Dissertation title

Lack of Responsibility by Reason of Stigma and Inaccuracy; The Treatment of Mental Health in Criminal Justice

Research Proposal

Reason for selecting research topic and question:

There is a long-running joke that pleading insanity is an “easy way out” of criminal prosecutions; however, as I soon discovered this is far from the truth and in reality the law around mental health is archaic, superstitious and rooted in ideas which have long since fallen out of practice with modern medicine and psychiatry.

It soon became apparent from my early reading that the issues of mental health in the criminal law are both broad and endemic, with critiques of fitness to plead[1], classification[2], post-classification incarceration, treatment against punishment[3] and use as a defence[4] all attracting large volumes of legal analysis from wide range of sources demonstrating the unfitness and stigmatising nature of the current law. From this I chose to focus my dissertation on the most eminent of the recent critiques, that of the Law Commission Discussion Paper, Criminal Liability: Insanity and Automatism. Even this was not specific enough as the law commission report covers three substantial topics[5] in over two hundred pages. Through reading and analysis of this report I then chose to narrow my topic even further, focusing on the insanity defence as my main area of reform and the Commission’s proposed defence of Not Guilty by Reason of a Medical Condition as the primary alternative to be assessed. The Commission, through its research, chose to focus on Fitness to Plead as the more practical issue according to legal practitioners, however, I felt that from a more theoretical stance the Insanity defence represents the cornerstone of treatment of mental health in the criminal justice system.

There are numerous issues the insanity defence faces in the modern law, making it inaccurate, stigmatising and unfit for purpose: Firstly the term “insanity”, and indeed the general terms used by the criminal law are incredibly stigmatising and have no basis in medical categorisation of disorders[6], with the Mental Health Act[7] using criminalised terms such as “abnormally aggressive”[8] and “seriously irresponsible conduct”[9] rather than medical terminology in assessing the defence. Secondly, the statute around mental health in law[10] is incredibly outdated and inaccurate from a socio-legal point of view, with substantial amounts of legislation dating from the 1960s and 1980s when mental health was viewed more in terms of the “criminal lunatic”[11] rather than an illness which requires medical treatment. Despite numerous attempts, though, change has been laborious and lacking in both scope and depth, at least in part due to the lack of “glamour” and the high risks these changes engender to governments which have increasingly focused on tougher crime and social welfare policies.

To conclude, the juxtaposition between the almost intrinsic link between mental health and criminal justice and its apparent lack of attention and detailed assessment within the law has been the driving factor behind my motivation to research this topic. It seems incredible, particularly considering how mental health has advanced in recent years, for the criminal law to still be using methodology and terminology rooted in the mid-late 20th Century. Particularly, this is at odds with most other minority groups which have benefitted hugely in recent years from equality legislation. From this I intend to determine whether or not the Law Commission’s proposals will be the trigger factor required to modernise and update mental health law, bringing it in line with the thinking of the 21st Century.

Research question

To What Extent Does the Law Commission’s Proposed Defence of Not Guilty by Reason of a Medical Condition Adequately Resolve the Issues of Inaccuracy and Stigmatisation Associated with the Current Defence of Insanity?

Principal issues (or sub-questions) which this question raises and brief description of the substantive content:

Chapter 1: What are the Current Issues within the Law on the Defence of Insanity and how do these lead to Inaccuracy and Stigmatisation?

This chapter will introduce the issues which the defence of insanity suffers from, and how these lead to stigmatisation and inaccuracy. The main areas to be covered within this are: The inaccuracy of the terminology used by the criminal law in relation to mental health, in particular the refusal of the criminal law to adopt medical methodology and terminology on the subject of mental health; the stigmatisation amongst the press and popular culture of mental health within the criminal law as an easy way to explain why crime happens by making those with mental health disorders appear less than human and thus easier to rationalise their actions; finally, whether the simplicity of the insanity defence undermines the breadth of mental health disorders, particularly when considering how much understanding of these has advanced in recent years, and whether or not this has led to significant inaccuracy in both terminology and appropriate reaction by the criminal law.

Chapter 2: How has the Historic Development of Mental Health’s Role within Criminal Justice Contributed to Inaccuracy and Stigmatisation within the Modern Defence of Insanity?

It is clear that the development of mental health law has been at best sporadic and at worst non-existent. Considering how much understanding and attitudes have changed it is unfathomable why statute from the 19th century still forms key parts of the criminal law’s approach towards the insanity defence. Even the more modern law on Insanity is still rooted in the 1980’s, when attitudes were only just beginning to change. This chapter will address how the history of mental health in the criminal law has shaped its treatment and whether or not this process has led to it becoming outdated.

