Jersey & Guernsey Law Review – October 2009

On being insane in Jersey: again

“The meaning of responsibility is liability to punishment.”^[1]

Introduction

1  In the cases of Att Gen v O’Driscoll^[2] and Att General v Prior^[3] the Bailiff, Sir Philip Bailhache, set out the legal tests to be applied in Jersey in determining “fitness to plead”, and in considering the defence of “insanity”, respectively.

2  The tests were founded upon a background of considerable research into the customary law of Jersey as it existed before the coming into force of the Criminal Justice (Insane Persons) (Jersey) Law, 1964 (“the 1964 Law”), as well as current legal and academic expert opinion on the subject. A particular concern was that the tests adopted should be compliant with the European Convention on Human Rights.

3   In Prior the Bailiff drew attention to the opinions of two previous Bailiffs, Jean Hammond and Sir Robert Marett, and observed—

“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.”^[4]

4  In determining the meaning of “fitness to plead”, and “insanity” at the time of the act committed, the Bailiff built on this feature of our legal history  and set tests to be applied under the 1964 Law which are compliant with rights under the European Convention. The features which distinguish the Jersey tests from those applied in English law are that they are not restricted to the major mental illnesses and specifically require the examination of any relevant volitional aspects of the clinically recognized condition suffered by the defendant.

5  The tests have not featured to any appreciable extent in criminal practice thus far. There is something distinctly odd about the fact that the 1964 Law has been in force for 45 years but that there has been little judicial consideration of its provisions. It is also strange that the Bailiff’s tests as set out in Prior and O’Driscoll have been in existence since 2001 and 2003 respectively, but have remained largely unutilized. However, in England, where the tests for unfitness and insanity might be viewed as distinctly questionable on Convention grounds, there exists a plethora of case law to which the criminal practitioner may refer. In Jersey, any mental health related criminal case appears to have sunk with little or no trace at the point where a psychiatric report has been obtained. This article examines some of the reasons why this might be the case.

6  Psychiatrists receive training in connection with the legal aspects of psychiatry largely in the law of England and Wales, and lawyers in Jersey, by and large, are reliant on the psychiatric opinion of those so trained. The potential for misunderstanding and misapplication of the law as it stands in Jersey is evident in this situation where lawyers and psychiatrists have little or no common ground.

7  This article is addressed to both lawyers and psychiatrists to help in the practical application of the Bailiff’s tests where the mental health of a defendant is germane to a criminal case.

8  There are three stages at which scrutiny of an accused person’s mental condition is or may be relevant: firstly, at Police Headquarters when the arrested person is due to be interviewed in connection with an alleged offence; secondly, when the accused person is required to plead to the accusation after charge; and thirdly, when defending the case after the entry of a not guilty plea.

9  Fitness to plead and insanity as a defence can only be litigated before the Royal Court.

The law

10  The relevant provisions of the 1964 Law relating to “insanity” and “fitness to plead” read—

“1. Persons found insane on accusation or trial

         (1) If on the accusation or trial before the Royal Court of any person charged with any act or omission punishable with death or imprisonment, it appears to the court that the accused may be so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial, the court shall adjourn the case to enable the Superior Number of the Royal Court to try the question whether or not the accused is so insane as aforesaid.

         (2) Such trial shall be held by the Superior Number of the Royal Court as soon as may be at such time and place as the court may direct and may be held in the absence of the accused if it is proved to the satisfaction of the court by evidence (including the oral evidence of 2 medical practitioners who in the opinion of the court have had special experience in the diagnosis or treatment of mental disorders) that it is impracticable or inappropriate to bring the accused before the court.

         (3) If the Superior Number of the Royal Court finds the accused to be so insane as aforesaid, it shall be lawful for the original court to order the accused to be detained during Her Majesty’s pleasure; and until Her Majesty’s pleasure is known, the accused shall be detained in such place and in such manner as the court shall order and any such order may be varied from time to time as the court thinks fit.

2. Accused persons found insane at time of commission of offence

         (1) 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 or her but that the accused was insane at the time when the act was done or omission made so as not to be responsible according to law for his or her actions, the jury shall return a special verdict to the effect that the accused did the act or made the omission charged but is not guilty on the ground that he or she was insane so as not to be responsible according to law at the time.

