This article is written with reference to established conventions in legal academic writing and adopts the OSCOLA citation style, in contrast to the AMA or modified APA citation styles I normally use.
1. Introduction
The criminal law is ill. It has been branded a ‘mess’ which consists of archaic legislations and numerous changes traversing the course of history.[1] It is unreasonable, for example, to persist in putting ‘wounding’ and ‘grievous bodily harm’ together in section 20 of the 1861 Offences Against the Person Act, [2] where in medical reality, they carry vastly different implications. However, one would be wrong to assume that the issue lies solely on statutes of the old and the common law. The obsolete beliefs of judges, preconceptions of the jury and pervasive closed-mindedness of the courtroom aggravate the dire state of affairs.
The criminal law concerns people and the state, focusing on human behaviour and cognition.[3] Smith and Hogan cite the American Law Institute’s Model Penal Code as an authority regarding the chief purposes of criminal law.[4] Inter alia, it ‘forbid[s] and prevent[s] conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests’.[5] Upon the management of cases concerning those with ‘unconventional’ circumstances, any justification or excuse is not duly contemplated. Judgments are strewn with references based on outdated understanding of biomedicine. However, is this reflective of the rule of law? Article 40 of Magna Carta follows: ‘To no one will we sell, to no one deny or delay the right of justice.’[6] Current approaches defy this age-old principle. This article advocates the concurrent adoption of a ‘medical approach’, the confluence between public policy, fairness and justice, scientific open-mindedness and devoutness to contemporary medical understanding.
I divide this article into two parts- ‘Mind’ and ‘Body’. In ‘Mind’, I discuss about the courtroom’s view of psychopathy, a condition tinged with public imagination and exaggerated media portrayals. I also discuss the court’s general approach towards defendants with relatively low IQ and whether its exclusion from contextualisation is justifiable. In ‘Body’, I elucidate upon the ludicrousness of the external-internal divide for the defences of insanity and automatism. I explain why this traditional divide does not reflect medical reality. Instead, it introduces heinous implications to society.
As a disclaimer, this article focuses primarily on common law jurisdictions. Moreover, this article addresses two broad categories of issues only. It is intended to be a sketch of how the criminal law’s current state can be ameliorated by the injection of a dose of medicine.
2. Mind
This section is divided into three parts: (1) psychopathy, (2) intelligence and (3) critical opinions. Under ‘psychopathy’, I discuss the epidemiology, characteristics and judicial preconceptions about the condition. I summarise the most updated neurological findings and how they impact on courtroom justice. Under ‘intelligence’, I examine the justifiability of the court’s exclusion of intelligence as a factor of consideration in contextualising the ‘reasonable person’. Under ‘critical opinions’, I shall challenge two arguments: (a) the fundamental psycho-legal error and (b) that adequate protection is available already to defendants with psychopathy.
A. Psychopathy
Current estimates state that just less than 1% of the total, non-institutionalised adult population are psychopaths.[7] Although the estimate for the general adult male population in North America remains roughly at 1%, the proportion of psychopaths in the male incarcerated population rises dramatically to 25-40%.[8] Psychopathy is crucially relevant to the criminal justice system.
The Joker once asserted: “You see, I’m not a monster. I’m just ahead of the curb.”[9] The thinking behind this powerful statement has already illustrated the key features of psychopathy. NE Anderson et al defines psychopathy as ‘a neuropsychiatric disorder marked by deficient emotional responses, lack of empathy, and poor behavioural controls, commonly resulting in persistent antisocial deviance and criminal behaviour’.[10] Throughout the past century, several medical authorities have established their voices in the area, notably Robert Hare,[11] and the American Psychiatric Association.[12] The features of psychopathy are endless,[13] but can be exemplified by the following snippet of an interview with Peter Woodcock, a Canadian serial killer and child rapist in the 1950s. The scenario exhibits Woodcock’s total lack of empathy and remorse. The desire to reoffend implies a proclivity for stimulation-seeking behaviour.
PETER WOODCOCK: I regret that children died, but I felt like God. It was the power of God over a human being.
INTERVIEWER: Why was that important to you?
WOODCOCK: It was the pleasure it gave me. I got very little pleasure from anything else in life. But in the strangling of children I found a degree and a sensation of pleasure. And of accomplishment. Because it was such a good feeling I wanted to duplicate it. And so I went out to seek duplication.
INTERVIEWER: People would be horrified to hear you view it as an accomplishment.
WOODCOCK: I know, but I’m sorry, this is not meant for sensitive ears. This is a terrible recitation. I’m being as honest as I can.[14]
Such characteristics do not resonate well with opinions echoed in the Anglo-American courtroom. In R v Fenton,[15] the defendant suffers from multiple psychiatric conditions, including paranoid psychopathy. There are two ways to view this case: the jury and the judge. The jury rejected the defence of diminished responsibility on the basis of his mental health. On appeal, Lord Widgery CJ said:
We recognise that cases may arise hereafter where the accused proves such a craving for drink or drugs as to produce in itself an abnormality of mind but that is not proved in this case. The appellant did not give evidence and we do not see how self-induced intoxication can of itself produce an abnormality of mind due to inherent causes.[16]
This assertion focuses exclusively on the interactions between the mind and voluntary intoxication, rather than takes into account possible interactions between intoxication and psychopathy. In R v Byrne,[17] the trial judge’s directions to the jury amounted to the total exclusion of abnormality of mind from consideration. Notorious psychopath in American history, Ted Bundy, was sentenced to death thrice, after standing trial for the murders of Florida University sorority students and Kimberly Leech, who was abducted from her school at the age of 12 and was sexually assaulted before being strangled to death.[18] Even Bundy’s criminal defence attorney, John Henry Browne, used the emotionally-fuelled word ‘evil’ to describe Bundy upon their first encounter.[19] In The Psychopath Whisperer, Dr Kent Kiehl recounted his personal experience with the case of Brian Dugan, a psychopath convicted of three counts of murder.[20] Despite having presented to the jury the latest research he executed on psychopaths and evidenced that Dugan’s brain imaging findings corresponded to those afflicted by psychopathy, the jury eventually returned with two verdicts of death. Even Dr Kiehl stated in his book that ‘it was not an unexpected verdict’.[21] More strikingly, with unfathomable reasons, the jury’s first verdict of life sentence (prior to the death verdicts) vanished in the system. The judge that had been given the signed verdict never informed the defence counsel of it. The convoluted nature of the case prompts discussion as to whether such preconceptions and prejudices against the ‘intrinsically evil’ have led to grossly inappropriate conduct in the courtroom leading to the inadvertent miscarriage of justice.
It is vital for us to be acquainted with the latest medical evidence to grasp better the neuroscientific perspective of psychopathy. Dr Kiehl proposes the ‘paralimbic dysfunctional model of psychopathy’.[22] The regions implicated are the anterior temporal pole, hippocampal complex, amygdala, anterior and posterior cingulate gyri and the orbitofrontal cortex.[23] Defects in the paralimbic brain, according to several studies, rouse issues in aggression, motivation, empathy, planning and organisation, impulsivity, irresponsibility, poor insight and lack of behavioural controls.[24] In short, in his own words, ‘if you damage a part of the paralimbic system, you can acquire a psychopathic personality.’[25] Of note, the amygdala is responsible for aversive learning and fear conditioning.[26] When diseased, a higher threshold of activation is required to ‘feel’ fear and adversity. A recent study has also shown a statistically significant correlation between impulsive-antisocial psychopathic traits and activation of the dopamine reward pathway (mesolimbic).[27] Combining the increased difficulty to feel fear and elevated feeling of reward, patients with psychopathy are more likely to engage in stimulation-seeking behaviour.
