1. Psychiatry in Court Forensic Session 4

2. Curriculum Links 12.2Psychiatry and the Criminal Justice System 12.2.2Psychiatric defences: fitness to plead, mutism and deafness, criminal responsibility, diminished responsibility, amnesia and automatism 12.2.3Psychiatric disposals following conviction

3. Learning Objectives To develop an understanding of… Medico-legal concepts The use of psychiatric defences in Court as complete or partial Defences to crime and the role of mental disorder in mitigation

4. Outline of lecture Criminal Responsibility Fitness to plead Insanity & Automatism Diminished Responsibility Loss of control Intoxication Duress Amnesia Malingering Aggravating & Mitigating Factors

5. Criminal Responsibility To be responsible for a criminal act, the person must do the act and be responsible for their actions – Actus Reus – Mens Rea What is the age of CR in England & Wales? – 10

6. Fitness to Plead Pritchard Criteria

7. Fitness to Plead Pritchard Criteria Can you list them?

8. Pritchard Criteria *mute by malice or by visitation of GodThe defendant must be capable of Understanding the charges and deciding whether to plead guilty of not Following the course of the proceedings Challenging a juror Instructing counsel Giving evidence to their own defence

9. Crown Court news.bbc.co.uk

10. Fitness to Plead Pritchard Criteria vs ECHR – Article 6(1) Effective participation = broad understanding Future development = Capacity-based assessment?

11. Procedure – Unfitness to Plead Criminal Procedure (Insanity & Unfitness to Plead) Act 1991UTP  Trial of the factsDisposals Hospital order +/- Restriction order Supervision and treatment order Absolute discharge Remitted to court when fit to plead

12. Insanity

13. Not Guilty by Reason of Insanity (NRGI) Lack of mens rea Legal concept – NOT a medical one What is the test for insanity? – M’Naghten Rules

14. Daniel M’Naghten

15. M’Naghten Rules 1. The accused was labouring under a defect of reason; 2. Arising from a disease of the mind; 3. So as not to know the nature and quality of the act; 4. Or if he did know, he did not know it was wrong At the time of committing the act:

16. Defect of Reason Complete inability to use reasoning skills Temporary or permanent Defect of reason is not – Failure to reason – Impulsivity – Absent-mindedness – Confusion Irresistible impulse

17. Disease of the mind Mind = mental faculties of reason, memory and understanding Any disease that affects the proper functioning of the mind Internal cause – intrinsic manifestation Includes – Arteriosclerosis (R v Kemp 1956) – Alcohol-induced brain damage (R v Burns 1974) – Epilepsy (Bratty v AG 1962) – Hyperglycaemia in diabetes (R v Hennessey 1989) – Sleepwalking (R v Burgess 1991)

18. Nature and quality of the act Nature and quality are not separate constructs – R v Codere 1916 Ordinary man test

19. Did not know it was wrong R v Windle [1952] 2 Q.B. 826 – “I suppose they’ll hang me for this” – Wrong? R v Johnson [2007] EWCA Crim 1978 – Wrong? Wrong = contrary to law – Area for much debate – “..even persons who are grossly disturbed generally know that murder and arson are crimes.” Butler Report 1975

20. Defence of NGRI Defence (balance of probabilities)Prosecution (beyond reasonable doubt)CourtJury verdictWritten / oral evidence of 2 medical practitioners (1 s12 approved)

21. https://www.youtube.com/watch?v=l_6l8w9MJI0

22. Disposals following special verdict 1.Hospital order +/- Restriction Order 2.Supervision Order 3.Absolute discharge

23. Automatism Insane automatism = Insanity “an involuntary movement of the body or limbs of a person…that, at the material time had occurred…a complete destruction of voluntary control”

24. Automatism Internal / External factor debate in law – Less clear clinically Important because of disposal – Insane automatism (insanity)  disposals as discussed – Sane automatism  acquittal

25. Examples of automatism Unconscious whilst driving due to being hit by a stone Overcome by a sudden illness Attacked by a swam of bees Concussion Being under hypnosis Being under the effects of anaesthesia

26. Examples of automatism Epilepsy Case law has found insanity to be appropriate defence Out of keeping with medical understanding Sleepwalking Led to findings of both sane and insane automatism But can sleepwalking be a defect of reason?

