Evolution of defence of insanity

The defence of insanity, and indeed, the very concept of insanity, differs substantially among jurisdictions. Generally however, it may be said that an individual’s state of mind is important both jurisprudentially and as a determinant of responsibility in any criminal justice system.

The defence of insanity has existed since the twelfth century, but initially it was not considered an argument for the defendant to be found not guilty. Instead, it was a way for a defendant to receive a pardon or a way to mitigate a sentence. The idea that insanity could bar the conviction of a defendant arose in the early nineteenth century in The Medical Jurisprudence of Insanity by an influential scholar named Isaac Ray, as well as in the seminal decision in England called the M'Naghten case.

2.1 PRE-MCNAUGHTON[1]

Today, the defence of insanity is an affirmative defence, this means the defendant must raise the argument that he/she is insane, and if he/she was found insane, it would negate the elements of a crime.  The burden of proof is also on the defendant and the defendant must prove the defence of insanity by “clear and convincing evidence” (Garner, 2001). The defence of insanity has evolved over centuries. It is generally considered immoral to punish a person who is not responsible for their criminal behavior, because if a person does not know what he/she is doing at the time of a crime he/she should not be punished for it. 

In ancient Roman Empire, people who were found non-compos mentis (Latin term without mastery of mind) were not held responsible for their criminal actions. The Roman concept of “mastery of mind” has evolved into the modern concept of mens rea or “guilty mind” which is the component of a crime that looks at a person's state of mind (Borum & Fulero, 1999; Costanzo, 2004).

Before the McNaughton ruling the defence of insanity went through three important phases and was applied through three tests:

·         The “Good And Evil” Test,

·         The “Wild Beast” Test, and then

·         The “Right and Wrong Test”. 

The “good and evil” test first appeared in English cases around the year 1313.  The "good and evil" test found its origins in biblical and religiously concepts.  The insane were thought of as children incapable of “sinning” because they could not choose or distinguish the “good from the evil?” Under this rule, a defendant would be found guilty if they knew the difference between good and evil at the time of the crime.  The “good and evil” test was used from the fourteenth century up to the sixteenth century when it was replaced in 1724 by the “wild beast test” (Blunt & Stock, 1985; Gerald, 1997; Perlin, 1994).

The “wild best test” transformed insanity law and its first found use was in the 1724 in the case of Rex v. Arnold[2].  This case involved a defendant who shot and attempted to kill a British load. The trial judge (Judge Tracy) instructed the jurors to acquit the defendant by reason of insanity if it was found that he was “a man totally deprived of his understanding and memory, and did not know what he was doing, no more than a brute, or a wild beast, such a person could never be the object of punishment.”  However, the “wild best test” is a misnomer; this is a result of the mistranslation of two Latin phrases.  The Latin phrase ‘Brutis’ is simply translated to mean a “brute”. The phrase “wild beast” in 1724 in England referred to farm animals like foxes, deer, and rabbits.  Hence, the phrase wild beast did not literally mean a person who was like a wild beast but rather a person who had the intellectual ability of a farm animal. Judge Tracy’s jury instruction changed the defence of insanity from that of a moral failing (i.e. good versus evil) to a cognitive failing, or in other words a mental defect involving “understanding and memory” (Maeder, 1985; Perlin, 1994). 

A century later, the insanity standard was further refined by the case of Regina v. Oxford[3].  This test was the precursor for the McNaughton rule.  Lord Denman told the jury that they must acquit the defendant by reason of insanity if it was found that he suffered “from the effect of a disease of mind”, and if he was “quite unaware of the nature, character, and consequences of the act he was committing” (Costanzo, 2004; Perlin, 1994).

In Lord Ferrers’ case[4], Earl Ferrers was tried before the House of Lords for the murder of his steward, having deliberately shot him in revenge for some imaginary wrong. In defence he alleged his insanity. The House of Lords had relied on their earlier decision on the fact that if there be thought and design; a faculty to distinguish the nature of actions; to discern the differences between moral good and evil; then, upon the fact of the offence proved, the judgment of the law must take place. The Earl was found guilty by the House of Lords.

In Hadfield case[5], Hadfield was charged for treason in attempting the assassination of King George III. The case was tried before Lord Kenyon. The Attorney General who prosecuted the case, insisted upon the old test namely “the total deprivation of understanding and memory”; but the counsel for the accused insisted that insanity was to be determined by the fact of fixed insane delusions, and that such delusion under which the defendant suffered were the direct cause of his crime. He pointed out that besides persons wholly deprived of their understanding, whether permanently or temporarily which overpowers the faculties of their victims, there were others where the delusions were circumscribed and did not overpower all the intellectual faculties of the sufferers. The eloquence of Erskine was successful in obtaining the verdict of “not guilty” from the jury and the accused was acquitted. Thus, in this case the delusion test was evolved. The former tests regarding the principle of liability were held to be wide.

