For defendants in the nineteenth century seeking refuge from the death penalty, the insanity defense was like a haven eagerly sought but with difficulty secured. For defendants now, no longer at risk of the death penalty and able to take advantage of statutory defenses akin to insanity, the defense has become like a reef fearfully avoided but easily struck. The transformation of the defense from shelter to snare is best understood when traced through the attempts of defendants to establish a defense of irresistible impulse due to mental disorder. At first, irresistible impulse was pleaded as insanity under the McNaughtan Rules. When this was no longer possible, defendants turned to the defense of involuntary conduct, a defense elaborated largely in response to the development of motoring. The courts' response to this tactic has breathed new life into the McNaughtan Rules, but legislation is required to remove resulting anomalies.
ibid., 14 July 1984, p. 435; ibid., 21 July 1984, p. 452.
5.
5. Trial of Lunatics Act, 1883, 46 & 47 Vict., c. 38, §2(1) as amended by Criminal Procedure (Insanity) Act, 1964, 12 & 13 Eliz. 2, c. 84, §1.
6.
6. See Nigel Walker, “The Insanity Defense before 1800,” in this issue of The Annals of the American Academy of Political and Social Science.
7.
7. See Richard Moran, “The Modern Foundation for the Insanity Defense,” in this issue of The Annals of the American Academy of Political and Social Science.
8.
Anyone writing on this subject now must be indebted to Walker's work, and readers will find most of the points in this article dealt with in greater detail there.
9.
9. Committee on Insanity and Crime, Report, Cmd. 2005 (1924), pp. 11-12; Royal Commission on Capital Punishment 1949-1953, Report, Cmd. 8932 (1953), paras. 456-59; Criminal Law Revision Committee on Criminal Procedure (Insanity), Third Report, Cmnd. 2149 (1964), paras. 4-5; Criminal Procedure (Insanity) Act, 12 & 13 Eliz. 2, c. 84, §1.
11. National Health Service Act, 1977, 25 & 26 Eliz. 2, c. 49, §4.
12.
12. Roger Smith, Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981).
13.
13. Walker, Crime and Insanity in England, vol. 1, The Historical Perspective, pp. 122-123.
14.
14. Nigel Walker and Sarah McCabe, Crime and Insanity in England, vol. 2, New Solutions and New Problems (Edinburgh: Edinburgh University Press, 1973).
15.
15. Criminal Statistics England and Wales Supplementary Tables 1982 (London: Her Majesty's Stationery Office, 1983), vols. 1, 2, and 4.
16.
see too Richard Sparks, “Diminished Responsibility in Theory and Practice,”Modern Law Review, 27(1):9 (Jan. 1964).
17.
17. Times, 26 Jan. 1843.
18.
18. Stephen White, “Phrenology and the McNaughtan Rules,”Criminal Law Journal, 8(3):166 (1984) and references cited therein.
19.
19. Walker, Crime and Insanity in England, vol. 1, The Historical Perspective, pp. 105-107; Royal Commission on Capital Punishment, Report, pp. 399-402.
20.
20. True, (1922) 16 Crim. App. R. 164.
21.
21. Committee on Insanity and Crime, Report.
22.
22. “ `Irresistible Impulse,' ”Australian Law Journal, 10(8):130 (Aug. 1936).
23.
23. Sodeman, [1936] 2 All E. R. 1138.
24.
24. Royal Commission on Capital Punishment 1949-1953, Report, paras. 256-333.
25.
25. Attorney-General for Northern Ireland v. Gallagher, [1963] A.C. 349.
26.
26. There is some dispute about this, but I believe the view stated here to be the better one.
27.
and ibid., p. 258 (May 1967).
28.
and J. L. Mackie, “The Grounds of Responsibility,” in Law, Morality and Society: Essays in Honour of H.L.A. Hart, ed. P.M.S. Hacker and J. Raz (Oxford: Oxford University Press, 1977), pp. 175-188.
29.
29. Hill v. Baxter, [1958] 1 Q.B. 277.
30.
30. Charlson, (1955) 39 Crim. App. R. 37.
31.
31. Kemp, [1957] 1 Q.B. 399.
32.