How do medical advancements reconcile with legal proceedings? In R v Byrne, in an era where understanding towards psychopathy remained limited, the appellate judge Lord Parker CJ conceded: ‘Furthermore, in a case where the abnormality of mind is one that affects the accused’s self– control, the step between “he did not resist his impulse” and “he could not resist his impulse” is, as the evidence of this case shows, one which is incapable of scientific proof.’[28]
In his judgment he expanded the definition of ‘abnormality of mind’ to the capability of exercising willpower to prevent oneself from performing an action outside the realms of one’s rational judgment.[29] The development of science in that era understandably impeded the course of legal progression. Nowadays, the evidence suggests patients with psychopathy fall into the aforementioned latter scenario – the inability to resist the impulse. Returning to Brian Dugan’s case,[30] upon being interviewed regarding the motive(s) behind the murders he committed, he proffered: ‘I don’t understand why. I wish I knew why I did a lot of things, but I don’t.’ On a broader note about morality, psychopaths might not even have the ability to control who they are. In the words of Ted Bundy’s criminal defence attorney, John Henry Browne said:
He said to me, ‘John, I want to be a good person, but I’m just not,’ said Browne. He actually fell to the floor cell and had tears in his eyes when he said that… It was the first time I ever saw him truly emotional. He was acknowledging that he was basically an evil person who has done awful things and he wished he wasn’t that anymore… He snapped out of that after three hours and went back to the façade of Ted.[31]
Multiple studies have shown that psychopathic traits are strongly correlated with genetic factors, with the heritability of severe antisocial behaviour perched at 50%.[32] This correlation is stronger between father and offspring.[33] The condition is thus partly predetermined during fertilisation. With research attesting that psychopaths experience profound, incorrigible developmental brain abnormalities (or tendencies of which) which exert deleterious effects on impulse control, morality and decision-making, it is unthinkable why the courts still fail to recognise their differences from the ordinary individual. Distributive justice can only be served when equality and fairness for all takes precedence.[34] Furthermore, opinions regarding impulse control by certain prominent judges are not only alarmingly unsympathetic, but also prompt discussion as to whether they require some form of medical education.[35] More common diseases such as schizophrenia are, however, gradually given due recognition.[36]
Unfairness also stems from the behaviour of the defendant in court. The defendant is not obliged to present themselves in any prescribed manner. However, the lack of affect and emotion has long seen to be detrimental to the case, since it is erroneously construed as a sign of lack of remorse. This has been discussed in length, although in a slightly different context, by Helena Kennedy in Eve was Framed.[37] When describing the case of Ruth Ellis: ‘So many witnesses, particularly a woman who has gone through an emotional battering, disengage from events and give their evidence in a cool, remote way.’[38]
In The Psychopath Whisperer, when queried about an experience of sexual assault earlier in life, Brian Dugan’s manner was described by Dr Kiehl as follows: ‘He described his assault…with a complete lack of affect. His lack of emotion was as profound as I’d seen in any inmate I have ever interviewed.’[39] I am not attempting to strike parallels between female defendants in general and psychopaths, since they are inherently different. What I am trying to stress upon is the natural instinct of the jury to judge ‘a book by its cover’. Apathy is seen as lack of remorse. The popular belief that psychopaths are excessively intelligent,[40] is also damaging, since it does not correspond to the stereotype of being ‘mentally unwell’. The erroneousness of this belief is pointed out by recent studies.[41] However, observations without context introduce unfairness and fails to assess one’s culpability. This is made worse when they are interpreted in a wrong context.
Psychopathy is, despite recent advancements, still not recognised as a separate clinical entity. However, no evidence suggests it should be treated differently than other psychiatric conditions. Ample studies show profound neurological deficits in such individuals, associated with antisocial behavioural traits conducive to offending. As Professor Herbert Hart famously said, ‘a person should only be blamed if he has the capacity and fair opportunity to change or adjust his behaviour to the law.’[42] Patients with psychopathy have neither the capacity, nor the fairness of opportunity, to do so. Yet, the heinousness of their crimes, flanked by archaic and monolithic attitudes,[43] take the armour of justice away from these individuals, deepening misunderstandings and marginalisation of the unfortunate.
B. Intelligence
If psychopaths have low emotional quotient (EQ), then what about individuals with relatively low intelligence quotient (IQ)?[44] Are they treated fairly in court owing to the fact that their cognitive abilities are lower than average? Intelligence is defined as: ‘The ability to acquire and apply knowledge and skills.’[45] It is a key human characteristic concerning the high cognitive functions. It is hypothesised that intelligence follows a normal distribution, implying that most individuals in a population lies within the middle range of intelligence.[46] In law, persons of low intelligence are discriminated indirectly by the myopic vision of certain judges, where intelligence is rejected as a factor of contextualisation.
In cases such as the defence of duress, an objective test is imposed which limits the ambit of contextualisation. While a subjective test is encouraged, as stated in R v Graham, an objective element is added: ‘If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing?’[47] Firmness concerns decision-making and rumination of consequences, both being higher cognitive processes those with impaired intelligence struggle with. It is mentioned ‘the law requires a defendant to have the self-control reasonably to be expected of the ordinary citizen in his situation.’[48] Lord Wilberforce went as far as saying, ‘…the common law, through the judges, accepts and sets the standards of right thinking men of normal firmness and humanity at a level at which people can accept and respect.’[49] Unless the definition of ‘ordinary’ in law differs substantially from its literal meaning, there is no reason to believe that this should apply to those with relatively low intelligence.[50] With all due respect, it is risible to suggest that the ‘standards’ mentioned by Lord Wilberforce will be without controversy, especially when applied to cases where such individuals, with an activated fight-or-flight system, engage in criminal acts only because of the perception of a severe threat. It is hardly palatable, let alone respectable, to marginalise those who are not as intellectually endowed as the judges by subjecting them to a normal, arbitrary standard which they can never aspire to reach.
Taking a broader perspective, some might argue that rendering the entire defence of duress subjective might lend to abuse. However, being rigorous does not signify the denial of justice to those who accommodate biological shortcomings from birth. While the court insists of imposing an objective standard, it is extremely comforting to see progress – the recognition of the experience of special populations, by including the phrase: ‘sharing the characteristics of the defendant’. It has been acknowledged that: ‘Threats directed against the weak, immature or disabled person, may well be much more compelling than the same threats directed against a normal healthy person.’[51]
It can thus be reasonably deduced that for individuals with relatively low IQ will be compared with a reasonably contextualised standard of firmness when assessing the applicability of the defence of duress. However, this great step forward has been cut short by the court’s decision to leave the contextualisation to the jury.[52] The lack of statutory recognition condones attempts by judges to impose their own arbitrary standards regarding the issue. In R v Bowen,[53] arbitrariness has reared its ugly head. The defendant’s age, gender and physical disability are decidedly relevant, but not low intelligence. It is unfathomable that intellectual disabilities are not contemplated on an identical plane as physical ones.
Amusing enough, while the court insists that those with relatively low intelligence shall be compared against the ‘objective standard’, it recognises the intellectual immaturity in adolescents and children.[54] In terms of cognitive abilities, both subgroups are comparable. In terms of assessed standards, they are grossly disparate.
C. Critical Opinions
There are vehement critics in the discussion of mind, medicine and the law. Law professor Stephen Morse long proclaims there to be a ‘fundamental psycho-legal error’, referring to the ‘error’ of thinking that causation of human choice by factors themselves outside the chooser’s control excuses that chooser from moral responsibility.[55] In The Psychopathy Whisperer, Dr Kiehl also stated that some legal scholars argued against the use of neuroscientific discoveries to excuse the defendant’s criminal behaviour, since it would mean that there is no criminal responsibility since everything has a source.[56] At first glance, Professor Morse’s assertion is logical: everyone is born different. Indeed, we all are raised in different environments and families. Such are not always in our control. Life course factors influence our choices, guiding us to the performance or non-performance of actions. For instance, in Brian Dugan’s case,[57] the tragic fact that he was sexually assaulted by a male rapist when he was a teenager is no defence towards any of his crimes, even if it is out of his control and has an inadvertent impact on his decision-making process. We are ready to say that, for instance, a serial killer without any detected brain abnormalities is culpable for his/her crimes even if he/she has been persistently sexually abused when young. The serial killer/rapist could not stop the abuse, which influenced his/her way of making decisions later in life. Nonetheless, he/she actively pursued and made those decisions. Such life course factors did no more than proffer influence.