In Bowler’s case[6], Le Blanc J observed that it was for them to determine whether the accused when he committed the offence was incapable of distinguishing the right from wrong, or was under the influence of any illusion in respect of the prosecutor which rendered his mind at the moment insensible of the nature of the act he was about to commit. This is the first time the test of “distinguishing right from wrong” was formulated by the judge. The accused was convicted and executed.

In Bellingham’s case, accused was charged of murder and a plea of insanity was set up by the accused. Lord Mansfield C.J. who tried the case at the Old Bailey used both the phrases namely, “right or wrong” and “good and evil” synonymously. He observed; 

“The single question was whether when he committed the offence charged upon him , he had  sufficient understanding to distinguish good from evil , right from wrong and that murder was  a crime not only against the law of God but against the law of the country.” Thus it is found that ever since Bowler’s case, the courts had laid more stress on the test of right and wrong   though they had not yet definitely formulated this test in clear terms.

In Daniel Mc’Naughten case, also called M’Naghten, the delusion test formulated in Hadfield’s case and the knowledge of right and wrong test evolved in the latter cases thus afforded two tests for insanity. An advance was made further in the law of insanity in this well-known case of M’Naghten, a Scotsman who in 1843 was tried for the murder of Edward Drummond ,the Private Secretary to Sir Robert Peel, the then Prime Minister of England . Daniel M’Naghten was under an insane delusion that Sir Robert Peel had been persecuting him and mistaking Drummond for Sir Robert Peel, he shot and killed him. He was tried in London before Tindal C.J. and two other judges and was defended by Mr. Cockburn who later on became the Lord Chief Justice of England. The accused pleaded insanity in his defence and the medical evidence produced showed that the prisoner was laboring under a morbid delusion which carried him away beyond the power of his own control. The Chief Justice in his charge to the jury said that the question for them to be determined was whether at the time of committing the act he had or had not used his understanding so as to know that he was violating the laws of God and man. The jury acquitted the prisoner on the ground of insanity.

The trial of M’Naghten and his acquittal caused considerable sensation and was made the subject of debate in the House of Lords. As a result, the House of Lords called on the fifteen judges to lay down a law on the subject of criminal responsibility in cases of alleged lunacy in answer to questions propounded by them. This course appears to have been taken with a view to some legislation then contemplated on which actions seems to have been taken. Fourteen of the judges were united in their answers. Maule J. returned separate answers which, however did not materially differ from his colleagues. The opinion of the majority was delivered by Tindal C.J. These questions and answers are known as the M’Naghten Rules which form the basis of the modern law on insanity.

These Rules can be listed as below:

1. That every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proved to the satisfaction of the jury or the court.

2. To establish defence on ground of insanity it must be clearly shown that at the time of committing the act, the accused was laboring under such a defect of reason or from disease of mind, as not to know the nature and quality of the act he was doing, or he did not know it, that he did not know that what he was doing was wrong.

3. If the accused was conscious, that the act was one which he ought not to do and if that act was at the same time contrary to the law of the land, he would be punishable.

4. A medically qualified person who has not seen the accused before the trial should not         be asked to stand as witness and say whether, on evidence, he thinks that the accused was insane.

5. Where the Criminal act is committed by a man under some insane delusion as to the surrounding facts, which conceals from him the true nature of the act he was doing, he will be under the same degree of responsibility as he would have been on the fact as he imagined them to be.

There are basically four distinctly formulated standards of criminal responsibility used by the courts in cases where the defence of insanity is raised. These are

·         The McNaghten Rules,

·         The Irresistible-Impulse Test,

·         The Durham (Or Product) Rule, And

·         The Test Recommended By the American Law Institute's Model Penal Code.

