Abolishing the Insanity Verdict in England and Wales: A Better Balance Between Legal Rules and Scientific Understanding?

One of the most problematic relationships between neuroscience and the law is the politicised area of claims of insanity. The relationship between medical science and the law has defined and shaped the insanity defence. The issue that reformers have had to grapple with since the inception of the modern defence of insanity is the public perception of the insanity plea. In 2012-2013 the Law Commission for England and Wales, much to its credit, undertook a thorough review of the defences of insanity and automatism. This culminated in the publication of a Discussion Paper entitled Criminal Liability: Insanity and Automatism. Preceding this document, a Scoping Paper and supporting Supplementary Material had been published. The law's effect is described in the Supplementary Material as attributing a label that is inaccurate, unfair and stigmatising. Perhaps another flaw identified is the most concerning: [T]he defence does not fairly identify those who ought not to be held criminally responsible as a result of their mental condition, and so some of those vulnerable people remain in the penal system, to their detriment, and to the detriment of society at large. In its discussion of how the criminal law with regard to the general defence of insanity should be reformed, the Law Commission identifies several issues which contribute to the underuse of the defence of insanity. One is the problematic distinction which was confirmed in R v Quick between sane and insane automatism. This distinction is based upon the identified legal cause of the automatism claim. If the cause is identified as being external to the accused the appropriate plea is sane automatism whereas, if the legal cause is deemed to be internal, the plea is insane automatism. This distinction has both theoretical and practical flaws. The distinction also creates real problems with the sentencing of those who are deemed insane automatons and yet may not suffer from a medically accepted mental disorder. Another issue, a contributory factor int he under use of the defence, is said to be the nature of the M'Naghten Rules themselves and how they are applied. In reviewing the law and how it should be reformed the Law Commission only briefly touched upon the possible implications of growing scientific understanding of the brain for the reformed defence. The first part of this chapter will explore how the M'Naghten Rules have reached a point where they are viewed as complex and far removed from a modern medical perspective of mental disorder. It will also trace the difficult politico-legal environment in which the defence developed. The proposals put forward in the Law Commission's Discussion Paper will be reviewed. Finally, the chapter will consider whether the Law Commission has achieved in its conclusions and proposals the objective that it set out in the Supplementary Material to the Scoping Paper: We believe it is important as a matter of principle that criminal responsibility should be correctly ascribed. Doing so, through operation of the law, reflects society's judgment and attribution of blame. It is not just a matter of accurately communicating by means of a verdict what conclusion a court has reached about a person's culpability (what is described as fair labelling), though that is important too.