However, the same cannot be replicated for patients of relatively low intelligence or psychopathy. Contextualisation does not aim to ‘excuse’ a particular defendant. It serves as a crucial factor in determining the ‘culpability’ and ‘capacity’ of the defendant. Science, in turn, can give a more solid explanation to such heterogeneity. Psychopaths, as elucidated above, have profound brain issues, rendering substantial difficulties in fear conditioning and empathising others. Such life course factors, including a strong hereditary component, not only influence their behaviour, but more importantly, reduce their capacity to make those decisions. In Ted Bundy’s own words, ‘John, I want to be a good person, but I’m just not.’[58] Even given Bundy’s desire to be a better person, one that is defined to be acting in a morally acceptable manner, his confession suggests his lack of capability to be so. Brian Dugan, when asked if he killed for excitement said: ‘No, I just did it quick as I could, I don’t know why, it just kind of happened.’[59] Those with relatively low intelligence can have neurobiological roots to their condition. This prompts the reduction in capacity to make decisions in a way comparable to the reasonable person. It is far from effortless to assert that such defendants are fully culpable for their crimes and deserve the full force of retributive justice.
Another possible argument is that the law has already provided such individuals with adequate protection. Concerning the M’Naghten case in 1843,[60] the jury direction concerning the defence of insanity states:
that every man is to be presumed to be sane, and ... that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring 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.[61]
It is undoubted that the law has seemingly provided adequate protection to such individuals. While there are statutory provisions to protect those who are unfit to plead, as we see in ‘Body’, they are inadequate and problematic.[62] It depends heavily as well on the operators and gatekeepers of the law, including judges and the jury. If their attitudes and stereotype-blighted vision are not rectified, misjustice will only perpetuate.
What such defendants need is not life incarceration, death penalty or further marginalisation. They require support. They require rehabilitation. They require inclusion. It is time for the criminal justice system to recognise that these are living, breathing individuals who are committing crimes because of their intrinsic difficulties which impede them to conform to the tenets of normal comportment.
3. Body
The external-internal divide in the common law defences of insanity and automatism is, frankly speaking, an embarrassment. The label of insanity is deemed ‘profoundly misleading’.[63] Even Hughes LJ in R v Coley stated his concerns over the external-internal divide: ‘[The distinction between] external factors inducing a condition of the mind and internal factors which can properly be described as a disease can give rise to apparently strange results at the margin.’[64] There are three major arguments against the current divide: (1) the logical fallacies involved which render current law divorced from medical reality, (2) the failure of achievement of judicial goals and (3) the failure of protection of society from the genuinely dangerous. The lack of review of the defences only induces disastrous consequences: (1) breeding of stigmatisation and, (2) sabotaging of the public healthcare system.
To commence, our bodies interact with the outside world. Everything is connected, intricate to a degree that it is impossible to find a definite source. Seeking so is not only futile, but highly risible. In R v Kemp, the defendant experiences arteriolosclerosis, the hardening of the small vessels in the brain, giving rise to the assault due to the loss of consciousness.[65] [66] The court asserted that no external factor was identified, thus the defendant could not plea for the defence of sane automatism.[67] Studies from the University of Oxford, have shown that dietary habits, including cholesterol, are correlated with the risk of stroke.[68] It has also been shown that heavy alcoholism, an external factor, contributes to higher risk of all subtypes of stroke.[69] To assert that the event of arteriolosclerosis is ‘purely’ internal is factually erroneous.
Epilepsy is another key example to expose the logical fallacy. In R v Sullivan, the court held epilepsy was not a disease originating from an external factor. Rather, it was a disease of the mind and was brought under the M’Naghten Rules.[70] Superficially speaking, it is reasonable for the judges to have slotted it finely under nineteenth-century medical understanding. After all, according to a Lancet review article, ‘transient loss of consciousness is the most common presentation with syncope…’[71] As defect of reason in the M’Naghten Rules refers to cognitive impairment,[72] a transient loss of consciousness satisfies so. However, the external-internal divide leads to substantial issues as we tread into areas of medical advancement. Around 3% of the epilepsy population fall into a subcategory called photosensitive epilepsy.[73] It is defined as the occurrence of seizures immediately, caused by ‘being exposed to flashing lights or patterns’.[74] An example of a trigger is virtual reality, where more of the visual field is stimulated.[75] In the event of a teenage patient playing a video game in virtual reality, where he subsequently has a seizure and, amidst the flailing of limbs, claws into the skin of his partner with his uncut fingernails as he loses consciousness, is the law’s focus on the external factor, i.e. the flickering screen, or the internal factor, i.e. the inherent disease of the ‘mind’?[76] In eminent neurologist Dr Suzanne O’Sullivan’s book It’s All in your Head, she cites the case of Shaun, a former teacher who suffers from dissociative seizures. [77][78] Shaun exhibits symptoms of seizures, described by his wife as ‘turned deathly pale and collapsed like a rag doll on the floor’.[79] From R v Sullivan,[80] if Shaun injured his wife during one such event, he would be labelled ‘insane’, since he would be considered to have a ‘disease of the mind’. However, Dr O’Sullivan states that ‘[Shaun’s] brain scan was normal.[81] The EEG brainwave test showed some irregularities that were not felt to provide conclusive proof of epilepsy…’ In the absence of any remarkable test results, is it rational for the law to divorce its judgments from medical reality, asserting that he is insane? Some might argue that the test results merely prove that he does not have a ‘disease of the brain’. Rather, he suffers from a ‘disease of the mind’. This argument would gain ground from the assertion from a book written by Jeffrey A. Lieberman, professor of psychiatry at Columbia University that: ‘[Psychiatry]…still had no reliable, scientific [his own italics] method for diagnosing mental illness.’[82] However, the presence of life stressor events in patients with dissociative seizures cannot be dismissed.[83] Dissociative seizures, like any medical condition, follows a liability-threshold model.[84]
Diseases are brought about by a multiplicity of factors, including genetic mutations and environmental variations. Patients with dissociative seizures do not have a sole issue in psychology, but one combining the mind, body and environment. It is hard to deny that the environment is an external factor to the human body.[85] The stubbornness of the criminal justice system in this field is beyond tolerance. Judicial treatment of a defendant with epilepsy has turned into a ‘lottery’, dependent on the type contracted.
By the same token, it may seem obvious hypoglycaemia and hyperglycaemia are polar concepts.[86] The reasonable, non-medical thinking goes: if a person experiences a transient defect in reasoning owing to the ingestion of glucose, an external factor, the defendant can plea for sane automatism. Likewise, if a person experiences hypoglycaemia through starvation, the lack of an external factor renders insanity the appropriate defence. This is (1) medically incorrect and (2) unreflective of the factual matrices of case precedents. Diabetes mellitus is a common disorder characterised by insulin resistance and relative insulin deficiency.[87] In R v Hennessy, it was held that the hyperglycaemic episode is an underlying condition of diabetes.[88] As an internal factor, it can be described as a disease of the mind.[89] This contrasts to R v Quick, where the defendant can rely on the defence of sane automatism because the associated episodes are caused by ‘his use of the insulin prescribed by his doctor’, rather than by diabetes, which is an internal factor.[90]
There are two arguments against this. Firstly, justice is, as discussed above, downgraded into a game of lottery rather than a system of fairness. According to modern judicial interpretation, it cannot be more perplexing since both conditions, hypoglycaemia and hyperglycaemia, originate from the same pathophysiological mechanism. It is a lottery as to whether the defendant has taken insulin prior to the inciting incident. Secondly, claiming that diabetes is wholly ‘internal’ is another pitfall. At most, a quasi-external/internal divide exists between diabetes mellitus types I and II, in which the former has an earlier onset and is characterised by greater genetic predisposition.[91] Judging by the literal meaning of ‘internal’, genetic predisposition falls into this category. But then, even genetic predisposition does not mean, in any way, medical certainty. There are various factors at play, with the environment being a chief consideration due to gene-environment interactions.[92] Hence, even if we artificially split the science in the wishes of the judiciary, we still lack a coherent explanation.