         (2) Where such special verdict is found, it shall be lawful for the court to order the accused to be detained during Her Majesty’s pleasure; and until Her Majesty’s pleasure is known, the accused shall be detained in such place or in the custody of such person and in such manner as the court shall order and any such order may be varied from time to time as the court thinks fit.

         (3) References in this Article to the jury shall, in relation to a trial conducted without a jury, be construed as references to the court.”

11  The 1964 Law is lifted directly from English legislation, but no legal tests are set out therein. A procedural difference is that the Superior Number tries the matter of fitness to plead, whereas in Englandand Wales it is now tried by judge alone without a jury.^[5] The tests applied in Englandand Wales, as set out in Pritchard,^[6] and McNaghten,^[7] are not part of the law of Jersey. The English tests focus entirely on cognition, and although in practice they are applied predominantly to the major mental illnesses, they are also applied, surprisingly, to some physical illnesses which may have an effect upon a defendant’s mental state, such as epilepsy, cerebral tumours and even diabetes. The Jersey tests are not restricted to the major mental illnesses, do not apply to physically induced mental conditions and, as the Bailiff observed in Prior, also cater for defects of volition.

12 What follows examines, first, the question of fitness to plead. Usually the Jersey advocate’s first contact with a defendant is at the point when he enters the criminal justice system. Occasionally, an advocate who attends Police Headquarters in person may be involved at an earlier stage. This is a subject that warrants a separate article in itself. Examination of the question of fitness to plead is a useful introduction to those factors which  the psychiatrist should be asked to consider when examining a defendant for the purpose of offering an opinion concerning a potential defence of insanity at law.

Fitness to plead

13  The defence lawyer, the prosecution or the court may request an assessment of the defendant’s fitness to plead.

14  In the event that it is known, or is suspected, that the defendant suffers from a clinically recognized mental condition, and the defence advocate has difficulty in giving advice or getting sensible instructions, consideration should be given to obtaining a psychiatric assessment. In practical terms, this means that the giving of advice and the taking of instructions should be suspended, pleas should be reserved, and the court asked to order a report. Such an order should be accompanied by an explanation of the reason for the request. Any request for a report should ask the psychiatrist to look at not only fitness to plead, but also at the defendant’s state of mind at the time of the alleged criminal act. Further, the lawyer should request the psychiatrist to append the ICD-10 (International Classification of Diseases, 10th Revision, version for 2007) or DSM-IV (Diagnostic and Statistical Manual of Mental Disorder IV Text Revision) account of the diagnostic features of the defendant’s condition to the report for the Jurats’ benefit. The Jurats, unlike the properly equipped defence advocate, are unlikely to have ready access to either of these publications. Although only the Royal Court may decide matters of mental condition, there is no reason why the Magistrate cannot order reports. In the event that the reports reveal a mental condition issue to be decided, then even if the case would otherwise be within the jurisdiction of the lower court, it must be committed up to the Royal Court for trial.^[8]

15  In Att Gen v O’Driscoll the Bailiff decided the following test for “fitness to plead”—

“an accused person is so insane as to be unfit to plead to the accusation, or unable to understand the nature of the trial if, as a result of unsoundness of mind or inability to communicate, he or she lacks the capacity to participate effectively in the proceedings.

   In determining this issue, the Superior Number shall have regard to the ability of the accused:—

(a)     to understand the nature of the proceedings so as to instruct his lawyer and to make a proper defence;

(b)     to understand the substance of the evidence;

(c)     to give evidence on his own behalf; and

(d)     to make rational decisions in relation to his participation in the proceedings (including whether or not to plead guilty), which reflect true and informed choices on his part.”^[9]

16  The Bailiff qualified his direction by saying—

“… it will not be sufficient in itself to justify a finding of unfitness to plead that an accused person is someone of limited intellect or someone who, for other reasons, might find the criminal process puzzling or difficult to follow. I envisage that some evidence of a clinically recognized condition [our emphasis] leading to incapacity would be required before a finding of unfitness could be made. In this connection, it is worth underlining an important distinction between the process of adjudicating on unfitness to plead in Jersey and in other parts of the British Isles. In Jersey the duty of adjudication is placed not on a jury^[10] [this duty now falls to a judge sitting alone] but on the Jurats, who are a mature and experienced body of judges upon whom considerable reliance to arrive at a considered and reasonable conclusion can be placed.”^[11]