2.2 THE MCNAGHTEN RULES

In 1843, Daniel McNaghten, a Scot shot Edward Drummond, Principal Secretary to the British Prime Minister Sir Robert Peel, believing that he had killed Peel. Drummond languished and died. M’Naghten had exhibited a previous history of bizarre behavior, and was subject to delusions of persecution and hallucinations. At that time English law was in the process of developing a theory of criminal responsibility for the mentally ill. In a previous case, Regina v. Oxford (1840), where a man with a history of insanity, Edward Oxford had shot at Queen Victoria, the jury was charged in the following terms: 'If some controlling disease was in truth the acting power within the defendant, which he could not resist, then he will not be responsible.' The case of McNaghten was the occasion of the formulation of a rule covering such cases, the issue being at that time quite controversial and causing heated debate, not only in the newspapers, but in the House of Lords and the House of Commons. Accordingly, the fifteen judges of the common law courts were called upon by the House of Lords for information and provided answers to five questions put to them by the Lords. This set of five questions and answers constitutes the McNaghten Rules. The first question asks for the point of law regarding crimes committed by persons with insane delusions. The response was that if the delusion is only partial then the person is punishable if he knew at the time of the act that he was acting contrary to the law of the land. The second and third questions ask in what form the issue should be presented to a jury. The criterion offered in response reads as follows: 'To establish a defence on the grounds of insanity it must be clearly proved that the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong.' Also included in this response are the points that a defendant is to be presumed sane until it is proven otherwise and that knowledge of right and wrong pertains to the specific act in question rather than to knowledge of right and wrong in general. Moreover the clarificatory point is made that actual knowledge of the law of the land is not essential to conviction (such knowledge being generally assumed under the law), so that the operative criterion is whether the defendant 'was conscious that the act was one he ought not to do'. The fourth question is whether a man who commits a crime under an insane delusion is thereby excusable - the reply is that he is to be considered as though the facts with respect to which the delusion exists were real. For example if a man kills another under the delusion that the latter is trying to kill him, he kills 'in supposed self-defence' and is thus excusable. The fifth question concerns the matter of expert (medical) testimony, and the response is that generally the medical expert cannot be asked for his opinion on matters for the jury to decide, even though it may sometimes be convenient to put the question to the expert in the same general form as the question on which the jury is asked to decide.

There is an incredibly voluminous literature criticizing the McNaghten Rules for a great variety of reasons. Many of these emotionally charged criticisms have exhibited the most elementary kinds of misunderstanding of the statements of the chief justices. To clarify some of the chief misunderstandings, a few points should initially be made. First, the Rules are not meant to be of the 'if and only if' type.  That is, the Rules are not, as the historical context of their formulation clearly shows, meant to cover every possible kind of exemption from criminal responsibility related to mental disease. The five questions were specifically addressed to the issue of insane delusions. No mention is made of other exculpatory grounds related to insanity. Second, the operative criteria are expressed in non-technical terms familiar to the layman, inviting broad interpretation. Nowhere is it specified that knowledge of the 'nature and quality of the act' is 'cognitive', or excludes 'emotional' awareness of the nature of the act. Thus a narrow interpretation, restricting such knowledge to 'cognitive' factors, is gratuitous. Third, the medical expert is not required to state his conclusions in terms of 'knowledge of the nature and quality of the act'. On the contrary he is specifically enjoined to eschew this form of conclusion in his testimony. It is, according to the Rules, the function of the jury to rule on this question.

2.3 THE IRRESISTIBLE-IMPULSE TEST[7]

According to the American Bar Foundation Study,' McNaghten is the sole test of criminal responsibility in fewer than half the states, but in at least fifteen states it is accepted in conjunction with the Irresistible-Impulse Test. It is prima facie plausible that a person may lack control over his action because of mental illness even though he knows the nature and quality of that action. Certain schizophrenics, for example, are quite acutely cognizant of what they are doing, having an accurate awareness of the nature of the consequences of their criminal act, and may be perfectly aware of its criminal wrongfulness. Indeed certain persons of this type evidence knowledge of the nature and quality of their act by very deliberate and careful planning. There are many such cases where, despite such knowledge, we want to say that the individual did not have control over his action because he was suffering from acute mental illness of such a nature as to deprive him of free control and hence responsibility. Thus it seems implausible that the McNaghten Rules can cover all cases of lack of capacity due to insanity, and hence they appear to require supplementation by an additional test or rule. The Irresistible-Impulse Rule fills this lacuna. Unfortunately this rule, like the McNaghten Rules, has been the object of an avalanche of hostile criticism, based to a great extent on elementary misunderstandings. First, the term 'irresistible impulse' is an altogether unfortunate one, appearing to require that the crime, to be exculpated, must emanate from some sort of mysterious, interior 'irresistible impulse'. Such impulses, understandably, have proved to be impossible to define or identify. Second, the term 'irresistible impulse' appears to denote an inner, violent, sudden, passionate explosion, and thus appears to be an inappropriate exculpatory ground for crimes that are not sudden but are the result of brooding or reflection. But the latter, as we noted, are the very type of crime that such a rule is needed to cover. Historically a failure to agree on any univocal statement of a control rule of this type has added to the general confusion, with the result that a clear and agreed upon statement of the rule has not emerged. The Report of the Royal Commission on Capital Punishment reflects this ambivalence, discrediting the concept of 'irresistible impulse' while proposing a control rule to supplement the McNaghten Rules. The Commission concludes: 'the concept of the "irresistible impulse" has been largely discredited ... it is inherently inadequate and unsatisfactory.' Yet the Commission recommended (the minority's primary recommendation and the majority's secondary recommendation) that the McNaghten Rules should be supplemented by an alternative clause removing responsibility if the defendant 'was incapable of preventing himself from committing the act'.