Such logical fallacies undermine the medical truth. Even a relatively straightforward case like R v T defies the traditional external/internal divide.[93] Some might dismiss this as the opinion of the medical man and has nothing to do with the law. This may be true, but this attitude is nothing short of playing with fire, the turning of a contemptuous eye to the ideas of fairness and equality.
Following that, the external/internal divide fails to satisfy judicial goals. Judges have stressed on the correlation between the insanity defence and the likelihood of recurrence of a certain condition.[94] Lord Denning states in Bratty v A-G for Northern Ireland: ‘It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.’[95] Lord Lane supports this argument in R v Burgess: ‘If there is a danger of recurrence that may be an added reason for categorising the condition as a disease of the mind. On the other hand, the absence of the danger of recurrence is not a reason for saying that it cannot be a disease of the mind.’[96]
While it is appreciable that judges have considered the imminent need to use the insanity defence to uphold the public interest, there are two arguments against its efficacy. Firstly, there are many patient subgroups classified as ‘legally insane’ after committing a crime due to an inherent medical condition, who are unable or very unlikely to reoffend. Hospitalisation is unlikely to be efficacious and, such expressions of judicial naïveté are likely to aggravate public health concerns. I illustrate this with two scenarios.
In scenario one, a patient experiences brainstem stroke during sexual intimacy with his/her spouse.[97] Her loss of consciousness induces her to pull his/her partner off the bed. Such an act causes injury to the spouse amounting to actual bodily harm. According to legal authorities,[98] any consent given towards acts constituting to assault occasioning actual bodily harm (or worse) under section 47 of the Offences Against the Persons Act 1861, is automatically vitiated.[99] With the absence of any defence, the defendant can be convicted. The defence of insanity is likely to be approved, since it satisfies the M’Naghten Rules,[100] with her suffering from a ‘defect of reason’ originating from a ‘disease of the mind’. According to R v Kemp,[101] arteriolosclerosis (one of the precursor mechanisms to stroke and gives effect to the disease of the mind through it) is an internal factor. The defendant is likely to be given a verdict of ‘not guilty by insanity’. The disposal of the defendant, in terms of avenue and judicial powers, lies outside the scope of this discussion. However, note that there is virtually no chance that these ‘offenders’ are able to reoffend.[102] The labelling of the defendant, who is a victim himself/herself, as insane is useless and unhelpful.
In scenario two, a patient experiences subarachnoid haemorrhage. Thunderclap headaches ensue, rendering the patient extremely irritable.[103] A passer-by brushes past. She responds by plucking a hairpin from her hair and stabbing his neck with it. The passer-by is severely injured. In this case, she is likely to be charged under section 18 of the Offences Against the Person Act 1861.[104] She is likely able to succeed in pleading for insanity, since subarachnoid haemorrhage, given its origin in the brain, is likely to be interpreted as an ‘internal cause’ leading to ‘defect of reason’. However, is such labelling useful? There is very scarce literature regarding subarachnoid haemorrhage and recidivism. Such individuals have poor clinical outcomes, whereby the death rate reaches 40 to 50 percent.[105] More than a quarter of those who survive hospitalisation are likely to experience severe restrictions to their lifestyle.[106] It is thus risible to hypothesise that such patients, having experienced significant disability after the inciting incident, are more likely to reoffend.
Last but not least, the current law does not differentiate between those with genuine proclivity for violent behaviour and those who require neurological care. The law ultimately fails to protect society. As reported by BBC News, Nigel Constable has a history of violent epileptic seizures. He attacked his mother Betty Constable, leaving her with ‘catastrophic’ (quotation theirs) head injuries which led her to her demise. Constable’s counsel, Andrew Campbell-Tiech QC, said: ‘It means that he will no longer be imprisoned. He will as a matter of law be confined to a secure mental institution indefinitely.’ [107] Nigel Constable, and indeed patients who suffer from epilepsy in general, require medical care. They require access to specialist services, depending on the severity of their symptoms. They need carers with specialist experience to accompany them when they can sense the arrival of a seizure.[108] Sending them to a mental health institution anchors no foreseeable benefit whatsoever. They require the state’s protection, not its disdain. On the contrary, what about psychopaths? Judicial preconceptions aside, even if they are considered to be legally insane, does this guarantee protection for the populace from an individual harbouring violent propensities? According to Smith and Hogan, this is not the case.[109] Against the backdrop of 1991 reforms, with the increase in avenues of judicial disposition (automatic indefinite detention remains as one of them), defendants still ‘seemingly prefer’ to risk conviction rather than incur the stigma of a verdict of ‘not guilty by reason of insanity’.[110] The authors have gone further: ‘It is unsatisfactory that the state of the law is such that people suffering from a mental condition feel compelled to plead guilty’.[111] Regarding the state of affairs, a psychopathic defendant could have committed a crime other than murder (such as assault occasioning grievous bodily harm) for self-gratification. The courts would consider him/her for the defence of insanity, but he/she could choose to plead guilty instead. If sentenced to imprisonment, given the superficial charm and glibness of psychopaths, there is a potential risk that they will be considered for parole as defendants without an established psychiatric condition. When released, there is a palpable risk directed to the community at large. Thus, what the current law has done is failing to protect the community from those whom we need to be protected from, and lamentably depriving certain patients of their liberty and, in doing so, jeopardising their health and care.
This chaos leads to two major problems: (1) increased stigmatisation of a vast range of diseases, including neurological and psychiatric problems and, (2) public health concerns.
To commence with, stigma is a serious social issue and the court’s decision to tenaciously cling onto archaic rules exacerbates the problem. Violet posted her experience with stigma attached to psychiatric conditions on Mind, a charitable organisation specialised in mental health issues.[112] Using her own words: ‘I feel so angry that mental health stigma still exists and find challenging it can be so frustrating.’ Stigmatisation took its toll on her mental health: ‘I felt completely isolated and I was so ashamed of having mental health problems.’[113] Epilepsy Action, a registered charity in England and Wales, published a study regarding UK attitudes towards epilepsy.[114] Although the report found a generally positive attitude towards this patient subgroup, 10 out of 100 people still harboured a negative attitude and 1 out of 100, very negative attitude.[115] An article published on the Observer reveals, from a study done by the Sue Ryder charity, 67% of the general public had no or very little knowledge of neurological disorders.[116] Nearly half (45%) were not even able to mention one condition, despite its relevant ubiquity in the community. Susan Hogston, chief nurse at Sue Ryder, states:
There is a perception that people with neurological conditions aren’t like us. The general public just aren’t aware of it; it doesn’t hit their radar. Or, when they are seeing it, they might make excuses for it. People who have got this strange gait often look drunk or might slur their speech, and people make assumptions.[117]
With scant education regarding neurological disorders, coupled with the persistence of negative attitudes, the court’s obstinate behaviour does nothing helpful. Rather, the retention of the external/internal divide and an obsolete version of the defence of insanity reinforce the idea of ‘us’ and ‘them’. This also erroneously informs the public that patients with neurological disorders are dangerous and insane, warranting ‘detention in hospital’.[118] This is anticipated to aggravate current lines of marginalisation.
