1. 1 ‘Are current mental condition defences defensible?’ Professor Nigel Eastman St George’s University of London

2. 2 An alternative title… TRANSLATING MENTAL HEALTH SCIENCE INTO CRIMINAL LAW

3. 3 …and the inherent problem in doing so

4. 4 Or… COMMUNICATING MENTAL HEALTH SCIENCE INTO CRIMINAL LAW

5. 5 Because… …in relation to acknowledging the relevance of mental disorder/conditions there is inherent ‘mismatch’ of law and psychiatry And …varying mismatches in relation to other mental health sciences

6. 6 …medicine makes constructs of ‘real things’, adopted to achieve ‘welfare’… …law makes constructs (of mental disorder) that are ‘artifices’ adopted to achieve (abstract) ‘justice’ Hence Law adopts multiple constructs of ‘mental disorder’ for multiple legal purposes (within different ‘domains’ of pursuing justice) Medicine adopts ‘single’ diagnostic constructs (pursuing a single domain of welfare)

7. 7 So… Attempts to fit psychiatric (and psychological) diagnoses into individual (sometimes multiple) legal definitions (including ‘yes or no’)… are bound to result in ‘distortion ’ With A risk also of ‘miscommunication’

8. 8 That is… Law, by its nature and process, may be incapable of acknowledging scientific evidence Without… At best, misunderstanding such evidence At worst, frank distortion of it Put simply… Law asks questions which it is unlikely science can answer; whilst science answers questions that the law largely does not pose

9. 9 Sentencing is somewhat different… Can describe ‘psychological reality’ with much less distortion Can better take account of the ‘reality’ of disorder often without trying to ‘fit it’ into discrete legal categories

10. 10 So… Overall approach can only be… To ‘represent’ mental disorder in legal terms as well as is possible… …and with least ‘distortion’ Avoiding unnecessary ‘miscommunication’ And with an eye on pragmatism Recognising that true ‘representation’ is impossible If the law really wishes to do so!

11. 11 Law Reform Agenda [directed at enhancing/altering ‘justice’; ? including via better representation of ‘psychological reality’] ‘Concerns’ expressed to Law Commission (2003): Re ‘provocation’: Concern re too narrow for some, eg ‘battered women who kill’; and too wide for others, eg. ‘abusive men who kill’ Whether it is right to allow ‘provoked anger’, rather than merely ‘provoked fear’ (less than for ‘self defence’) Re ‘diminished responsibility’ None in particular (though great reduction in ‘use’)

12. 12 Law Commission: ‘Partial Defences to Murder’ (2004) Law Commission: ‘Murder, Manslaughter and Infanticide’ (2006) Ministry of Justice: Review of Partial Defences (2008) Coroners and Justice Bill 2009

13. 13 No ‘acceptance’ by LC of the psychological ‘spectrum’ between the apparently irreconcilable partial defences of ‘provocation’ and ‘diminished responsibility’ (see later) Because no recommendation by LC to create a ‘single partial defence’ (2006) No consideration (then) of mental condition defences to charges ‘less than murder’ (eg ‘insanity’) That is, Law in ‘segmented bits’ Law relatively unresponsive to ‘psychological reality’ Because focused upon ‘justice’

14. 14 BUT… Is not recognising psychological reality a ‘necessity’ for justice? Or at least a ‘necessary component’ That is: Is not understanding real human functioning a necessary condition for taking decisions about ‘setting the threshold’ within achieving/setting justice? Albeit justice ‘goes beyond’ this: ie addressing moral or legal responsibility may ‘depend’ upon scientific data…but then requires entry into a very different ‘thought domain’.

15. 15 LAW CONCERNING MENTAL DISORDER AND VERDICT/SENTENCE Historical recognition of relevance Information from a discipline, medicine, with different purposes and constructs from law ‘Translation’ as an exercise in ‘construct relations’ Legal ‘critique’ of medical constructs, eg graded v. binary; eg ‘wrong’ constructs Legal v. medical method, adversarial v. investigative ‘Psychiatric critique’ of legal constructs re mental disorder, different between and within legal fields

16. 16 With… (Different) legal definitions driven by legal contexts/purposes Driven, in turn, by public policy in different legal domains Different ‘translation’ problems in different legal domains, because of: different legal representations different procedural and evidential rules Attempt to fit psychiatric (and psychological) diagnoses into individual (sometimes multiple) legal definitions (‘yes or no’)… bound to result in ‘distortion’

17. 17 Criminal Legal Domains Distinguish : pre-trial use of psychiatry trial (towards verdict) use of psychiatry sentencing use of psychiatry

18. 18 Trial Use capacity to have formed specific intent insanity automatism infanticide diminished responsibility provocation duress (not re murder)

19. 19 Sentence use is different… Mitigation ‘Personalised’ sentencing (if non-mandatory penalty) Can often better take account of the ‘reality’ of disorder without necessarily trying to ‘fit it’ into discrete legal categories So… Can often describe ‘psychological reality’ with much less distortion

20. 20 A Sensible Approach to Reform In ‘re-setting’ justice: To ‘represent’ mental disorder in legal terms as well as possible… …and with least ‘distortion’ And with an eye on pragmatism

21. 21 Focus on: Insanity Diminished responsibility Provocation [Infanticide: is it necessary?]