17  The first requirement then is evidence of a clinically recognized condition subsisting at the time of assessment for fitness to plead. Should the Jurats, in due course, find a defendant unfit to plead, then the relevant part of art 1(3) reads: “If the Superior Number of the Royal Court finds the accused to be so insane as aforesaid, it shall be lawful for the original court to order the accused to be detained during Her Majesty’s pleasure”. The provision does not make compulsory hospitalization mandatory, only “lawful”. Indeed, the Bailiff in Prior referred to two judgments of the European Court—Winterwerp v The Netherlands^[12]and Luberti v Italy^[13]which both held that nobody 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 hospitalization. It is conceivable that a finding of unfitness might be made for which treatment was appropriate, but not in a hospital environment. That would not mean, of course, that a finding of unfitness would be without consequence, as the defendant could still receive psychiatric treatment and care in the community. The court is not at present able to order that a defendant should receive such treatment. It would be entirely a matter for medical judgment. Perhaps some amplification of the disposal provision would be desirable so that treatment in this way might be backed by an order of the court.

18  However, since a potential outcome of the finding of unfitness or insanity may be compulsory detention in a mental hospital, it must be a “clinically recognized condition” of a type for which such hospitalization is or may be appropriate. As such, the various physical disorders which are caught by the Pritchard and McNaghten tests in England and Wales will not suffice as a basis for hospitalization in Jersey. This is because it can never be Convention compliant to detain someone suffering from a physically induced disorder in a mental hospital.

19  In practice, a clinically recognized condition is a condition which is described in the ICD-10 and the DSM-IV-TR.^[14] Either or both of these publications, as well as an up to date copy of the British National Formulary published by the British Medical Association and the Royal Pharmaceutical Society of Great Britain, may usefully be held by criminal practitioners as an aid to understanding expert psychiatric opinion, and in particular, as an aid to instructing a psychiatrist. If the psychiatrist has been trained in the legal aspects of psychiatry in England and Wales he is likely to apply what he has learned at medical school. His default setting will be Pritchard and McNaghten. Further, local members of the Royal College of Psychiatrists tend to operate within the principles of UK legislation adopted by their governing body. A particular feature of this legislation is the relatively new Mental Capacity Act 2005 (“the 2005 Act”). The 2005 Act is not concerned with the criminal law, but governs such matters as medical treatment decisions in relation to the mentally incapacitated, etc. The 2005 Act does not extend to Jersey. Section 1 sets out the principles applicable for the purposes of that Act and both it and the commentary on ss 1 and 2 appended to the Act are worthy of study by criminal practitioners since they are likely to underpin the English-trained psychiatrist’s approach to the defendant for the purpose of assessing his decisional competence in the absence of any equivalent concept in relation to fitness to plead in the criminal law of England.

20  The psychiatrist must be specifically instructed as to the differences between the law in England and Wales and the law in Jersey. If necessary, he must be expressly told to disregard s 1 of the 2005 Act since the Jersey test for fitness to plead requires him only to assist the Jurats with the cognitive, affective and volitional aspects of decisional competence, and it is the Jurats who decide the matter. The differences of approach in England and Jersey are significant and, if not made absolutely clear to the psychiatrist providing an expert opinion, could lead to miscarriages of justice.

21  If the lawyer does not make these differences clear, the likelihood is that the instructed psychiatrist will simply apply the criteria he was taught at medical school. The likelihood is also that the lawyer will not notice unless he has applied his mind carefully to the differences between the tests in the two jurisdictions, has a broad understanding of the clinically recognized condition diagnosed, and is aware that the English tests take account only of cognition whereas the Jersey tests also cater for defects of volition. The principal problems will be in directing the psychiatrist to disregard the fact that in England and Wales volition is never an issue, as well as the provisions of the 2005 Act which are not part of the law of Jersey, and can be of no assistance either to him or to the Court in criminal matters in this jurisdiction.