32. Felstead, [1914] A.C. 534; Duke, [1963] 1 Q.B. 120.
33.
and ibid., p. 243 (Mar. 1964).
34.
34. Criminal Law Revision Committee on Criminal Procedure (Insanity), Third Report.
35.
But they do apparently seek to show that those pleading insanity are of diminished responsibility; see Royse, (1981) 3 Crim. App. R. (S.) 58.
36.
36. Bratty v. Attorney-General of Northern Ireland, [1963] A.C. 386.
37.
37. I. D. Elliott, “Automatism and Trial by Jury,”Melbourne University Law Review, 6(1):53 (1967).
38.
38. Byrne, [1960] 2 Q.B. 219.
39.
39. Susanne Dell, “Diminished Responsibility Reconsidered,”Criminal Law Review, p. 809 (Dec. 1982).
40.
40. Bratty v. Attorney-General of Northern Ireland, [1963] A.C. 386.
41.
41. Clarke, [1972] 1 All E.R. 219; one wonders if this is the reason for the special verdicts returned since 1971 in respect of two shoplifters, one thief, and one embezzler unless the explanation is that it is indeed madness to plead insanity to any offense other than murder!
42.
42. Quick and Paddison, [1973] Q.B. 910; see too Bailey, [1983] 2 A 11 E.R. 503, as a result of which there are now conflicting Court of Appeal decisions about whether mental malfunctioning due to diabetes is a disease of the mind.
43.
43. Sullivan, [1983] 1 A.C. 165.
44.
44. Royal Commission on Capital Punishment 1949-1953, Report.
45.
45. Committee on Mentally Abnormal Offenders, Report, Cmnd. 6244 (1975).
46.
46. The current act is the Mental Health Act 1983. When the Butler Committee reported, the act in force was the Mental Health Act 1959. The 1959 act was amended in 1982, and the law was consolidated in the 1983 act.
47.
47. The committee suggested changing this to “personality disorder.”
48.
48. Committee on Mentally Abnornal Offenders, Report, p. 272.
49.
49. A. J. Ashworth, “The Butler Committee and Criminal Responsibility,”Criminal Law Review, p. 687 (Dec. 1975).
50.
50. “Subnormality” and “severe subnormality” were the terms used in the 1959 act. They have been replaced by “mental impairment” and “severe mental impairment.”
51.
51. Committee Appointed by the Secretary of State for Scotland and the Lord Advocate, The Penalties for Homicide: Report, Cmnd. 5137 (1972); Criminal Law Revision Committee—Penalty for Murder, Twelfth Report, Cmnd. 5184 (1973); Advisory Council on the Penal System, Sentences of Imprisonment: A Review of Maximum Penalties (London: Her Majesty's Stationery Office, 1978); Criminal Law Revision Committee, Fourteenth Report: Offences against the Person, Cmnd. 7844 (1980).
52.
The criteria for determining the length of a prison term in such cases have been considered by the Court of Appeal in Chambers, [1983] Crim. L.R. 688.
53.
53. Susanne Dell, The Transfer of Special Hospital Patients to National Health Service Hospitals (London: Special Hospitals Research Unit, 1980); Larry Gostin, A Human Condition (London: Mind, 1977), 2:49-51. In 1980 the Court of Appeal held that a special-hospital patient did not need the leave of the court to sue members of COHSE—a health service union—who were blocking his transfer to an ordinary hospital. The House of Lords refused COHSE leave to appeal against this decision; see Ashingdane v. Secretary of State for Social Services, 130 New L. J. 509 (1980); Times, 19 Feb. 1980; ibid.; 8 May 1980. In 1982 the European Commission on Human Rights accepted the same patient's complaint against the legislation that prevented his suit against the minister of social services and the Area Health Authority, and the legislation was changed; see Times, 16 Feb. 1982, and Mental Health (Amendment) Act, 1982, 30 & 31 Eliz. 2, c. 51, §60. More recently still, the Court of Appeal has warned nursing staff in ordinary hospitals that they may be liable for contempt of court if they put pressure on consultants to recommend against the making of hospital orders; see Harding, reported in the Times, 15 June 1983.
54.
54. Criminal Law Revision Committee, Fourteenth Report: Offences against the Person.
