Defense of Insanity in Ireland: Present Law and its Application to Psychopaths

By Tatiana V. Kelly
2012, Vol. 4 No. 06 | pg. 3/3 |

Moral Panics

The public strongly believe that the defence of insanity is overused.48 Empirical research conducted by Silver, Carmen and Steadman showed that the public is deeply skeptical about the insanity defence. But more importantly it showed a great discrepancy between public perception, surrounding the defence, and actual statistics. The researchers provided a useful example where for every 1,000 felony cases, the public would estimate 370 insanity pleas of which 163 would be successful when, based on research, there were 9 insanity pleas for every 1,000 felony cases of which only about 2 would be successful.49

Another study, carried out by Fazel and Grann found that in cases of murder and attempted murder, only 18% were committed by people with mental illness. Dr. Seena Fazel, the forensic psychiatrist who led the research, concluded that the figure of one in 20 is probably lower than most people would imagine.50

It was further noted by Silver51 and other academics that the media, in feeding the public’s fear, has a further influence on such distorted public perceptions, which in turn is reflected in negativity towards the insanity defence.52

Further research conducted in United States further proved a discrepancy in public belief about the average length of hospitalization and the actual statistics. While public believed that the average length of confinement was 21, the statistic showed that it was 76 months.53 There is no similar statistics for Ireland; however, by looking at the substantial increase in the duration of life sentences in the past 20 years,54 it is likely that this trend also apply to the hospitalization.

In spite of all media hype, the defence of insanity is rarely used because it is very hard to plea, particularly when the psychiatrists are precluded from defining a personality disorder as a mental illness, prosecution is presenting the jury with gruesome descriptions of the victim and jury has a near-primal fear of people who are mentally ill and dangerous. Furthermore, some of the accused chose a guilty plea just because they do not view themselves or do not want to be viewed by the society as mentally ill. The societal awareness on this issue in needed.

Conclusion

The current law on the defence of insanity, while reforming the procedural aspects of the trial, detention and release and introducing the defence of diminished responsibility, continues to rely heavily on the common law in many aspects. The ill-defined term of “mental disorder” continues to cause much confusion in the legal world, particularly in light of modern developments in psychiatry, which do not have a great weight in law. Strong reliance on the Mental Health Act, while at the same time distinguishing two acts on the criminal and civil basis calls for either the unification of the definitions and procedures or a separate written acknowledgment of their distinction.

The initial broad legislative definition on the defence of insanity and diminished responsibility left many gaps in the sentencing of people with personality disorders. Many other jurisdictions adopted at least some clear approach to this category of perpetrator by excluding their condition under the defence of insanity.55 No such measures have been adapted to date in Ireland. By denying the defence of insanity to people with personality disorders, and substituting it with the option of defence of diminished responsibility, can be viewed as a reinstatement of the fact that control model is becoming more influential in Ireland.

Despite some subjective elements which are incorporated in Section 5, the current law applies objective standards to the defence of insanity. If the mental illness of the accused at the time of the crime or the trial does not come within the legal frame, the motivation for the crime and circumstances of the case become irrelevant. Having relied so heavily on legal objective definition as to who is “mad” and who is “inherently bad”, this approach is doing more harm than good. It streams people with personality disorders in a wrong direction. Those, who might choose to plea insanity because of their mental condition and therefore to seek a required treatment in a hope of achieving a fresh start, are only left with an option, in cases of murder, of raising the defence of diminished responsibility and being incarcerated with no treatment at all, often leaving the prison in a worse condition, which could potentially increase the rates of recidivism.

Some may suggest that the defense of diminished responsibility is easier to claim and, as a result, it is often used in murder trials. This may certainly be the case. However, the initial question remains the same: despite the greater success of raising this defence, does it remain the right option for many people with personality disorders?


References

Books

Ashworth A, Principles of Criminal Law (6th edn, Oxford University Press 2009)

Blair J, Mitchell D, Blair K, The Psychopath: Emotion and the Brain (Blackwell 2005)

Campbell L, Kilcommins S, O’Sullivan C, Criminal Law in Ireland: Cases and Materials (Clarus Press 2010)

Cawthorne N, The World’s Greatest Serial Killers (Chancellor Press 2011)

Charleton P, McDermott P, Bolger M, Criminal Law (Tottel 2006)

Clarkson C, Keating H, Cunningham S, Clarkson and Keating Criminal Law: Text and Materials (7th edn, Sweet and Maxwell 2010)

Clyne P, Guilty but Insane: Anglo-American Attitudes to Insanity and Criminal Guilt (Nelson 1973)

Jewkes Y, Media and Crime (Sage 2004)