22  The first important question for the psychiatrist to answer therefore is: “does the defendant suffer from a clinically recognized mental condition?” If he does not, then that is the end of the matter. If the answer is yes, and compulsory detention in a mental hospital could be an appropriate outcome, then the impact upon the defendant in relation to the test for unfitness set out by the Bailiff in O’Driscoll should be assessed. The important issue for the lawyer and for the Superior Number is the bearing of the condition upon rational choices in the context of the lawyer/client relationship before and during the criminal proceedings. Any aspect of the condition diagnosed in the defendant that will or may have a bearing on his ability to instruct his advocate, or make rational choices as the trial process unfolds, should be discussed in the psychiatric report and examined in the oral evidence. The psychiatrist must consider volition as well as cognition. Factors such as impulsivity which do not feature in the English tests must, therefore, be dealt with by the psychiatrist as thoroughly as cognitive ability.

23  The psychiatrist does not decide whether the defendant is fit to plead. The matter of fitness to plead is the solely for the Superior Number to decide by applying the law to the medical facts of the case. The psychiatrist’s role as an expert is to give the Superior Number sufficient information to enable it to decide the question on a balance of probabilities if the issue was raised by the defence or, arguably, beyond reasonable doubt if the issue was raised by the prosecution. We state only “arguably”, because every member of the court has an interest in the maintenance of the integrity of the criminal process, and that interest must surely be to the same standard. The matter has yet to be decided, and will have to wait until the matter of fitness or insanity is raised by the Crown in a criminal case. Any defendant can act irrationally. However, if the irrationality is the by-product of cognitive or volitional deficiencies arising out of a clinically recognized condition, this requires to be brought to the attention of the lawyer and the Superior Number, which may find the defendant sufficiently impaired to be unfit. To this end, it is particularly important for the lawyer to have a good grasp of the diagnostic features of the condition generally, and those features specific to the defendant. This is particularly important when the lawyer is formulating his examination in chief or cross-examination as the case may be. The integrity of the trial process is founded upon the supposition that participants are capable of making rational decisions from time to time as the process unfolds. This may not be the case if decision making is dictated in whole or in part by symptoms of the condition from which the defendant suffers.

24  The court will of course consider what the psychiatrist says, but what he says is not decisive of the issue of fitness. A recent example of psychiatric opinion on fitness to plead and insanity read:

“This is a … disorder in which there is a marked tendency to behave without consideration of the consequences together with affective instability. The ability to plan ahead may be minimal and outbursts of intense anger may often lead to violence or ‘behavioural explosions’. These are easily precipitated when impulsive acts are criticized or thwarted by others. In addition, the patient’s own self-image, aims and internal preferences are often unclear or disturbed. There are usually chronic feelings of emptiness, a liability to become involved in intense and unstable relationships that cause repeated emotional crises and may be associated with excessive efforts to avoid abandonment and a series of suicidal threats or acts of self harm.”

The report went on to state:

“A prison sentence … in my view, is not a deterrent. However longer term institutional care in my opinion would not be helpful and following the model of personal responsibility, that mental health services have been using, should [sic] be continued. In my opinion X has the capacity to make choices in her actions including the alleged actions surrounding the charges she is facing and also X is responsible for her actions.”

25. No account was given in the report of the reasons why the psychiatrist thought that the defendant concerned had the capacity to make choices unaffected by her mental condition, or why X’s mental condition has no bearing on her responsibility for her actions. In arriving at this conclusion, no reference was made to the clear diagnostic evidence of affective disturbance or the volitional disabilities particular to the facts surrounding the defendant. No reference was made to either O’Driscoll or Prior. The DSM-IV Diagnostic Features of the condition were not appended to the report and therefore the court would not have known, had it been consulted which it was not, that cognition might also be affected, since it was not mentioned in the opinion. There was no exploration of the potential impact of “minimal ability to plan ahead” on the defendant’s ability to conceptualize the trial as a whole or to weigh the potential impact of choices made as the criminal process unfolds. The psychiatrist concluded that X was “responsible for her actions” following the “model of personal responsibility that mental health services have been using”. No information was given in the report as to the nature of that “model”, and so the court could not have considered whether it bore any relationship to the legal test set out by the Bailiff in O’Driscoll. It is quite possible that this report was the result of inadequate instructions by the lawyer who requested it.

