Revision Of Rules On Legal Insanity Urged

Press, Volume XCI, Issue 27690, 21 June 1955, Page 16

Revision Of Rules On Legal Insanity Urged

“Insanity is still no safeguard against hanging,’’ says Mr W. J. Hall in the “New Zealand Law Journal” in an article pleading for the revision of the McNaghten Rules on legal insanity on which Judges have been directing juries since 1843. “That a man may be quite insane, but still condemned and hanged for his actions, is a state of affairs that should not be a matter for satisfaction in a civilised community. Psychiatrists maintain that the rules are hopelessly out of date.

“In 1843 a man shot and killed Daniel McNaghten, secretary to Sir Robert Peel, against whom he fostered delusions of persecution. The jury found him not guilty and the House of Lords submitted certain questions to the Judges, who answered: 1. Every man is presumed to be sane until the contrary is proved to the satisfaction of a jury; 2. To establish a defence of insanity it must be clearly shown that, at the time of committing the act, the accused did not know what he was doing, or (if he knew this) did not know the difference between right and wrong.

“Psychiatrists are dissatisfied with the rules, which they maintain are unscientific, built on a misapprehension of the true nature of mental disease and today are hopelessly out of date. In 1843 psychology hardly -existed, psycho-analysis was not born, and psychiatry was in a crude state, but all have made great developments and reveal much that was previously unsuspected in the undercurrents of human behaviour.

“Defect of reason is stressed in the rules. When they were propounded, the mind was arbitrarily divided into faculties of reason, feeling, and so on, but that division is now ‘as dead as the dodo.’ Emotional driving forces are all-important in the study of behaviour. Reasoners Processes “The law tends to see in delusion the main, indeed, the only manifestation of insanity, and, in general, to take the attitude that, if the reasoning processes are in function, theo insanity as a basis for excuse cannot exist. This is ‘contrary to modern psychiatry which ascertained that much mental abnormality and insanity were due to emotional upsets. “The matter of the ‘uncontrollable impulse’ has no mention in the rules, although some profound lawyers and most psychiatrists maintain it must be

given due weight. They hold that a man might * know the nature and quality of his act, might know also that was wrong and punishable by law, but might still, by reason of mental disease, be incapable of resisting the impulse to do it.” Mr Hall says that the law is conservative and rightly so. The matter has been raised before, as long ago as 1877. In 1950, before a Royal Commission on capital punishment, the British Medical Association advocated as an additional ground for a defence of insanity that the accused was suffering from a “disorder of emotion such that, while appreciating the nature and quality of the act, and that it was wrong, he did not possess sufficient power to prevent himself from committing it.” That defence was not in English law, although several American State Courts admitted it and in Scotland juries were ready to bring in a verdict of homicide with diminished liabilty. Recent Trials Referring to the trials of Ronald True, Heath, Haigh, Peter Griffiths, and Parker and Huhne, Mr Hall says some at least were suffering from advanced insanity, although in law it was not pleadable and did not save them from the gallows. “If a child, by reason of his immaturity, is regarded in law as incapable of forming the guilty intent which is an essential element in any crime, is it reasonable that an adult whose mental age is that of a child should be punished as if he were a responsible person?” asks Mr Hall. “Yet the law takes notice only of chronological age, and not of mental age. “If it is argued that a murderer, even if insane, is better destroyed, many remarkable cqres are being made in mental disease of all sorts. In Broadmoor, to which many criminals of unsound mind are sent in England, expert psychiatrists make many complete cures.” Mr Hall quotes a former president of the Royal College of Physicians (Sir W. Russell Br»n) as saying: “The time has surely come to determine afresh in what circumstances mental illness should mitigate criminal responsibility. This is a question, not for lawyers or doctors, but for society to decide. It should then be possible for exDerts to devise tests which are not only consonant with justice, but sufficiently clear and simple for use in its daily administration.”