Hamilton C, The Presumption of Innocence and Irish Criminal Law (Irish Academic Press 2007)

Hanly C, An Introduction to Irish Criminal Law (2nd edn, Gill and Macmillan 2006)

Healey T, The World’s Greatest Crimes of Passion (Hamlyn 2010)

Kennedy H, The Annotated Mental Health Acts (Blackhall 2007)

Kilcommins S, O’Donnell I, O’Sullivan E, Vaughan B, Crime, Punishment and the Search for Order in Ireland (Institute of Public Administration 2004)

Krauss D, Lieberman J, Psychological Expertise in Court: Psychology in the Courtroom Vol II (Ashgate 2009)

Mackay R, Mental Condition Defences in the Criminal Law (Clarendon Press 1995)

McAuley F, McCutcheon J, Criminal Liability (Round Hall Sweet and Maxwell 2000)

McAuley F, Insanity, Psychiatry and Criminal Responsibility (Round Hall 1993)

McIntyre T, Spencer K, Whelan D, Criminal Legislation Annotated 2006-2007 (Thomson Round Hall 2008)

Ormerod D, Smith and Hogan’s Criminal Law (13th edn, Oxford Press 2011)

Robinson D, Wild Beasts and Idle Humours – The Insanity Defence from Antiquity to the Present (Harvard University Press 1998)

Rogan M, Prison Policy in Ireland: Politics, Penal-Welfarism and Political Imprisonment (Routledge 2011)

Whelan D, “The Criminal Law (Insanity) Act 2006” Irish Current Law Statutes Annotated (2006)

Articles:

Duff A, “Psychopathy and moral understanding” (1977) 14 (3) American Philosophical Quarterly 189-200

Duggan D, “Diminished Responsibility and the Insanity Defence” (2006) 12(6) Bar Review 248-252

Fazel S, Grann M,”Psychiatric Morbidity Among Homicide Offenders: A Swedish Population Study” (2004) 161(11) American Journal of Psychiatry 2129-2131

Griffin D, O’Donnell I, “The Life Sentence and Parole” (2012) 1 British Journal of Criminology 1-19

Hare R, “The Hare PCL-R: Some Issues Concerning its Use and Misuse” (1998) 3 Legal and Criminological Psychology 101-122

Kelly B, “Criminal Insanity in the 19th-century Ireland, Europe and the United States: Cases, Contexts and Controversies” (2009) 32(6) International Journal of Law and Psychiatry 362-368

Kennefick L, “Diminished Responsibility in Ireland: Historical Reflections on the Doctrine and Present Day Analysis of the Law” (2011) 62(3) Northern Ireland Law Quarterly 269-289

Lacey N, “Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility” (2010) 4 Journal of Criminal Law and Philosophy 109-133

Loughnan A, “Manifest Madness: Towards a New Understanding of the Insanity Defence” (2007) 70(3) The Modern Law Review 379-401

Mackay R, Reuber M, “Epilepsy and the Defense of Insanity: Time for Change,” (2007) Criminal Law Review 782-793

McGillicuddy T, “The Criminal Law (Insanity) Act 2006” (2006) 11(3) Bar Review 95-99

Munnelly N, “Diminished Responsibility and Sentencing Provisions” (2011) 16(1) Bar Review 18-20

Perlin M, “The Borderline Which Separated You From Me: The Insanity Defence, the Authoritarian Spirit, the Fear of Faking, and the of Punishment” (1997) 82 Iowa Law Review 1375-1380

Ramage S, “Peter Young’s Insanity Plea: A Retrospective Examination of the Verdict of “Not Guilty on the Grounds of Insanity” (2008) 183 Criminal Lawyer 1-6

Reid W, “The Insanity Defence: Bad or Mad or Both?” (2000) 5 Journal of Psychiatric Practice 169-172

Shaw E, “Psychopaths and Criminal Responsibility” (2009) 13(3) Edinburgh Law Review 497-502

Silver E, Cirincione C, Steadman H, “Demythologizing Inaccurate Perceptions of the Insanity Defence” (1994) 18(1) Law and Human Behaviour 63-70

Simons C, “Antisocial Personality Disorder in Serial Killers: The Thrill of the Kill” (2001) 14(4) The Justis Professional 345-356

Slobogin C, “An End to Insanity: Recasting the Role of Mental Illness in Criminal Cases” (2000) 86 Virginia Law Review 1199-1247

Thomson D, “Manuel, Psychopathy and Risk Assessment” (2009) 5 Scottish Law Review 457-468

Irish Legislation:

Criminal Law (Insanity) Act 2006

Criminal Law (Insanity) Act 2010

Mental Health Act 2001

Irish Case Law:

Doyle v Wicklow County Council [1974] IR 55

JB v Mental Health (Criminal Law) Review Board & Org [2008] IEHC 303

People (AG) v Fennell (No 1) [1940] IR 445

People (DPP) v Courtney (CCA, 21 July 1994)

People (DPP) v Crowe [2009] 2 ILRM 225

People (DPP) v Mulder [2009] IECCA 45

People (DPP) v O’Mahony [1985] IR 517

People (DPP) v Redmond [2006] ILRM 182

People (DPP) v Reilly [2005] 3 IR 111

People (DPP) v Smyth [2011] 1 ILRM 81

People (DPP) v WB [2011] IECCC 1

Irish Reports:

Irish Penal Reform Trust, Out Off Mind, Out Of Sight: Community Solutions to the Criminalisation of the Mentally Ill Prisoners (2001)

UK Legislation:

Criminal Procedure (Insanity) Act 1964

Criminal Procedure (Insanity and Unfitness to Plea) Act 1991

Homicide Act 1957

UK Case Law:

R v Barry [2010] 2 All ER 1004

R v Bratty [1963] AC 386

R v Codѐre (1916) 12 Cr App R 21

R v Davis [1881] 14 Cox CC 563

R v Dietschmann [2003] UKHL 10

R v Dowds [2012] EWCA Crim 281

R v Johnson [2007] EWCA Crim 1978

R v Khan [2010] Crim LR 136

R v Kemp [1957] 1 QB 399

R v Sullivan [1983] 2 All ER 673

R v Windle [1952] 2 QB 826

R v Young [2002] EWHC 548

Other Case Law:

R v Creighton [1909] 14 CCC 249 (Canada)

Winterwerp v The Netherlands (1979) 2EHRR 397

Other Legislation:

Criminal Code of Russian Federation 1996

Online Articles:

Allyson G, “Reforming the Insanity Defence: The Need for a Psychological Defect Plea” (2010) 2(10) Student Pulse accessed 23 February 2012

Other Online Sources:

Federal Bureau of Investigation, BAU “Serial Murder: Multi-Disciplinary Perspectives for Investigators" http://www.fbi.gov/stats-services/publications/serial-murder› accessed 27 February 2012

The Mental Health Research Center of the Russian Academy of Medical Sciences, “Forensic-Psychiatric Examination in the Criminal Process and Prevention of Socially Dangerous Actions of Mentally Ill” ‹http://www.psychiatry.ru/lib/53/book/28/chapter/114› accessed 21 January 2012

Criminal Code of the Russian Federation 1996 ‹http://legislationline.org/documents/section/criminal-codes› accessed 28 January 2012

The Crown Prosecution Service, “Prosecution of Offenders with Mental Health Problems or Learning Disabilities ‹http://www.cps.gov.uk/publications/research/offenders_with_mental_health_problems.html› accessed 29 February 2012


1.) Shane Kilcommins, Ian O’Donnell, Eoin O’Sullivan, Barry Vaughan, Crime, Punishment and the Search for Order in Ireland (IPA 2004) Ch 2.

2.) Christopher Slobogin, “An End to Insanity: Recasting the Role of mental Illness in Criminal Cases” (2000) 86 Virginia LR 1199-1247, 1202.

3.) Sally Ramage, “Peter Young’s Insanity Plea: A Retrospective Examination of the Verdict of “Not Guilty on the Grounds of Insanity” (2008) 183 Crim Law 1-6 at 1; R v Young [2002] EWHC 548.

4.) David Ormerod, Smith and Hogan’s Criminal Law (13th edn, Oxford University Press 2011) 287.

5.) Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Clarus Press 2010) 993.

6.) R v Kemp [1957] 1 QB 399.

7.) [1983] 2 All ER 673.

8.) Darius Whelan, “The Criminal Law (Insanity) Act 2006” Irish Current Law Statutes Annotated (2006), 2.

9.) [1985] IR 517 at 522.

10.) Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Criminal Law in Ireland: Cases and Materials (Clarus Press 2010) 994.

11.) Bratty v Attorney General for Northern Ireland [1963] AC 386; R v Sullivan [1983] 2 All ER 673.

12.) Finbarr McAuley, Insanity, Psychiatry and Criminal Responsibility (Round Hall 1993) 63.

13.) [1983] 2 All ER 673.

14.) People (DPP) v WB [2011] IECCC 1 at 7.

15.) R v Davis [1881] 14 Cox CC 563 at 564; R v Dietschmann [2003] UKHL 10; R v Barry [2010] 2 All ER 1004; R v Dowds [2012] EWCA Crim 281.

16.) [2009] 2 ILRM 225.

17.) Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Clarus Press 2010) 993.