26  Psychiatric reports often state that patients are “responsible for their actions” or refer to the “model of personal responsibility” which mental health services have been using. This is all very well. However, decisions as to fitness to plead, and as to criminal responsibility are not within the mental health services’ remit. Fitness to plead and criminal responsibility are matters of law, not medicine. It is for the court to be satisfied that the criminal process, if embarked upon, is not a farce and, if punishment is the eventual outcome of the process, for the court to be satisfied that criminal responsibility is genuine. It should not be assumed or decided on the basis of irrational, symptom-related choices. The psychiatric “model of personal responsibility”, whatever that is, may lead to the use of criminal justice as a therapeutic tool and as a dumping ground for mental health cases. The fact that Jersey has mental health defences which have been defined by the Bailiff to include deficiencies of volition, means that a psychiatrist’s opinion concerning the defendant’s fitness to plead and the moral responsibility of the defendant for his actions, especially where the legal tests have not been applied by him or inadequately applied, is not the only issue relevant to the matter to be decided by the court. The court must be sure to the relevant standard that if the criminal process progresses, choices which will or may have a significant impact both upon the outcome for the defendant, and upon the integrity of the trial process, are uncorrupted by cognitive or volitional defects which are features of the defendant’s clinically recognized mental condition. By way of example, a regular feature of many mental disorders is a strong aversion to psychiatrists, medication and psychiatric hospitals. Nevertheless contact with psychiatrists, medication or compulsory hospitalization may be the very things that a defendant most requires. The court, in deciding on fitness to plead in a case such as this, will be alert to the fact that choices might very well be made by a defendant on the basis that his aversion to psychiatry is stronger than his aversion to criminal punishment. If psychiatric treatment is warranted in his case then, whilst the decision making of the defendant may be understandable, it is not rational, and the Jurats could not be criticized for refusing to allow it to infuse the criminal case. The court will not wish its own process to be bowdlerized in this way.

27  A finding of unfitness to plead is not a conventional plea in bar. After treatment, either in hospital or outside the hospital environment, it may well be the case that a defendant can properly plead to the indictment. A review hearing could clearly be accommodated under art. 1(1) of the 1964 Law. Once the defendant has been found fit to plead by the Superior Number, defence counsel may resume taking instructions and giving advice.

Insanity at the time of the act

28  If the defendant was, according to information in the psychiatric reports, mentally impaired at the time of the commission of the alleged criminal act, he may be able to run the defence of insanity. Article 2(3) permits him to do so either before a jury or before the Jurats. Should the Superior Number have found him unfit to plead on an earlier occasion he would be wise, if running the defence, to take heed of the Bailiff’s observations in O’Driscoll that the Jurats are “a mature and experienced body of judges upon whom considerable reliance to arrive at a considered and reasonable conclusion can be placed”, and to opt for an Inferior Number trial of the matter of insanity as a defence to the count on the indictment, rather than entrusting his defence to the “unruly horse” of a jury.

29  In Prior^[15] the Bailiff laid down the following test for the defence of insanity—

“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 RD 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.”^[16]

30  In doing so he made it clear that this test is not limited to matters of cognition saying—

“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.”^[17]

29  It is worth quoting a passage from HLA Hart’s Punishment and Responsibility: Essays in the Philosophy of Law which encapsulates the conflict between lawyers and doctors. This passage was quoted by the Bailiff when deciding the test for insanity at law in Prior:

“This dispute raged throughout 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 they limited legal inquiry to the question of knowledge. The lawyers replied that the doctors, in seeking to give evidence about other matters, were attempting illicitly to thrust upon juries their views on what should excuse a man when charged with a crime: illicitly, because responsibility is a question not of science but of law.”^[18]

32  What is written above concerning the psychiatric “model of personal responsibility” is as pertinent to insanity as a defence to a criminal charge as it is to insanity as an impediment to trial. The psychiatric “model of personal responsibility” is only one of the factors for consideration by the Jurats and will be largely irrelevant if it does not correspond to the legal test set out by the Bailiff in Prior.

33  Once the accused has  been found fit to plead, he may give instructions not to pursue the defence of insanity at the time of the act, and his legal representative may act on those instructions. However, the client needs to know that if he were to run the defence, and it were to be successful, then, following Winterwerp and Luberti,it would not necessarily lead to compulsory hospitalization. If the client no longer required psychiatric treatment of a kind for which such confinement was appropriate, psychiatric treatment in the community, if it were medically required, would not be precluded.

