epileptic for example, can be released from detention speedily fails to answer the fundamental point that any such detention within a mental health framework surely breaches Article 5.1.(e) of the Convention in this type of case. Indeed it is this very form of argument which was accepted in Jersey, leading the court to reject the M’Naghten Rules in favour a new test. 

14     At issue here is a fundamental division of opinion as between Jersey and Guernsey. Can the disposal consequences be unshackled from the insanity defence in the manner suggested by the court in Harvey? It is submitted that they cannot. If the defence gave rise to a verdict which was followed by a separate and independent disposal hearing under which the judge had unfettered discretion, then such an argument might be tenable. But that is not the case. Rather, the insanity defence results in a special verdict of “not guilty by reason of insanity” which is quite unlike an ordinary unqualified acquittal. As such it is tied to a mental health disposal regime. To argue that the law should continue to permit those who are clearly not of unsound mind to qualify for such a disposal as a direct result of falling within such a defence is surely unacceptable. To remedy this problem either a new test is required or the M’Naghten Rules need to be changed to make them Convention compliant. But neither of these solutions appealed to the Guernsey court. Instead, the Guernsey court did something which many might regard as even more radical.  It decided that the common law of Guernsey should adopt the plea of diminished responsibility. Until that time the law of that island, unlike Jersey which has implemented it by statute,[16]  had no such plea. While this is not a place for a critique of diminished responsibility, to incorporate the plea as developed in England into one’s common law seems a bold step.  As a doctrine it is deeply flawed and beset with problems,[17] a point which was not apparently considered by the Guernsey court.

15     Regrettably no appeal was pursued in Harvey but this is not an end to the matter as the Jersey Court of Appeal chose to make some obiter remarks about it when considering Prior’s appeal against sentence.

Prior’s appeal

16     As a result of the Jersey Bailiff’s ruling discussed above, Prior was advised by his counsel that the defence of insanity, as newly defined in Jersey law, was open to him. Despite this, Prior decided to change his plea to one of guilty and was subsequently sentenced to ten years' imprisonment. At the sentencing hearing before the Royal Court it was concluded that although “it is clear that this defendant does suffer from psychosis and was in a psychotic state at the time of the incident”[18] this was not to be regarded as a mitigating factor. In the light of this comment and the length of the sentence Prior lodged an appeal. Although the appeal was essentially sentence related, as there were continued concerns about Prior’s current mental state, the defence wished consideration also to be given to the question of unfitness to plead with particular regard to their client’s mental fitness to plead guilty. This in turn, it was submitted, raised the question of an appropriate test for unfitness to plead in the context of Convention compliance, which is discussed elsewhere.[19]

17     With regard to the defence of insanity, however, the Jersey Court of Appeal chose to comment adversely on the Bailiff’s ruling, Vaughan JA stating -

“Although such a ruling was contrary to the submissions made by the Crown, it was decided, after consultation with the Attorney General and the Solicitor General (who appeared for the Crown before us), that there should be no appeal from that ruling.  Accordingly we must proceed on the basis that it is correct. However for our part, we consider that at some more appropriate time the correctness of that ruling may have to be re-visited, not least because, in our opinion, the argument that the McNaghten Rules are incompatible with the European Convention on Human Rights does not seem to us to be correctly based, and even more so because the Bailiff of Guernsey has subsequently, having considered the Bailiff’s ruling in this case, reached exactly the opposite conclusion in relation to both historic practice in Guernsey and the Human Rights Convention in the Law Officers of the Crown v Harvey judgement. It would seem to us to be highly undesirable that the effect of “insanity” should be different in the two jurisdictions.  In any event we should add that it is our understanding that the whole law of insanity and diminished responsibility is under consideration in jurisdictions in the United Kingdom and it would seem highly desirable that any reform of the law should result from legislation and involve a co-ordinated law applicable in all jurisdictions in the United Kingdom and in the jurisdictions of Jersey and Guernsey.”[20]

18     Despite these remarks the Jersey Court of Appeal noted that “even applying the Bailiff’s test, there is no support whatsoever for a contention that the appellant satisfied the amended test for insanity at the time of the offence.  By a letter dated May 30th, 2001 he decided to change his plea to one of guilty.”[21]  In upholding the sentence the Jersey Court of Appeal concluded that 10 years was not manifestly excessive and that the appellant’s psychotic state was not a mitigating factor as it had been aggravated by his consumption of drink and drugs.

Conclusion

19     The conflict of opinion between Jerseyand Guernsey described above raises fundamental questions about the nature and scope of the defence of insanity. While the Royal Court in Jersey has rejected the McNaghten Rules in favour of a new and wider test, the Royal Court in Guernsey has decided that the Rules form part of the law of Guernsey and are Convention compliant. In adding to this dispute the Jersey Court of Appeal has cast doubt upon the Jersey Bailiff’s ruling. But in doing so no reasons were given as to why the argument that the McNaghten Rules are not Convention compliant might be wrong, other than a passing reference to the law of Guernsey. In addition, the Court’s point about the insanity defence being different in two jurisdictions is itself misplaced, for although it is true that the defence has been referred  to  the  Scottish  Law  Commission[22]  and  is  under reconsideration by the English Law Commission within the context of the Criminal Code, there is no suggestion that any new insanity defence will be the same for both jurisdictions. In which case, why should it be the same for the separate jurisdictions in the Channel Islands? The answer to this question seems obvious and is surely given correctly in the following recent comment on the Jersey Court of Appeal’s decision -

“While a decision of the Court of Appeal on the correctness or otherwise of the Royal Court’s ruling in Prior is obviously to be welcomed, it is earnestly to be hoped that it will not be based either upon historic practice in Guernsey or upon statutory intervention in the United Kingdom, neither of which seems relevant to what is the law of Jersey.”[23]

20     It seems safe to conclude then that we have not yet heard the last of a complex and difficult issue, which although rarely encountered in practice, has now divided the Royal Courts of Jersey and Guernsey.

Ronald  Mackay is a Professor of Criminal Policy and Mental Health, at De Montfort Law School, De Montfort University, Leicester

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