27. Examples of automatism Diabetes Internal / External factor divide Hyperglycaemia  insane automatism Hypoglycaemia  non-insane automatism Medical evidence show both hypo and hyper-glycaemia are features of disease

28. Diminished Responsibility

30. Partial defence to murder The defendant (D) was suffering from – an abnormality of mental functioning which arose from a recognised medical condition; – that substantially impaired his ability to do one or more of the following Understand the nature of his conduct Form a rational judgement Exercise self-control; and – Provides an explanation for D’s acts and omissions in relation to the killing

31. Diminished Responsibility Abnormality of mental functioning – Reasonable man would term in abnormal Recognised medical condition – Intended to allow valid medical diagnoses linked to valid classificatory systems Asperger’s syndromeBattered woman syndrome DepressionPND & PMS SchizophreniaEpilepsy Psychopathy

32. Diminished Responsibility Raised by defence on balance of probabilities Decided by jury If successful, defendant is liable to manslaughter conviction Wider range of sentencing options available to judge

33. Loss Of Control

35. Loss of Control Replaced common law defence of provocation Partial defence to murder Judge decides if there is enough evidence to raise the defence, then burden of proof is on prosecution to prove it is not satisfied All 3 criteria must be satisfied

36. Loss of Control Acts or omissions in relation to killing resulted from loss of control The loss of control had a qualifying trigger A person with similar characteristics may have acted in the same way

37. Psychiatric Evidence Psychiatrists may give evidence in relation to the person’s ‘woundability’ in response to the qualifying triggers – E.g. depressive disorder may make someone more easily wounded by taunts

38. Involuntary Intoxication

39. Intoxication A drunken intent is still an intent (R v Kingston [1995]) Involuntary intoxication – Alcohol / drug dependence syndrome – Must be no control at all If didn’t know the drug would have that effect could be involuntary

40. Duress

41. Defence based on reacting to specific threats or circumstances. Complete defence Duress of threats (coercion) Duress of circumstances (necessity) Defence of duress does not apply to murder, attempted murder or treason

42. Duress Psychiatric evidence may be relevant where the person had a MD that may have reduced their fortitude to below reasonable.

43. Amnesia

44. Amnesia for an offence is not a defence in law Clinical assessment – read EVERYTHING Dissociative amnesia – Patchy amnesia – Emotionally significant events – Other symptoms of dissociation must be present Alcohol-induced amnesia

45. Malingering

46. Not an ICD-10 / DSM diagnosis Intentional production of false or grossly exaggerated physical or psychological symptoms motivated by an external incentive Prevalence – General population <1% – General psychiatric patients 0.4 – 0.8% – Prisoners and forensic patients – no data

47. Clues to a malingered defence Resnick (2003) – Non-psychotic, alternative rational motive – Atypical hallucinations / delusions – Crime fits established pattern of criminal conduct – Absence of psychosis during evaluation – Partner in crime – Inconsistent level of functioning

48. Ganser Syndrome A syndrome of – Approximate answers – Clouding of consciousness – Conversion symptoms – Hallucinations – Abrupt resolution with amnestic gap Best avoid this diagnosis

49. Assessment Very thorough history and MSE Collateral history is important Structured psychometric tests can be used – MMPI-2 – SIRS – TOMM

50. Aggravating & Mitigating Factors

51. Aggravating Factors Greater degree of harm Victimising vulnerable people Offending against someone serving public Multiple victims Causing serious injury / mental trauma Offending against / in presence of children Greater degree of culpability On bail for another offence Hate crime Planning Professional criminal Under the influence Weapon Abusing position of trust

52. Mitigating Factors Lower culpability or less severe harm caused Provocation (not for murder) Relevant disability or mental disorder Young / vulnerable / immature Limited role in offence Remorse Reporting to police Pleading guilty

53. Psychiatric Evidence May be instructed to prepare a report on a defendant’s mental disorder for the purpose of sentencing May be used in mitigation May highlight aggravating factors

54. QUESTIONS?