LAW RELATING TO INSANITY AND THE DEATH SENTENCE.

Star (Christchurch), Volume LXIV, Issue 936, 5 December 1933, Page 6

LAW RELATING TO INSANITY AND THE DEATH SENTENCE .

Attempts to Clarify the Complex Position of the Criminal Lunatic .

By a Christchurch Lawyer.

The Executive Council has decided not to interfere with the death sentence passed at Auckland on John Hubert Edwards who was found guilty of the murder of Mrs Christian Cunningham. The defence in this case was that of insanity and this aspect of the case would cause the Executive Council to consider the medical evidence with great care. Considerable difficulty has arisen on numerous occasions in the past in dealing with cases of this type and the public mind has often been disturbed through lack of legal appreciation of the decisions arrived at.

TPHIS MAY well apply at the present time when our judges have had occasion to comment on the too numerous instances of crime of this type, and, in one instance, to make definite reference to- the possible danger arising from the reluctance of the executive to enforce the full penalty so that the deterrent effect of the punishment is being lost. Before dealing with this case in particular it is well to consider the past history of the law in this respect. Almost a century ago, when Sir Robert Peel was walking down the street, a man, M’Naughten, attempted to assassinate him, and killed one of his secretaries, Mr Drummond. At the trial the defence of insanity was raided, and finally the question was submitted to all of the judges to report to the House of Lords. Their questions and answers have ever since that time been accepted as the guiding rules in such cases. There have been many attempts to amend or enlarge these rules since they were promulgated, but so far without any success. The best known of the other cases are those of Hav (1911), Fryer (1915), Holt (1920) and Ronald True (1922>, and in this last case particularly the whole matter was thoroughly investigated. This, of course, applies to the trial of such pleas, and in this respect the decision of the jury is inviolate. When, however, the jury has made its decision against the prisoner there still remains a further consideration of the matter before the death penalty can be exacted. Insanity has always been a defence to murder, and cases are on record as far back as the reign of Henry VII, where such a defence has been accepted. By implication the whole matter was settled when Sir Edward Coke his “Institutes” in the reign of Henry \ 111. lie dealt with the points already referred to, but he then referred to the question of’ exacting the death penalty where, although the person has been found guilty, he is or becomes mad. This is the position which exercises the mind of those in authority when considering whether to sign the formal warrant after a full consideration of the case in question. Effect on the Public. The main question with any punishment is the effect on the public not only m maintaining the respect for the law, also in setting a deterrent which will influence the mind of any person who iW , rightlv or wrongly, feel himself justified in taking the law into his own hands. The force of this deterrent is the exact point referred to by one of our own judges a

few weeks ago, and even those who disagree with the penalty as being inhumane, will admit that this aspect must be given full consideration. But what deterrent is there in hanging a man who is indubitably insane at the time the sentence is carried out? He does not realise the force of the punishment, and those who might be affected by it know full well that it is no deterrent to them. As Coke wrote: “ . . . . but it is - not so when a mad man is executed, but should be a miserable spectacle, both against the law, and of extreme inhumanity and cruelty, and can be no example to others.” This statement has been endorsed and amplified not only in numerous text-books but by our highest judges, and has led to the statutory enactment in England that if the Secretary of State has reason to believe that the prisoner is insane then inquiry shall be made. It was lack of public appreciation of this point that caused the out-cry when Ronald True was sentenced to death only to be immediately reprieved and placed under restraint. In this case following on the statement in the House by Mr Secretary Shortt, the feeling of the House itself, which reflected the public opinion, changed from marked hostility to hearty cheering. Complexity of the Law. Few people realise the fantastic complexity of the English and New Zealand law as to criminal lunatics. The vast majority think that because th~ jury in Auckland have negatived insanity as a defence to the Edwards case then the man is not insane. Whether this is so or not cannot be discussed without a full medical knowledge of the man as he now is. What the jury have said is that he was legally responsible fer his act on the morning of the murder. He may be insane but he "both knew and appreciated the act and its significance -as it concerned himself and the woman he was killing. Many an insane man does a sane thing, and many a sane man does an insane thing, hut to argue from the particular instance to the general is fallacious in this case as in general experience. We have here a man whom two wel!qualified specialists in mental disease have sworn is cert ifi ably insane, and it should be remembered that they saw him for the first time after the murder. That is sufficient evidence to warrant the detention of anv man, but it may well be that witn the evidence at its disposal the Executne Council may be justified m oyer-rulmg these doctors, well qualified though they are.