22. 22 INSANITY ‘defect of reason’ (not emotion or volition) ‘did not know the nature or quality of the act’ ‘did not know that it was (legally) wrong’ Psychiatric critique: highly ‘partial’ mentally very high cognitive threshold therefore no ‘adequate’ range of mental condition defences to charge less than murder In context of: extension of mandatory and ‘public protection’ sentencing!

23. 23 DIMINISHED RESPONSIBILITY Murder reduced to manslaughter ‘Abnormality of mind’ ‘Whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury’ (Byrne) ‘As substantially impaired his mental responsibility in doing or being party to the killing’

24. 24 Critique: Broad and ‘uncertain’ ‘False positives’ and ‘false negatives’ But: ? allows ‘natural justice’ (because is broad) Reflects ‘all mental disorder’

25. 25 Legal recognition of mental disorders as ‘abnormality of mind’ A state ‘so different from ordinary human beings…’ ‘…reasonable person would term it abnormal’ ‘The mind in all its aspects’ (Byrne [1960]) Includes psychosis, neurosis, personality disorder, learning disability. Includes disorders of cognition, perception, affect, volition. Includes ‘irresistible impulse’ (Byrne [1960]) Does not have to ‘border on insanity’ (Rose [1961])

26. 26 ‘Reactive depression’ (Seers [1984]; Reynolds [1988]) ‘Reactive depression’ within ‘mercy killing’ (Price [1971]) ‘Pre-menstrual syndrome’ (Craddock [1981]) Can co-exist with drug ingestion (Sanderson 1994]) Includes ‘substance dependence syndrome’, but must have been ‘irresistible craving’ (Tandy) But Must be some psychiatric evidence to suggest presence of abnormality of mind (Dix [1981])

27. 27 Legal determination of ‘substantial impairment of mental responsibility’ Moral/legal, not medical ‘Less than total, more than trivial’ (Lloyd [1966]) Jury decision Room ++ for jury variation (the search for ‘natural justice’?) ‘No comment’ upon ultimate issue by experts, merely describe nature of mental state abnormalities and nature and extent of impact on conduct No longer ‘netting out’ of alcohol/drugs (Dietschman) Intoxication ‘allowed’ as factor within substance dependence if there was ‘irresistible craving’, because of ‘dependence’ as (aspect of) ‘abnormality of mind’

28. 28 Diagnosis relevance to ‘substantial impairment’ Nature of diagnosis (ie may be almost ‘obvious’), eg severe psychosis Evident ‘connections’ between ‘abnormality’ and killing Absence of other factors better ‘connected’ with killing (‘understandable’ in ordinary terms despite disorder; cultural factors) –Absence of ‘violent personality’ –Absence of substances (but Dietschman, Tandy) Violence when previously ‘abnormal of mind’ (?) IE ‘Setting the scales’

29. 29 Killing solely from mental abnormality, or ‘triggered’ Compare ‘pure abnormal killing’ (eg uncomplicated severe psychosis) and ‘triggered abnormal killing’ ‘Abnormality of mind’ as vulnerability to ‘triggering’ Second limb of ‘diminished’ incorporating ‘vulnerability’ ‘Cross over’ with ‘provocation’ Diminished and provocation as legally ‘incompatible’ (see MacKay) Diminished and provocation as psychologically plausible (common)

30. 30 Aspects of ‘abnormality of mind’ as ‘mental characteristics’ A ‘spectrum’ from ‘pure diminished’ to ‘pure provocation’ Juries searching for ‘natural justice’ ‘in between’ diminished and provocation, ‘unspecified manslaughter’

31. 31 PROVOCATION Section 3 Homicide Act 1957 ‘Things said or done’ ‘Sudden loss of mastery over the mind’ (Duffy) ‘Reasonable man’ would have done so ‘Subjective’ and ‘objective’ tests

32. 32 Ignored until recently by psychiatrists (‘not a medical defence’) ‘Characteristics’: Camplin; Newall Previous attempts to distinguish mental characteristics going to ‘sensitivity’ from ‘reactivity’, Luk Eg depressive illness and vulnerability to denigration, and lowered threshold to violence Relevant ‘characteristics’, and ‘circumstances’ (Moorhall) Expansion through Morgan Smith Limited again in Holley (back to Luk) Anger and/or fear (less than self defence) ‘Coincidence’ of anger and fear (Royal College evidence to Law Commission, ‘Partial Defences to Murder’ (2004))