18.) Criminal Law (Insanity) Act 2006, S 5(1) (b) (i)-(iii).

19.) R v Codѐre (1916) 12 Cr App R 21.

20.) Andrew Ashworth, Principles of Criminal Law (6th edn, Oxford University Press 2009).

21.) Ronnie Mackay and Markus Reuber, “Epilepsy and the Defense of Insanity: Time for Change,” (2007) Crim LR 782-793.

22.) [1952] 2 QB 826.

23.) [2007] EWCA Crim 1978.

24.) Peter Charleton, Paul A McDermott, Margueritte Bolger, Criminal Law (Tottel 2006); Conor Hanly, An Introduction to Irish Criminal Law (2nd edn, Gill & Macmillan 2006).

25.) Criminal Law (Insanity) Act 2006, S 5(1) (b) (iii).

26.) [1974] IR 55.

27.) (CCA 21 July 1994).

28.) Liz Campbell, Shane Kilcommins, Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Clarus Press 2010) 1001.

29.) [1909] 14 CCC 249 (Canada).

30.) Criminal Law (Insanity) Act 2006, S 5(1).

31.) Jonathan Herring, Criminal Law (7th edn, Palgrave Macmillan 2011) 261.

32.) Diane Duggan, “Diminished Responsibility and the Insanity Defence” (2006) 12(6) Bar Review 248-252,252.

33.) (1979) 2 EHRR 397.

34.) Mary Rogan, Prison Policy in Ireland: Politics, Penal-Welfarism and Political Imprisonment (Routledge 2011) 118.

35.) [2011] IECCC 1 at 7.

36.) People (DPP) v WB [2011] IECCC 1 at 9.

37.) Gay Allyson, “Reforming the Insanity Defence: The Need for a Psychological Defect Plea” (2010) 2(10) Student Pulse accessed 23 February 2012.

38.) Daniel Krauss, Joel Lieberman, Psychological Expertise in Court: Psychology in the Courtroom Vol II (Ashgate 2009).

39.) Cassandra Simons, “Antisocial Personality Disorder in Serial Killers: The Thrill of the Kill” (2001) 14(4) Jus Prof 345-356.

40.) James Blair, Derek Mitchell, Karina Blair, The Psychopaths: Emotions and the Brain (Blackwell 2005) 57-59.

41.) Federal Bureau of Investigation, “Serial Murder: Multi-Disciplinary Perspectives for Investigators “at 18

‹ http://www.fbi.gov/stats-services/publications/serial-murder› accessed 27 February 2012.

42.) Some psychiatric literature suggests that psychopathy can impair cognitive ability. See Antony Duff, “Psychopathy and Moral Understanding” (1977) 14 (3) Am Phil Q 189-200.

43.) People (DPP) v Crowe [2009] 2 ILRM 225.

44.) Irish Penal Reform Trust, Out Off Mind, Out Of Sight: Community Solutions to the Criminalisation of the Mentally Ill Prisoners (2001).

45.) People (DPP) v WB [2011] IECCC 1 at 9.

46.) Criminal Law (Insanity) Act 2006, S 5 (1) (b) (iii).

47.) Darius Whelan, “The Criminal Law (Insanity) Act 2006” Irish Current Law Statutes Annotated (2006), 2.

48.) Michael L Perlin, “The Borderline Which Separated You From Me: The Insanity Defence, the Authoritarian Spirit, the Fear of Faking, and the Culture of Punishment” (1996-1997) 82 Iowa L Rev 1375.

49.) Eric Silver, Carmen Cirincione, Henry J Steadman, “Demythologizing Inaccurate Perceptions of the Insanity Defence” (1994) 18(1) Law & Hum Behav 63-70 at 67.

50.) Seena Fazel, Martin Grann,”Psychiatric Morbidity Among Homicide Offenders: A Swedish Population Study” (2004) 161(11) Am J Psychiatry 2129-2131 at 2131.

51.) Eric Silver, Carmen Cirincione, Henry J Steadman, “Demythologizing Inaccurate Perceptions of the Insanity Defence” (1994) 18(1) Law & Hum Behav 63-70 at 68.

52.) Yvonne Jewkes, Media and Crime (Sage 2004).

53.) Eric Silver, Carmen Cirincione, Henry J Steadman, “Demythologizing Inaccurate Perceptions of the Insanity Defense” (1994) 18(1) Law & Hum Behav 63-70 at 67.

54.) Diarmuid Griffin, Ian O’Donnell, “The Life Sentence and Parole” (2012) 1 Bit J Criminol 1-19 at 3.

55.) Criminal Justice and Licensing (Scotland) Act 2010, Section 168. Psychopathy is excluded from mental non-responsibility.

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