In terms of public health concern, there are two aspects of note: (1) individual, and (2) community. Firstly, neurological patients being transferred to mental health institutions are not given the quality and quantity of care they expect. For instance, a stroke patient requires multiple sources of support such as rehabilitation and follow-up.[119] It is erroneous to suggest that such patients will be subjected to better provisions at a mental health institution, which focuses on the care of psychiatric patients. Secondly, the diversion of patients into wrong institutions causes confusion and the problematic allocation of resources. Where the NHS is already in crisis,[120] with staffing shortages and financially overstretched services as core aspects,[121] pouring individuals into institutions when their condition can be managed out-patient serves to aggravate its precarious situation.
Some may argue that under post-1991 legislation changes, the court has the freedom to make (1) a hospital order (with or without a restriction order); (2) a supervision order; or (3) an order for absolute discharge.[122] It is no longer a mandatory requirement for the courts to institutionalise such individuals. However, as long as the option is still available, with judges focusing solely on the legal aspect of affairs, it can still be prone to abuse. Nigel Constable’s case is a clear illustration of the blatant ignorance the criminal justice system display towards the public healthcare system.[123] How many more epilepsy patients do the courts need to detain before they realise their mistake? Furthermore, as stated above, more and more defendants with mental health issues opt to plead for guilty instead of be labelled as ‘insane’.[124] It is therefore unsurprising that a paper by the Department of Psychiatry at Oxford shows that western prison populations have much higher prevalence, as compared to the gender-specific general population, in a wide range of mental health conditions.[125] In prison, although mental health and general practitioner (GP) services are available,[126] clinical outcomes remain worrying.[127] Suicide and self-harm are more common in prisoners than in people in the general community of similar age and gender.[128] From 2004-2010 data collected from prisons in England and Wales, in the past 12 months in custody, 5-6% of men and 20-24% of women prisoners engaged in self-harm.[129] Prisoners with mental health disorders are also disproportionately involved in prison infractions and violent incidents.[130] More importantly, prisoners with mental health conditions are also more prone to a wide array of other medical conditions, such as HIV, hepatitis C and tuberculosis, due to the sharing of drug-injecting equipment, unsterile tattooing, unprotected sex and overcrowding.[131] The court’s failings have driven those who need genuine care away from mental health institutions, where they are certain to receive appropriate support. Patients with multiple health conditions also require more resources and attention, causing further strain on the NHS. I do not intend to over-simplify an otherwise multifaceted issue, regarding the myriads of possible causes contributing to the current state of the prison system and inmate health. However, the contribution by the failings of the criminal justice system in the area of defence of automatism to such a quagmire cannot be overlooked.
The external-internal divide that demarcates the defences of insanity and sane automatism must end. Not only can it not withstand logic and medical reality, it also fails lamentably in the delivery of purported judicial goals and the identification of dangerous individuals to society. It encourages stigmatisation, breeds ignorance and has vast public health implications. The law governs society. Judges have to recognise that a ripple in the courtroom can lead to major implications in the wider world.
4. Conclusion
As explored in this article, there are multiple aspects in which the criminal law fails to protect society due to inherent biases and obsolete rules which are divorced from medical reality. I have divided this article into two parts: ‘Mind’ and ‘Body’. These sections indicated pointers for diagnosing the criminal law’s most lethal wrongdoings.
In ‘Mind’, I have illustrated how incompetent and unsympathetic the law is in face of patients with psychopathy and relatively low intelligence. Psychopathy is a recognised medical condition as a specifier of antisocial personality disorder.[132] Studies have shown that the symptoms exhibited by this patient subgroup, such as lack of remorse and sympathy, are associated with neurological deficits. However, due to the graphic detail of crimes, the inability of those in the criminal justice system to separate vindictive emotions and bigotry from rational thinking and open-mindedness, and the visual presentation of psychopathic defendants, they are severely prejudiced in proceedings. This is not helped by media portrayal of psychopaths and its rareness in society as compared to other psychiatric conditions, e.g. schizophrenia. Next, intelligence, although deemed as a key human characteristic, is dismissed during contextualisation. The courts have thus positioned itself against distributive justice, attested by its refusal to take into account of the unfortunate. While critics such as Stephen Morse may argue that the unearthing of biological mechanisms does not absolve the defendant of any wrongdoing,[133] if such biological mechanisms are pathological and conducive of their crime through uncontrollable impulses and impaired ability to empathise, I do not see the reason why the court should reject such evidence.
In ‘Body’, I have examined the failings of the external/internal divide that defines the defences of sane and insane automatism. I approach the logical fallacies in consideration of medical facts and understanding, using epilepsy, diabetes mellitus and PTSD as core examples. While the criminal justice system is enthused by the strict demarcation of external and internal factors, I assert that our bodies interact with the environment, to the extent where it is futile to do so. This divide also fails to achieve the goals the judiciary hopes to achieve. Some justices’ grasp of medicine alarms even the reasonable person, suggesting the feasibility of using the defence of insanity to protect society from those with recurrent issues.[134] While, albeit confusing, the Law Commission proposes that any internal malfunctioning of the body not associated with a ‘disease of the mind’ shall fall under sane automatism,[135] this also introduces misjustice since certain subgroups of ‘legally insane’ individuals, as illustrated in the case scenarios, are incapacitated after the inciting incident. There is virtually no risk for them to reoffend. Moreover, the external/internal divide does not differentiate those who are genuinely dangerous to society and those who require medical, not psychiatric, support. Resultingly, systemic ignorance breeds stigmatisation and causes a major public health concern. More innocent people plead for guilt, resulting in the myriads of health concerns arising from prisons.
Some postulate that it is not the law’s position to consider medical practicalities, that expert medical testimony is already sufficient. Such condescending attitudes are precisely what this article is critical about. Firstly, attitudes and preconceptions matter more in the courtroom than expert testimonies. In The Psychopath Whisperer,[136] Dr Kiehl mentions death was ‘not an unexpected verdict’ even after having presented the latest evidence of psychopathy. Moreover, in the United States, expert scientific testimony is inadmissible unless accepted as reliable by the relevant scientific community.[137] Regarding that the field of psychopathy study is relatively new, it is less likely that such testimony will survive the hearing. Secondly, this phenomenon is not case-specific. It is empirical. It is a core tenet of justice which has been grossly neglected. As discussed in this article, there are various aspects of the criminal law, a branch of law that concerns human behaviour and function, which are divorced from contemporary medicine. While it is not expected that all members of the judiciary become practising doctors, it is anticipated that everyone has an open mind and welcoming attitude to new facts and findings from science, that the medical approach should be considered as well.