33. 33 A spectrum between ‘pure diminished’ and ‘pure provocation’ Pure diminished: pure psychotic drive (without any trigger) Pure provocation: severe provocation without ‘vulnerability’ in the perpetrator But: Aspects of ‘abnormality of mind’ as ‘mental characteristics’ A ‘spectrum’ from ‘pure diminished’ to ‘pure provocation’ Juries searching for ‘natural justice’ ‘in between’ diminished and provocation, ‘unspecified manslaughter’ Concept of the size of the legal ‘gap’ within a discontinuous spectrum (compare Morgan Smith and Holley)

34. 34 Therefore: Hybridise ‘diminished/provocation’ ? reform to ‘one defence’ (rejected, Law Commission, 2004) If not, ? injustice to (eg) battered women who do not kill ‘suddenly’ (Eastman and Mezey); and ? too lenient on men who kill partners, ‘suddenly’ Alternative reform, modify provocation defence, leave diminished as is (Law Commission, 2004) But still fails to reflect psychological reality

35. 35 LAW COMMISSION REVIEW OF MURDER Not also ‘insanity’ (but now been referred to Law Commission) Reform of structure of murder Reform of partial defences (and suicide pact, duress, also infanticide)

36. 36 Structure of Murder ‘First and second degree murder’ ‘First’ where ‘intention to kill’ ‘Second’ where ‘intention (only) to do GBH’ ‘First’ to result in mandatory life sentence ‘Second’, discretionary sentencing

37. 37 Psychiatric implications: ‘First degree murder’ with required ‘intention to kill’ would limit the frequency of operation of ‘mismatch’ of law and psychiatry; more cases will go into ‘sentencing’ relationship between expert and court Will be far fewer contested DR cases

38. 38 Reform of Provocation and Diminished Responsibility Still separate defences No recognition of ‘spectrum’ ‘Adjustment’ to DR Substantial change to provocation (consistent with, but beyond Holley) Concentrate on DR

39. 39 Diminished Responsibility Limit DR to ‘first degree murder’ No ‘logic’ But ‘internal legal logic’ in line with the history of diminished responsibility (ie death penalty, and avoidance of mandatory life sentence)

40. 40 Replace existing definition of ‘diminished responsibility’ With: capacity to: –understand nature of conduct –form a rational judgement –control self was substantially impaired by… an abnormality of mental functioning… arising from a recognised medical condition’… or by developmental immaturity ‘provides and explanation’

41. 41 Psychiatric response: Generally is a ‘narrowing’ of DR ‘impaired capacity’ may not add, and may complicate ‘arising from a recognised medical condition’, may produce more legally comprehensible evidence, and limit ‘idiosyncratic’ expert evidence ‘immaturity’ addition is logical ‘causation’, may be evidentially difficult

42. Coroners and Justice Bill 2009 No restructuring of homicide. Diminished responsibility: ‘abnormality of mental functioning’ ‘arose from a recognised medical condition’ ‘substantially impaired D’s ability to –‘understand the nature of D’s conduct’ –‘form a rational judgment’ –‘exercise self control’ And ‘abnormality provides an explanation for D’s acts’ Exclusion of ‘developmental immaturity’! 42

43. ‘abnormality of mental functioning’ Better, because emphasises ‘function’ not ‘state’ 43

44. ‘arose from a recognised medical condition’ Controversial, but ‘inevitable’? 44

45. ‘substantially impaired D’s ability to... ‘understand the nature of D’s conduct’ ‘form a rational judgment’ ‘exercise self control’ Only final element is not ‘insanity’ like. 45

46. ‘abnormality provides an explanation for D’s acts’ Difficult evidentially, but inevitable? 46

47. Exclusion of ‘developmental immaturity’ Illogical (eg if all other elements are met, and the ‘cause’ is (normal) developmental immaturity Driven by fear of ‘age’ defences False fear Driven by ‘relationship’ with ‘age of criminal responsibility’ of 10 years Non-logical because not a ‘binary’ model 47

48. Failure to ‘relate’ to other mental condition defences Insanity Infanticide Provocation (?) 48

49. 49 Provocation Only for ‘first degree’ Accept Holley Enhance required ‘objective’ provocation ‘Gross provocation’

50. 50 Psychiatric Concerns: Definition of ‘relevant’ mental characteristics is too narrow…including in relation to ‘battered women’ ‘Relevant’ characteristics should be defined as such by virtue of real relevance to ‘wounding’ or ‘fear’ Eg, ‘fear’ route to provocation, battered woman may experience ‘heightened perception of fear’ Eg, ‘anger’ route to provocation, a depressed person is more wounded by taunt of ‘useless’ ‘Inseparability’ problem

51. 51 CONCLUSIONS

52. 52 Can Law Ever Reflect Psychological Reality, Without Distortion? Differential purposes of law and medicine Differential constructs Incongruence of constructs Teubner, law as an ‘autopoietic science’, ‘non-reflexive’ Law adopts different constructs and evidential rules in different legal contexts Less resistant to other sciences in, eg, child welfare law Tight definitions and evidential rules in criminal law, therefore highly ‘non-reflexive’

53. 53 The problem is: distinct legal defences cannot reflect psychological reality So ? a single defence No (Law Commission) The real problem is…

54. 54 The mandatory life sentence for murder!