It is interesting to compare this position of law with the observations of the Law Commission of India in this regard. The Commission, while revisiting Section 84, concluded unequivocally that an “irresistible impulse” could not find a place in the existing provision since it is not strictly considered “insanity”, and that its inclusion within Section 84 would make the trial of the issue more difficult for the judges. This exclusion may be justified by the use of the term “unsoundness of mind” over “insanity”, and by its emphasis on the capacity to distinguish between legal and illegal actions. However, this does not sufficiently account for variations in volitional capacity, leaving it to be measured and used in absolute terms instead, a stance that is reflective of nineteenth century notions of psychiatry and psychology.

2.4   THE DURHAM RULE[8]

In response to increasing criticism of the McNaghten and Irresistible-Impulse Rules, the Durham Rule was established in the District of Columbia Court by Judge David Bazelon in 1953. The Durham Rule originates, however, with rulings in the New Hampshire Supreme Court affirming the inadequacy of the McNaghten Rules and stating that 'the verdict should be "not guilty by reason of insanity" if the killing was the offspring or product of mental disease in the defendant'. The major impetus to enact the Durham Rule has arisen from problems of expert psychiatric testimony in the courts, the claim being that the outmoded 'moral' terminology of McNaghten inhibited expert witnesses on mental illness for whom the terms 'right and wrong' and other expressions in the McNaghten Rules had no exact scientific meaning. Increasing use of psychiatric experts in cases of the defence of insanity began to create acute problems of courtroom procedure, and according to an increasingly prevailing view, the 'old-fashioned' McNaghten Rules had the detrimental effect of unduly inhibiting and obstructing the optimal use of psychiatric evidence. The emergence of Durham Rule was much heralded as a significant advance. The Rule, as stated by the Committee on Criminal Responsibility of the Bar Association of the District of Columbia in 1959, reads as follows:

“The accused is not responsible for a criminal act if such act was the product of a mental disease or mental defect. A mental disease is a diseased mental condition which may get better or get worse; a mental defect is a diseased mental condition which cannot get better and cannot get worse. The criminal act was the product of the mental disease or mental defect if the act would not have occurred except for the disease or defect; and that is so whether the disease or defect was the only cause of the act, or the principal one of several causes, or one of several causes.”

The Durham Rule has not been widely adopted, but its history in the courts has been followed with great interest. It is probably fair to say now that the Durham Rule has largely been a failure as an attempt to ameliorate the problem of expert testimony. Briefly, three main difficulties have emerged. The concept 'mental disease' has been shown to be notoriously unclear by skeptics - as a technical psychiatric term; it has proved to be overwhelmingly difficult, if not impossible, to give a useful, agreed-upon explication of this term. Second, the term 'product' is highly ambiguous - Judge Bazelon has called this concept the 'albatross' of Durham. Third, by phrasing the criterion in psychiatric technical or quasi-technical terms, the test has encouraged the experts to offer 'conclusive' evidence of responsibility, thus confusing the functions of the jury and the experts and obstructing rather than freeing the channels of communication between expert and jury.

2.5 THE ALI MODEL PENAL CODE [9]

In 1962 the American Law Institute (ALI) proposed the Model Penal Code, including a section on the Defence of Insanity containing the following test:

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality and wrongfulness of his conduct or to confirm his conduct to the requirements of law.

(2) the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

Note that (1) is very reminiscent of McNaghten and the Irresistible-Impulse Test, except that the phraseology permits a somewhat broader interpretation of these tests, purporting to alleviate some earlier problems introduced by excessively narrow interpretations. The ALI test is gaining increasing acceptance and it is especially notable that Durham was overturned in the District of Columbia in 1972 in favor of the ALI test in the case of Brawner v. US.