34  The relevant part of art. 2(2) of the Law reads “Where such special verdict is found, it shall be lawful for the court to order the accused to be detained during Her Majesty’s pleasure”. Article 3 adds—

“It shall be lawful for a person in respect of whom an order has been made in pursuance of art 1(3) or 2(2) of this Law, to be detained in St. Saviour’s Hospital until Her Majesty’s pleasure is known and thereafter to be detained in the Hospital by order of Her Majesty during pleasure; and any such order shall be sufficient authority for the reception and detention of that person in the Hospital.”

35  However, the same considerations apply to the defence of insanity as are discussed above in relation to unfitness to plead. In short, although psychiatric treatment outside the hospital environment will always be possible, hospitalization in the absence of an appropriate clinically recognized condition of the requisite degree of severity will not be Convention compliant. The biggest obstacle to the use of the defence laid down in Prior may well prove to be the potential stigma of the label “insane”. In the 21st century it is surely time to rid the law of such a deeply stigmatic term and replace it with one which is less pejorative. Such a development would be a welcome addition to the major reforms contained in both O’Driscoll and Prior, namely the rejection of Pritchard and McNaghten, and their replacement with tests which have developed Jersey law to include decisional capacity, and volitional impairment which, together with Convention compliance, render them well suited to the 21st century.

Further practical considerations

36  A trial of fitness to plead before the Superior Number and an Assize or Inferior Number trial of insanity at the time of the offence are both significantly time consuming and expensive. Nevertheless, a mentally disordered defendant may have been charged with matters which would normally remain within the jurisdiction of the lower courts.

37  In England, it is often the case that, after interview, a mentally disordered person is diverted from the criminal justice system into a mental health setting. Consideration might well be given to a similar diversion system in Jersey. Criminal practitioners who appear regularly in the Magistrate’s Court are familiar with those defendants who suffer from mental health problems and offend again and again in a relatively minor way. If the tests in Jersey were strictly applied, very often the result would be diversion to psychiatric services. As matters stand at present, psychiatric services appear to be using criminal justice as a therapeutic tool by simply ignoring the volitional and decisional capacity aspects of those tests in practice, and using instead the psychiatric “model of personal responsibility”, whatever that is, as a yardstick. Rather than trying the matter of fitness and insanity in the higher courts would it not be worthwhile for criminal justice at prosecution level, and at an early stage, to refer these cases firmly back into the mental health sphere where possible?

Conclusion

38  In terms of the application in this jurisdiction of tests formulated by the Bailiff to take account of Jersey’s legal history and the European Convention it can be said to be very early days. It will be some time before the courts and criminal litigators become acclimatized to the concepts to be addressed and the procedures to be followed. It is important to remember that criminal litigators are required to get to grips with a wide variety of issues on a daily basis when conducting criminal practice: subjects as diverse as mechanical engineering, the pathology of bruising, and forensic accountancy. We regularly instruct experts in those areas and have to understand their subjects sufficiently well to be able to examine and cross-examine on them. Psychiatric medicine is simply another subject, and neither the lawyers nor the Courts should allow themselves to find it intimidating or confusing.

39  We need to remember Fitzjames Stevens’ dictum, “the meaning of responsibility is liability to punishment”, and that criminal punishment is a matter of law. We need to remember that the meaning of responsibility too is a matter of law to be decided by the courts since it leads in law to criminal punishment. Neither lawyers nor the courts should rely only on psychiatric opinion concerning these issues. Psychiatry is not an exact science, and is continually evolving. Policy considerations, such as government requirements to save money by the closure of mental health facilities and the introduction of care in the community, may also have a bearing on such opinion. We need to learn the vocabulary of psychiatry and to learn to ask the questions that can establish to the courts’ satisfaction the defendant’s status with regard to the Bailiff’s tests. Our only interest in the area is the point at which there may exist a potential nexus with criminal justice; the only questions that concern us: “Is the defendant legally capable of participating in his trial?” and “Is he legally responsible for what he did?” “Are we therefore satisfied that this case, if heard and determined against the defendant, warrants criminal punishment?” The fact that Jersey has not gone down a road that enables epileptics to be regarded as legally insane is an indicator of the good health of the local approach. It is up to us to maintain it.

Caitriona Fogarty is a advocate in general criminal practice at Ogier.

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