Instead of establishing boundaries between the law and medicine, let us embrace what the latter has to offer for the amelioration of the former. It is this shift of paradigm that truly answers the call of law. As Martin Luther King, Jr once said: ‘Injustice anywhere is a threat to justice everywhere.’[138]
Footnotes:
[1] See Kimberley Brownlee, 'Digging Up, Dismantling, And Redesigning The Criminal Law' (2012) 7 Criminal Law and Philosophy. ‘…criminal law is a messy, contingent, historically-bound hodgepodge of rules, customs, and procedures better fit for the attention of the historian and the sociologist than the philosopher.’ [2] Offences Against the Person Act 1861, s 20. Available at https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/20 (information accessed on 4 October 2020). See JJC v Eisenhower [1983] Crim L R 567. Goff LJ defines wounding as: ‘It is not enough that there has been a rupturing of a blood vessel or vessels internally for there to be a wound under the statute because it is impossible for a court to conclude from that evidence alone that there has been a break in the continuity of the whole skin’ [341]. We can equally deduce that a paper cut, however slight, of skin continuity constitutes to wounding. This, however, is difficult to be deemed as equivalent in severity as ‘grievous bodily harm’. [3] Daniel Sznycer and Carlton Patrick, 'The Origins Of Criminal Law' (2020) 4 Nature Human Behaviour. [4] David C Ormerod and Karl Laird, Smith, Hogan, & Ormerod's Criminal Law (15th edn, Oxford University Press). [5] Proposed Official Draft, 1.02 (1). [6] T. H Bingham, The Rule Of Law (Penguin Books). (quote translated from Latin) [7] Kent A. Kiehl, ‘The Criminal Psychopath: History, Neuroscience, Treatment, and Economics’ (2011). 51 Jurimetrics. [8]Ibid. [9] Norbert Juma, '90 Joker Quotes On Humanity That Really Make You Think' (Everyday Power, 2020) <https://everydaypower.com/joker-quotes/> accessed 11 October 2020. [10] Nathaniel E. Anderson and Kent A. Kiehl, 'Psychopathy: Developmental Perspectives And Their Implications For Treatment' (2014) 32 Restorative Neurology and Neuroscience. [11] Robert D Hare, The Hare Psychopathy Checklist (2nd edn, Multi-Health Systems 2003). [12] American Psychiatric Association, Diagnostic And Statistical Manual Of Mental Disorders (2013). Also Scott A. Bonn, 'Psychopathy: A Clinical Diagnosis' (Psychology Today, 2020) <https://www.psychologytoday.com/gb/blog/wicked-deeds/201610/psychopathy-clinical-diagnosis> accessed 11 October 2020. [13]Ibid. [14] ‘Psychopaths dream in black and white’, in Jon Ronson, The Psychopath Test (Picador 2011). [15] [1975] 61 Cr App R 261. [16]Ibid. [17] [1960] 44 Cr App R 246, [1960] 2 QB 396; [18] 'Ted Bundy' (Crime+Investigation UK, 2020) <https://www.crimeandinvestigation.co.uk/crime-files/ted-bundy> accessed 11 October 2020. [19] Stephanie Nolasco, 'Ted Bundy's Defense Attorney Says Serial Killer Was 'Absolutely Born Evil,' Had A 'Death Wish' In New Doc' (Fox News, 2020) <https://www.foxnews.com/entertainment/ted-bundys-defense-attorney-says-serial-killer-was-absolutely-born-evil-had-a-death-wish-in-new-doc> accessed 11 October 2020. [20] ‘A serial killer unmasked’, in Kent A Kiehl, The Psychopath Whisperer (Oneworld 2014). [21]Id. p.265. [22]Ibid. Also, see Kent A. Kiehl, 'A Cognitive Neuroscience Perspective On Psychopathy: Evidence For Paralimbic System Dysfunction' (2006) 142 Psychiatry Research. It offers a more comprehensive neuroscientific view of psychopathy. [23]Ibid. [24]Ibid. Also read: P Malloy, 'The Orbitomedial Frontal Syndrome' (1993) 8 Archives of Clinical Neuropsychology; and D.T Stuss and others, 'The Involvement Of Orbitofrontal Cerebrum In Cognitive Tasks' (1983) 21 Neuropsychologia. [25]Ibid. [26] Stephen Maren, 'Long-Term Potentiation In The Amygdala: A Mechanism For Emotional Learning And Memory' (1999) 22 Trends in Neurosciences. [27] Joshua W Buckholtz and others, 'Mesolimbic Dopamine Reward System Hypersensitivity In Individuals With Psychopathic Traits' (2010) 13 Nature Neuroscience. [28] Kiehl (n 21). [29]Ibid. [30]Id. pp. 244-245. [31] Nolasco (n 20). [32] See Daniel M. Blonigen and others, 'Psychopathic Personality Traits: Heritability And Genetic Overlap With Internalizing And Externalizing Psychopathology' (2005) 35 Psychological Medicine; Kevin M. Beaver and others, 'The Genetic Origins Of Psychopathic Personality Traits In Adult Males And Females: Results From An Adoption-Based Study' (2011) 39 Journal of Criminal Justice; and, Jari Tiihonen and others, 'Neurobiological Roots Of Psychopathy' [2019] Molecular Psychiatry. [33]Ibid. [34] John Rawls, A Theory Of Justice (2nd edn, Harvard University Press 1999). [35] Read Ormerod and Laird (n 5) 302. Lord Hewart CJ: ‘[a person under an impulse which he cannot control is not criminally responsible] A fantastic theory…which if it were to become part of our criminal law, would be merely subversive.’ Riddell J, a Canadian judge: ‘If you cannot resist an impulse in any other way, we will hang a rope in front of your eyes, and perhaps that will help.’ [36] For instance, read R v Stephenson [1979] QB 695, [1979] EWCA Crim 1. The court recognises the defendant’s difficulties in evaluating the risk associated with a committed act. [37] Helena Kennedy, Eve Was Framed (Chatto and Windus 1992). [38]Ibid. [39] Kiehl (n 21) 241. [40] Scott A. McGreal, 'Are Psychopaths Really Smarter Than The Rest Of Us?' (Psychology Today, 2020) <https://www.psychologytoday.com/gb/blog/unique-everybody-else/201612/are-psychopaths-really-smarter-the-rest-us> accessed 11 October 2020. [41] See Jennifer L. Allen and others, 'Heartless And Cunning? Intelligence In Adolescents With Antisocial Behavior And Psychopathic Traits' (2013) 210 Psychiatry Research. ‘Results contradict the widely held view that psychopathic traits are associated with better than average verbal or nonverbal intelligence.’ Also Fernando Renee González Moraga and others, 'Facets Of Psychopathy, Intelligence, and Aggressive Antisocial Behaviors In Young Violent Offenders' (2019) 10 Frontiers in Psychology. ‘Intelligence, although important for rehabilitation strategies and everyday functioning, is not necessarily pertinent to understand aggressive antisocial or psychopathic behaviours in young violent offenders.’ [42] Ormerod and Laird (n 5) 277. [43] Read MI Gonzalez-Tapia et al (2017). A new legal treatment for psychopaths? Perplexities for legal thinkers. International Journal of Law and Psychiatry Volume 54, September–October 2017, Pages 46-60. https://doi.org/10.1016/j.ijlp.2017.04.004; ‘Public perception…psychopaths are archetypes of evil: incorrigible, remorseless, cold-blooded criminals, whose crimes manifest in the most extreme levels of violence.’ [44] Melanie B. Malterer, Samantha J. Glass and Joseph P. Newman, 'Psychopathy And Trait Emotional Intelligence' (2008) 44 Personality and Individual Differences. ‘…we hypothesised that psychopathic individuals would display lower levels of EI than controls.’ [45] ‘Intelligence’, Oxford English Dictionary (2nd edn, OUP 1989). [46] Lindsey Godwin and Kyle Smith, 'Does The Normal Curve Accurately Model The Distribution Of Intelligence?' (NCUR, 2012) <http://www.ncurproceedings.org/ojs/index.php/NCUR2012/article/view/159/164> accessed 12 October 2020. [47] [1982] 1 All ER 801. [48]Ibid. [49]Ibid. [50] See Jacquelyn Cafasso, 'Average IQ: US, Globally, How It’s Measured, And Controversies' (Healthline, 2018) <https://www.healthline.com/health/average-iq/> accessed 12 October 2020. It is stated the vast majority of the global population (68%) has an IQ between 85 and 115. ‘Very low’ IQ is defined to be lower than 70, present in only a ‘very small fraction of people’. [51]Graham (n 48). [52]Ibid. [53] [1997] 1 WLR 372. See Cafasso (n 51). The IQ of the defendant is 68, with the reading age of a child. Ordinary is defined as ‘what is commonplace or standard’ (‘ordinary’, Oxford English Dictionary (2nd edn, OUP 1989). It is therefore irrational to compare the defendant’s capabilities with the ‘ordinary citizen’. [54] See R v G and another [2003] UKHL 50, [2004] 1 AC 1034. The House of Lords quashed the convictions of the defendants, aged respectively 11 and 12 years during the offence. Lord Bingham stated the rules of Caldwell was unfair, especially when the defendants in question had, owing to their ages, inferior abilities of risk evaluation. This is the court’s attempt of recognising that defendants of inferior intellectual abilities shall not be judged against an objective standard without corresponding contextualisation, i.e. judged against a standard expected of that particular segment of the population. Such recognition is also extended to other branches of law. In McHale v Watson (1966), 115 CLR 199, the majority have ruled that the defendant’s ability in risk appraisal should be judged against the ‘reasonable 12-year old boy’ instead of a ‘reasonable adult’. Within the judgment, it cited the Canadian case Walmsley v. Humenick (1954) 2 DLR 232 (p238), whereby Clyne J. stated: ‘The cases clearly demonstrate, however, that what may be lack of reasonable care in an adult cannot be considered to be so in the case of a child having regard to its capacity to understand and appreciate the nature of its actions.’ He went on to assert: ‘In the present case I have no hesitation in finding that the infant defendant had not reached that state of mental development where it could be said that he should be found legally responsible for his negligent acts.’ The key feature of individuals with relatively low intelligence is that cognitive development may be arrested, or peaks at a subpar level. Many can, in other words, never aspire to reach the state of mental development as stated above. [55] Michael S. Moore, 'Stephen Morse On The Fundamental Psycho-Legal Error' (2014) 10 Criminal Law and Philosophy. [56] Kiehl (n 21) 247. [57]Ibid. [58] Nolasco (n 32). [59] Kiehl (n 21) 245. [60] 'M'Naghten's Case [1843] UKHL J16 (19 June 1843)' (Bailii.org, 2020) <https://www.bailii.org/uk/cases/UKHL/1843/J16.html> accessed 12 October 2020. [61]Ibid. [62] See Domestic Violence, Crime and Victims Act 2004, s 22. Also R v Pritchard (1836) 7 C. & P. 303. The Pritchard Criteria are used to determine whether a defendant is fit to plead. The legal dichotomy concerning ‘comprehension’ is alarmingly unfair. There is a chasm between comprehending basically and well. This does not only concerns defendants with psychopathy, but all with mental health conditions. In addition, psychopaths are particularly unlikely to be protected by provisions where the focus is on cognition rather than decision-making and impulse-control. Prejudices in the courtroom are fuelled by their behaviour during the trial. They might also commit to rash decisions which can jeopardise their case in court. [63] Ormerod and Laird (n 5) 280. [64] [2013] EWCA Crim 223, [2013] Crim LR 923, [20]. [65] (1957) 1 QB 399. [66] Alexander Ng, ‘Ischaemic Posterior Circulation Stroke: A Short Review and Interesting Correlations’ (2019). Unpublished manuscript, University College London.. ‘There are three mechanisms…embolism and atheromatous events over any vessel…’ Arteriolosclerosis is a pathophysiological precursor to ischaemic stroke, where there is reduction in blood supply to brain structures, leading to the ‘disease of mind’. [67] Ormerod and Laird (n 5) 309. [68] Read Luanluan Sun and others, 'Causal Associations Of Blood Lipids With Risk Of Ischemic Stroke And Intracerebral Hemorrhage In Chinese Adults' (2019) 25 Nature Medicine. ‘The results demonstrated positive associations of LDL-C (substance to deposit cholesterol to arterial walls) with IS (ischaemic stroke) and equally strong inverse associations with ICH (intracerebral haemorrhage), which were confirmed by genetic analyses and LDL-C-lowering trials’; and, Tammy Y N Tong and others, 'Risks Of Ischaemic Heart Disease And Stroke In Meat Eaters, Fish Eaters, And Vegetarians Over 18 Years Of Follow-Up: Results From The Prospective EPIC-Oxford Study' (2019) 366 BMJ. ‘In this prospective cohort in the UK, fish eaters and vegetarians had lower rates of ischaemic heart disease than meat eaters, although vegetarians had higher rates of haemorrhagic and total stroke.’ [69] Susanna C. Larsson and others, 'Differing Association Of Alcohol Consumption With Different Stroke Types: A Systematic Review And Meta-Analysis' (2016) 14 BMC Medicine. [70] [1984] AC 156. [71] Roland D Thijs and others, 'Epilepsy In Adults' (2019) 393 The Lancet. [72] Ormerod and Laird (n 5) 298. [73] 'Photosensitive Epilepsy' (Epilepsy Society, 2019) <https://www.epilepsysociety.org.uk/sites/default/files/2020-05/PhotosensitiveepilepsySeptember2019.pdf> accessed 12 October 2020. ‘Around 1 in 100 people has epilepsy, and of these people, around 3% have photosensitive epilepsy.’ [74]Ibid. [75]Ibid. [76] Mind is defined as ‘the faculty of consciousness and thought.’ ‘Brain’ is defined as ‘An organ of soft nervous tissue contained in the skull of vertebrates, functioning as the coordinating centre of sensation and intellectual and nervous activity.’ (‘mind’ and ‘brain’, Oxford English Dictionary (2nd edn, 1989)). As much as Devlin J’s goodwill in clarifying that the law focuses on the former and not the latter in Kemp (n 67), the law has blurred the distinction between the two unnecessarily. [77] Seizures and epilepsy are different. See Robert S. Fisher and others, 'ILAE Official Report: A Practical Clinical Definition Of Epilepsy' (2014) 55 Epilepsia; and, 'Overview Of Seizure Disorder - Summary Of Relevant Conditions’ (Best Practice BMJ, 2020) <https://bestpractice.bmj.com/topics/en-gb/112/> accessed 12 October 2020. ‘A seizure is defined as "a transient occurrence of signs and/or symptoms due to abnormal excessive or synchronous neuronal activity in the brain". Epilepsy is considered to be a ‘disease of the brain’ (quotation mine) defined by any of the following conditions: 1. At least two unprovoked (or reflex) seizures occurring more than 24 hours apart; 2. One unprovoked (or reflex) seizure and a probability of further seizures similar to the general recurrence risk (at least 60%) after two unprovoked seizures, occurring over the next 10 years; 3. Diagnosis of an epilepsy syndrome. Although one can argue that the defect of reason can be attributed to the transient loss of consciousness (thus cognitive impairment) and chronic seizures lead to gradual deterioration of brain structures leading to the law’s ‘defect of reason’ (Gregory D. Cascino, 'Progressive Damage In Epilepsy' (2003) 3 Epilepsy Currents), the law’s position has blurred the boundaries between neurology and psychiatry. There are certainly intersections between the two, but not in the manner the law interprets. Read: R. J Brown, 'Dissociative Psychopathology, Non-Epileptic Seizures, And Neurology' (2000) 69 Journal of Neurology, Neurosurgery & Psychiatry. Patients with dissociative seizures ‘have paroxysmal events that, despite resembling true epileptic episodes, are actually non-epileptic.’ [78] ‘4. Shahina’, in Susanne O'Sullivan, It's All In Your Head (Chatto and Windus 2015). [79]Id. p112. [80]Sullivan (n 71). [81] O’Sullivan (n 80) 111-112. [82] Jeffrey A Lieberman and Ogi Ogas, Shrinks: The Untold Story Of Psychiatry (Weidenfeld & Nicolson). [83] O’Sullivan (n 80). [84] ‘Chapter 18: Threshold Characters’ in D. S Falconer, Introduction to Quantitative Genetics (Oliver & Boyd 1964). [85] There is also a category called drug-induced seizures, whereby certain classes of drugs can produce symptoms of seizures. Read Hsien-Yi Chen, Timothy E. Albertson and Kent R. Olson, 'Treatment Of Drug-Induced Seizures' (2015) 81 British Journal of Clinical Pharmacology. [86] Hypoglycaemia refers to ‘lower than normal blood glucose’; Hyperglycaemia refers to ‘higher than normal blood glucose’. Read 'What Is The Difference Between Hyperglycemia And Hypoglycemia? - Visionaware' (VisionAware, 2020) <https://visionaware.org/your-eye-condition/diabetic-retinopathy/hyperglycemia-and-hypoglycemia/> accessed 12 October 2020. [87] 'Standards Of Medical Care For Patients With Diabetes Mellitus' (2020) 19 Diabetes Care. Diabetes mellitus and diabetes are different in medicine. However, for the sake of simplicity, in this article, I refer the former to the latter. [88] [1989] 1 WLR 297. [89] Diabetes mellitus causes defect of reasoning in two different ways: diabetic ketoacidosis and hyperosmolar hyperglycaemic state. Read: 'Overview Of Diabetes - Summary Of Relevant Conditions | BMJ Best Practice' (Best Practice BMJ, 2020) <https://bestpractice.bmj.com/topics/en-gb/534> accessed 12 October 2020. [90] [1973] 3 WLR 26. [91] BMJ Best Practice (n 91). [92] Kenneth Olden and others, 'Discovering How Environmental Exposures Alter Genes Could Lead To New Treatments For Chronic Illnesses' (2011) 30 Health Affairs. [93] [1990] Crim LR 256. The defendant was raped several days prior to the incident. Rape was considered as an external circumstance which triggered a dissociative state associated with post-traumatic stress disorder (PTSD). However, PTSD and psychiatric illnesses in general, all feature a substantial environmental component. Why are certain patients with an underlying psychiatric condition labelled insane while others are not? [94] Ormerod and Laird (n 5) 295. [95] [1963] AC 386 at 410-412, HL. [96] [1991] 2 QB 92. [97] Ng (n 70). [98] R v Brown [1993] UKHL 19, [1994] 1 AC 212; R v Emmett [1999] EWCA Crim 1710, [1999] No. 99011191/Z2; and, R v Wilson [1996] 2 Cr. App. R. 241. [99] Offences Against the Person Act 1861, s 47. [100] M’Naghten (n 62). [101] Kemp (n 67). [102] Steven Laureys and others, 'The Locked-In Syndrome : What Is It Like To Be Conscious But Paralyzed And Voiceless?' [2005] Progress in Brain Research. Locked-in syndrome is the aftermath of brainstem stroke, with patients unable to perform any motor activities, such as speaking or moving. [103] D W Dodick, 'Thunderclap Headache' (2002) 72 Journal of Neurology, Neurosurgery & Psychiatry. Subarachnoid haemorrhage refers to bleeding into the meninges, the outer layering of the brain. It arises from a ruptured aneurysm of a key cerebral blood vessel. Thunderclap headaches, a direct consequence, are described as ‘severe and explosive headache(s) with peak intensity at onset’. [104] Offences Against the Person Act 1861. s 18. [105] Laurien L. Teunissen and others, 'Risk Factors For Subarachnoid Hemorrhage' (1996) 27 Stroke. [106] AJ Molyneux and others, 'International Subarachnoid Aneurysm Trial (ISAT) Of Neurosurgical Clipping Versus Endovascular Coiling In 2143 Patients With Ruptured Intracranial Aneurysms: A Randomised Comparison Of Effects on Survival, Dependency, Seizures, Rebleeding, Subgroups, and Aneurysm Occlusion' (2020) 366 Lancet. [107] 'Nigel Constable Detained Indefinitely For Killing Mother' (BBC News, 2014) <https://www.bbc.co.uk/news/uk-england-lincolnshire-27344889#:~:text=A%20%22loving%22%20son%20who%20killed,his%20widowed%20mother%20Betty%2C%2079> accessed 12 October 2020. [108] 'Epilepsy Auras | Epilepsy Society' (Epilepsysociety.org.uk, 2020) <https://www.epilepsysociety.org.uk/epilepsy-auras#:~:text=An%20'aura'%20is%20the%20term,into%20another%20type%20of%20seizure> accessed 12 October 2020. An epilepsy ‘aura’ is the warning patients are given before the actual onset of the seizure. [109] Ormerod and Laird (n 5) 291. [110] Ibid. [111] Ibid. [112] 'How I Challenged Stigma' (Mind.org.uk, 2014) <https://www.mind.org.uk/information-support/your-stories/how-i-challenged-stigma/> accessed 11 October 2020. [113] Ibid. [114] 'Our New Study On UK Attitudes Towards Epilepsy | Epilepsy Action' (Epilepsy.org.uk, 2019) <https://www.epilepsy.org.uk/about/blog/2019/our-new-study-uk-attitudes-towards-epilepsy> accessed 11 October 2020. [115] Ibid. [116] Jamie Doward, 'Call To End The Stigma Of Having A Brain Disorder' (The Guardian, 2020) <https://www.theguardian.com/society/2016/jun/25/disability-victims-suffer-bullying-and-teasing> accessed 11 October 2020. [117] Ibid. [118] Bratty (n 100). [119] See Ramon Gilberto González and others, 'The Massachusetts General Hospital Acute Stroke Imaging Algorithm: An Experience And Evidence Based Approach' (2013) 5 Journal of Neuro-Interventional Surgery; and, Michael S Phipps and Carolyn A Cronin, 'Management Of Acute Ischemic Stroke' [2020] BMJ. [120] 'NHS In Crisis, Or Adapting To Change?' (Royal College of Physicians and Surgeons in Glasgow, 2013) <https://rcpsg.ac.uk/documents/media-releases/314-17072013-nhs-adapting/file> accessed 11 October 2020. [121] Mark Dayan and others, 'Is The NHS In Crisis?' (Full Fact, 2017) <https://fullfact.org/health/is-nhs-in-crisis/> accessed 11 October 2020. [122] Ormerod and Laird (n 5) 288. [123] BBC News (n 114). [124] Ormerod and Laird (n 5) 291. [125] Seena Fazel and Jacques Baillargeon, 'The Health Of Prisoners' (2011) 377 The Lancet. These include depression, psychosis, personality disorders and substance abuse disorders. [126] 'Healthcare In Prison' (Rethink, 2020) <https://www.rethink.org/advice-and-information/rights-restrictions/police-courts-and-prison/healthcare-in-prison/> accessed 11 October 2020. [127] Seena Fazel and others, 'Mental Health Of Prisoners: Prevalence, Adverse Outcomes, and Interventions' (Lancet Psychiatry, 2016) <http://dx.doi.org/10.1016/S2215-0366(16)30142-0> accessed 11 October 2020. [128] Ibid. [129] Ibid. [130] Ibid. [131] Adeeba Kamarulzaman and others, 'Prevention Of Transmission Of HIV, Hepatitis B Virus, Hepatitis C Virus, And Tuberculosis In Prisoners' (Lancet, 2016) <http://dx.doi.org/10.1016/S0140-6736(16)30769-3> accessed 11 October 2020. [132] American Psychiatric Association (n 13). [133] Morse (n 56). [134] Ormerod and Laird (n 95). [135] Id. p309. It is ‘confusing’ since the condition can still be ‘recurrent’, thus harming society according to the reasoning of the aforementioned judges. The sole difference is the source of the disorder. [136] Kiehl (n 21). [137] People v Yates, 168 Misc 2d 101. [138] King Jr, M.L. 1963. Letter from a Birmingham Jail [King, Jr.]. African Studies Centre, University of Pennsylvania. [Online]. [Accessed on 9 October 2020]. Available from: https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html.
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