2.6 INSANITY DEFENSE REFORM ACT – IDRA[10]:

Public criticism of the defence of insanity after John Hinckley’s acquittal on the basis of insanity in1982 resulted in federal reform of the ALI substantial capacity defence. John Hinckley Jr., like Mc’Naughten over 150 years before, was suffering from delusions. By 1982, these delusions had a name – paranoid schizophrenia. Because of his schizophrenia, argued Hinckley’s defence attorneys, he could not control his behavior when he shot then President Reagan, a secret service agent, a Washington police officer, and James Brady, President Regan’s Press Secretary. Hinckley was infatuated with actress Jodie Foster, and he wrote a letter to the New York Times justifying his conduct as a “love offering” in order to change his status from an “insignificant fan” to a person Foster would take notice of, because he intended to go down in history. Hinckley compared himself and Ms. Foster with Napoleon and Josephine and Romeo and Juliet. Hinckley was tried in a federal court in Washington, D.C., which was using the ALI substantial capacity insanity defence. The jury believed that although Hinckley may have known in some capacity that his acts were wrong, because of his delusions he lacked substantial capacity or ability to appreciate that his acts were wrong. Hinckley’s jury accepted his defence of insanity and found him not guilty of 13 criminal counts by reason of insanity. The public was outraged. In response to the public outcry over the Hinckley verdict, some congressional members proposed to abolish the insanity defence. For once, the legal and mental health communities worked together and asked for modification, rather than a total ban of the insanity defence. Congress eventually passed a reform act known as the federal Insanity Defence Reform Act of 1984 (IDRA), which was a stricter version of the ALI substantial capacity test. Approximately 30 states changed their defence of insanity laws based on the IDRA and returned to a more restrictive M’Naghten-type test. Under the reformed defence of insanity, a defendant is usually required to show a “severe” mental defect or disease, and most jurisdictions retained the M’Naghten prong of the former ALI substantial capacity defence, but eliminated the irresistible impulse component. The federal act, which applies to federal courts, provides the following: 

“It is an affirmative defence to a prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defence” (18 U.S.C. Section 12(a)). 

Francisco Martin Duran, another paranoid schizophrenic who tried to assassinate a president, employed the reformed defence of insanity in a federal court in 1995. Mr. Duran had attempted to kill President Bill Clinton by shooting at the White House – a place he viewed as a symbol of the government he hated. Duran’s insanity plea under the reformed standard was rejected and he was found guilty of the numerous charges against him. The reforms, claimed its supporters, had prevented another Hinckley verdict.

2.7 COMPLETE BAN OF THE DEFENCE OF INSANITY

Some jurisdictions were still not satisfied with the IDRA and voted to abolish the defence of insanity altogether. One of the first states to adopt such a ban was the state of Montana, which abolished the defence in 1979. The Montana Supreme Court upheld the ban in the case of State v. Cowan, and the U.S. Supreme Court refused to review the case. Nevada adopted a similar statute barring the defence, but its Supreme Court found the statute unconstitutional, and again the U.S. Supreme Court refused to review the case. Although the U.S. Supreme Court has not finally ruled on the constitutionality of a complete defence of insanity ban, other states are continuing to abolish the defence. Idaho, Kansas, and Utah bar the defence of insanity in the following statutes: 

“Mental condition shall not be a defence to any charge of criminal conduct” (Idaho Code Section 18207(1)). 

“It is a defence to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defence” (Kan. Stat. Ann. Section 22-3220). 

“(1)(a) It is a defence to a prosecution under any statute or ordinance that the defendant, as a result of mental illness, lacked the mental state required as an element of the offense charged.

(b) Mental illness is not otherwise a defence, but may be evidence in mitigation of the penalty in a capital felony . . . and may be evidence of special mitigation reducing the level of a criminal homicide or attempted criminal homicide offense . . . “ (Utah Code Ann. Section 76-2-305 (1)(a) & (b)). In addition, although California still permits an M’Naghten type insanity defence, it has abolished diminished capacity as a defence, including mental illness or disease, under the following provision: 

“The defence of diminished capacity is hereby abolished. In a criminal action, as well as any juvenile court proceeding, evidence concerning an accused person’s intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged” (Cal. Penal Code Section 25 (a)).