Chapter 3: Critical Analysis of the Proposed Defence of Not Guilty by Reason of a Medical Condition

In my third chapter the Law Commission’s Proposals will be examined in detail and assessed with regards to whether or not they create a suitable system which will combat both issues of inaccuracy and stigmatisation. It will be seen that whilst the Commission’s proposals are highly significant and represent a positive shift in the attitudes of the criminal justice system in some ways they do not go far enough and require greater depth and more wide reaching reform in order to combat inaccuracy and stigmatisation more fully, particularly in less serious cases of mental health disorder where the disorder should be seen as a contributory factor which mitigates some guilt and requires treatment which the commission’s proposals do not address fully.

Chapter 4: Are there any Alternative Proposals or Modifications to the Commission’s Proposals which may be more suitable?

This chapter will develop on the ideas of chapter three to elaborate on the shortcomings of the Law Commission’s proposals. Further to this, alternative proposals for reform of the insanity defence from a number of academics and the Scottish Law Commission’s proposals will be assessed in order to determine whether or not alternative solutions should be considered, in part or in full, and whether or not they provide more extensive protection against inaccuracy and stigma.

Chapter 5: What Does the Future Hold for Mental Health Within the Criminal Justice System?

In this chapter I intend to present my findings from interviews with students and academics with practising experience in the Law and Psychology departments in order to determine whether or not there is disparity between the disciplines of law and psychology on the subject of treatment of mental health in criminal justice. If there is not I will aim to determine what has changed in order to solve the previous mistrust between these two fields, if there is I will focus on what factors are causing this lack of cooperation to continue and if they will ever be reconcilable.

Description of the proposed methods:

As the subject of my dissertation involves analysis of a specific proposed change to the law the bulk of my research will be doctrinal in nature, looking at different interpretations, analyses and suggestions in order to analyse the most viable approach to the problem of inaccuracy and stigma against mental health in the criminal justice system. Within this there will be a variety of sources used; primary sources in the form of cases will be crucial in demonstrating the current functionality of the law on the insanity defence, whilst secondary sources such as books and journal articles will provide the necessary analytical approach required to fully assess the viability of the Law Commission’s proposed changes.

In the latter half of my dissertation more alternative methods will be used. Comparative study of the proposals from the Scottish Law Commission will be used as one of the cornerstones of my fourth chapter and will provide an added critical element when judging the viability of the Law Commission’s proposals. Similarly, an empirical and qualitative analysis of current staff and students at the university will demonstrate whether or not there is indeed a shift occurring in the attitudes towards mental health in the law and what direction that shift is headed in.

Does this proposal give rise to any ethical questions: YES

If yes, set out how you intend to address these.

I intend to use qualitative interviews of some depth for the final chapter of my dissertation. These will be used to analyse whether an increased focus on mental health in criminal law translates to a shift in attitude amongst those in the relevant fields, particularly the psychologists and lawyers of the future.

Annotated bibliography of sources (max 10 sources)

1)      The Law Commission, Criminal Liability: Insanity and Automatism Discussion Paper 2013

As the source of the recommendations featured in the title of my dissertation this piece will be a key feature of my dissertation. The Law Commission rightly identified in 2013 that the law relating to mental health as a defence in criminal law was deeply misconceived and not fit for purpose, giving rise to fundamentally incorrect and often stigmatising judgements in court. The proposed solution to this was to rework the defence of Insanity around a new defence of not guilty by reason of a medical condition. As the most eminent current solution to inaccuracy and stigmatisation in the insanity defence this will be a crucial element of my dissertation, however, this will by no means lead to it being accepted on face value and I will be critically and extensively examining the Law Commission’s proposals.

2)      Loic Wacquant, Punishing the Poor, Duke University Press, Durham and London 2009

Though Wacquant’s style is often elaborate, poetic and tends towards the theatrical he makes deep and eloquent criticism of the conceptions of law and its perceived purpose. Of particular use to my dissertation are his comments on the nature of criminality and criminalisation, both of activities and of individuals, which he argues are influenced far more by bureaucracy and sensationalist media and politicians rather than the true purposes of detention such as punishment and rehabilitation.

3)      Norval Morris, Madness and the Criminal Law, The University of Chicago Press 1982

Though Morris’ overall prerogative is an argument against the appropriateness of the insanity defence and the plea of incompetency to stand trial his method is both highly unorthodox and highly effective, illustrating his arguments through powerful pieces of literature by Eric Blair (George Orwell). It is unclear if these works are Orwell’s or of Morris’ own design but their effect is incredibly tangible, grounding the arguments of the insanity defence in scenarios which poignantly illustrate both how attitudes towards mental health have developed and, conversely, despite these developments how truly challenging it is to develop coherent and working strategies to address mental health’s place in the criminal justice system which transcend temporal considerations.