2.8 GUILTY BUT MENTALLY ILL OR INSANE:

One of the most significant outcomes of the reforms after Hinckley has been recognized that some people, who are unable to satisfy the reformed legal definition of insanity and are found guilty, may still be mentally ill or insane under the medical definition and should receive treatment. Many state legislatures that reformed the defence of insanity after Hinckley, also adopted a new type of verdict known as “guilty but mentally ill or insane.” South Carolina’s laws provide a good example of such statutory reforms. In 1984, South Carolina adopted a M’Naghten type defence of insanity as follows: 

“It is an affirmative defence to a prosecution for a crime that, at the time of the commission of the act constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong” (S.C. Code Ann. Section 17-24-10(A)).” 

Recognizing that most defendants would be unable to carry their burden of proving the defence of insanity styled after the M’Naghten rule, the South Carolina legislature adopted another statute in 1984 that made the irresistible impulse prong of the ALI substantial capacity defence the test for a new verdict of “guilty but mentally ill.” The statute provides the following: 

“A defendant is guilty but mentally ill if, at the time of the commission of the act constituting the offense, he had the capacity to distinguish right from wrong or to recognize his act as being wrong . . ., but because of mental disease or defect he lacked sufficient capacity to conform his conduct to the requirements of the law” (S.C. Code Ann. Section 17-24-20(A)).   The verdict of “guilty but mentally ill or insane” recognizes the right of society to have wrongdoers punished and be protected from crime, while protecting the rights of the mentally ill and insane to receive some type of treatment for their medical mental disease. For example, when John E. du Pont was convicted in Pennsylvania in 1997 of the shooting death of former Olympic gold medalist David Schultz, he was found “guilty but mentally ill.” Du Pont suffered from several delusions and claimed he heard talking walls and saw Nazis in trees. He also cut off his own skin to remove bugs he believed were invading from outer space. The Pennsylvania statute that permitted the guilty by mentally insane verdict provided the following:   “A person who timely offers a defence of insanity . . . may be found ‘guilty but mentally ill’ at trial if the Trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense” (Pa. Con. Stats. Section 314(b)). 

There are approximately 20 States that permit a guilty but mentally ill or insane verdict. In arriving at this verdict the Trier of fact is required to make the following three findings: 

• The offender is guilty of the crime charged (legal finding),

 • The offender has not provided sufficient proof to support the defence of insanity (legal definition), and

 • The offender is mentally ill or insane (medical definition usually based on testimony of medical experts).

The M’Naghten Rules did not address questions of guilt satisfactorily either. In 1883, Queen Victoria, the target of many a mentally ill individual, insisted that the verdict of “not guilty” be changed suitably to deter other lunatics from acting in a similar manner. The new law allowed juries to return a verdict that while guilty, the accused was insane at the time and so should be held as a “criminal lunatic”. This enactment also marked a shift in the perception of insanity. While the defence of insanity was initially considered a complete answer to criminality, it had now molded again to lay guilt upon the defendant while exonerating him from responsibility because of his insanity. Since then, the phrasing of “guilty of the act or omission charged, but insane so as not to be responsible, according to law, for his actions” was employed to denote the condition of a guilty yet insane defendant. It remained in use until the Criminal Procedure (Insanity) Act, 1964.

Even though several statutes were enacted in England after the M’Naghten Rules were framed, the current language of the law and the test employed are derived from them. Several attempts to reform the law, most notably by the Butler Committee in 1975 and the Law Commission in 1989, have been ignored by successive governments.

In 1892 Canada’s Criminal Code was enacted and drafted in a large part from British law including its laws on insanity and crime – including the M’Naghten rule. The same section incorporated a legal presumption of sanity, however, and an acquittal on account of insanity resulted in detention with all decisions regarding release to be decided by the Lieutenant Governor. These laws were used until the Supreme Court of Canada ruled the defence of insanity unconstitutional.

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[1] Michael A. Eagan, “The effect of the Guilty but Mentally Ill verdict on the outcome of a jury trial” p2

[2] (1724) 16 St. Tr. 695

[3] (1840)

[4] (1760) 19 St. Tr. 885

[5] (1800) 27 St. Tr, 128

[6] (1812) 1 Collinson Lunacy 673

[7] Douglas Walton, “Philosophical perspectives on the insanity defense” p546

[8] Durham v. united states 214 F.2d. 862

[9]  Opcit 26

[10] Carol A. Rolf, J.D., “From M’naghten To Yates – Transformation Of The Insanity Defense In The United States –  Is It Still Viable?” , Rivier College Online Academic Journal, Volume 2, Number 1, Spring 2006, p8-9