4)      Martha C. Nussbaum, Hiding from Humanity, Disgust, Shame and the Law, Princeton University Press 2004

Nussbaum’s work focuses on the purpose behind criminal sanctions, engendering deep and insightful discussion into why criminals are imprisoned. Her work provides an analytical, political slant on my topic, and will lead to discussion of the purpose behind the insanity defence, in particular how that purpose needs to change with the ever increasing understanding of mental health in the modern day. One of Nussbaum’s key arguments is that our world is designed for the average person, the man atop the Clapham Omnibus, and the criminal law is no exception. Nussbaum roots this concept in political theory by looking at Locke’s Social Contract theory, providing a novel and critical insight on one of the cornerstones of democracy which is almost incompatible with the idea of mental health. Nussbaum’s work will provide an anchor of political theory for my dissertation which will combine well with the more historic elements in order to thoroughly assess the root of the insanity defence in order to determine if it is wrong on a fundamental level.

5)      Ashworth & Horder, Principles of the Criminal Law Seventh Edition, Oxford University Press 2013

Ashworth’s Principles of the Criminal Law is a staple of study into the criminal justice system and will play a key role in anchoring my dissertation to legal theory and the reasons for the criminal justice system taking on the format it does today. Of particular use will be comparative study of other defences to demonstrate the unique and sometimes deficient nature of the defence of insanity.

6)      Michel Foucault, Discipline and Punish: The Birth of Prison, Vintage Books, A Division of Random House Inc, New York 1995

As one of the most eminent mid-late 20th Century writers on both mental health and criminal justice Foucault’s work and discussions will be of great use to the theoretical background of my dissertation. In particular, the critical assessment of European judicial history provided in Discipline and Punish, combined with Foucault’s previous knowledge and experience of writing about mental health, makes this source an insightful and critical assessment of the fundamental workings of the criminal justice system.

7)      Mental Health Act 1983

The Mental Health Act 1983 provides the core of the statute used today in approaching mental health in criminal justice including the use of the insanity defence. This act will form the lynchpin of my assessment of the statute surrounding the insanity defence and its provisions. Particularly, despite being amended in 2007 the act itself is still outdated and rooted in a 1980’s approach to mental health.

8)      Birmingham City Council, Mental Health: Working in Partnership with Criminal Justice Agencies, January 2014

This report by Birmingham City Council explores the common instances where mental health enters the criminal justice system in order to attempt to better understand why these occur and to divert these cases away from criminal punishment and towards medical treatment. This piece of work is both useful and insightful as it offers an alternative approach to the insanity defence by looking at the provisions within the criminal justice system available to treat patients from a variety of vulnerable backgrounds in order to effectively rehabilitate them and reduce stigma.

9)      Scottish Law Commission, Report on Insanity and Diminished Responsibility, June 2004

This report provides an alternative approach to the insanity defence from arguably the closest legal system to that of our own. This is highly useful for the more comparative elements of my dissertation in chapters 4 and 5, particularly as the Scottish Law Commission offers a more doctrinal approach focusing on the Mens Rea of a defendant and recommending a defence of lacking responsibility by reason of a mental disorder. Though full assessment of this will occur in the dissertation there can already be seen to be a marked difference in the approaches of the two systems.

10)   R v Burgess 1991 2 QB 92

This is a distinctive case which will be used to analyse the effect of the issues the insanity defence faces in court. This is particularly poignant in this case as the defendant inflicted grievous bodily harm whilst sleepwalking and was treated incredibly poorly by the justice system in place to account for his condition. The defence of automatism was denied to him as insanity was required to play a factor in the ruling and the terms of the judgement were archaic and non-medical, including use of the outdated M’Naghten Rules and the Trial of Lunatics Act 1883. This case will demonstrate in real terms the shockingly outdated and backward systems in place when dealing with mental health.

Initial timetable

 Footnotes

[1] The Law Commission, Unfitness to Plead Consultation Paper, May 2014

[2] The Law Commission, Criminal Liability: Insanity and Automatism Discussion Paper, 2013

[3] Michel Foucault, Discipline and Punish: The Birth of Prison, Vintage Books, A Division of Random House Inc, New York 1995, 22

[4] No 2, Insanity and Automatism Discussion Paper

[5] Insanity, fitness to plead, automatism

[6] Bartlett and Sandland, Mental Health Law Policy and Practice, Oxford University Press 2003, 238

[7] Mental Health Act 1983

[8] No 6,  Mental Health Act

[9] No 6, Mental Health Act

[10] Specifically the Mental Health Act 1983, the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, the Trial of Lunatics Act and the Criminal Procedure (Insanity) Act 1964 and, most surprisingly, the Trial of Lunatics Act 1883

[11] No 5, Mental Health Law Policy and Practice, 237