The Insanity Defence: International and Comparative Perspectives
Authors: Ronnie Mackay & Warren Brookbanks
Publisher: Oxford University Press, 2022. 416 pages.
Reviewer: Lea Johnston | June 2023
Too often, the perspectives of criminal law theorists and policymakers are limited by the scope of our experience. Consequently, while we may identify shortcomings in our countries’ current approaches, we lack vision in how best to address them. The Insanity Defence: International and Comparative Perspectives, a thoughtful compilation edited by Ronnie Mackay and Warren Brookbanks, seeks to expand our conceptual horizons by providing a comparative overview of the insanity defense in a dozen common and civil law jurisdictions. This impressive work, generated by leading scholars around the globe, is a significant contribution to comparative criminal law and no doubt will be a cherished reference for years to come.
The Insanity Defence provides a granular review of the evolution and operation of the insanity defense in twelve countries and under international criminal law. Empirical studies deepen the analysis. In addition to enriching our knowledge of the operation of the defense, this ambitious book identifies and offers thoughtful responses to current controversies. It showcases a range of responsibility models reflective of countries’ priorities, cultures, and views on the competing demands of punishment, public safety, and rehabilitation.
The book starts, as it must, with the M’Naghten rule. In Chapter 2, Mackay provides a pithy and useful exposition of the general rule setting forth the insanity defense, its narrow interpretation in English law, its application over time, and targets for reform. Chapter 3, authored by David Ormerod and Mark Dsouza, dives deep into the failed law reform effort of the Law Commission for England Wales (LC). Although the LC’s 2013 discussion paper included many “carefully considered, detailed, and far-reaching reforms,” none were adopted nor likely will be soon, apparently (p. 49).
Chapters 4 through 8 demonstrate the endurance—but steady erosion—of the M’Naghten rule as common law countries identify shortcomings and experiment with various reforms. Gerry Maher reviews the reform process of the Scottish Law Commission, which culminated in statutory reform in 2012. Paul McCutcheon recounts Ireland’s two stages of judicial reform and ultimate statutory codification in 2006. Ian Freckelton examines the array of standards that exist across Australia. Gerry Ferguson’s chapter on Canada demonstrates the resilience and adaptability of M’Naghten as courts’ interpretations of key terms expand and contract over time. Finally, New Zealand has retained the M’Naghten rule largely in its original form for the last 127 years without significant debate. In his chapter on New Zealand, Brookbanks identifies sources of potential challenge posed by methamphetamine-induced psychosis and the Convention on the Rights of Persons with Disabilities (CRPD).
Chapters 3 through 8 provide a range of procedural and substantive options for other jurisdictions interested in reform. They convey a diversity of interpretations of traditional M’Naghten elements that could be useful for evolving case law. These chapters also offer insight into important in-country debates, including the distinction between sane and insane automatism and the role of prior fault. Only a subset of countries has begun grappling with the implications of the CRPD, which calls for broad changes to compulsory detention and possibly abolishment of the insanity defense itself. The authors’ thoughtful suggestions for how to resolve current controversies, such as the defense’s treatment of independent substance-induced mental disorders, are one of the strongest aspects of these chapters. I hope that Ferguson’s revelation of the long stints of supervision that follow an irresponsibility verdict, despite acquitees’ low rates of recidivism, will inspire examination and possible reform. I suspect his insight extends past the Canadian border.
In Chapter 9, Stephen Morse raises the specter of a world without the insanity defense by examining recent state actions and case law within the United States. Morse exposes the “massive” flaws in the reasoning of the U.S. Supreme Court’s Kahler decision (p. 211). This case held that legal insanity is not a fundamental principle of justice and thus may be (effectively) eliminated. In so doing, Morse usefully distinguishes between the mens rea and insanity defense, an enduring source of confusion.
The chapters on the M’Naghten rule and its evolution in common law countries are enlightening, but some tread on familiar terrain. Perhaps a future compilation might include examinations of how understudied common law countries, such as India and Ghana, employ the M’Naghten rule.
In my view, the most important aspect of The Insanity Defence is its illumination of the responsibility structures of five civil law countries (Chapters 10–14). The chapters on ‘the insanity defense’ in France, Germany, the Netherlands, Norway, and China increase our knowledge base and expand our conceptual horizons. A wealth of material appears in these (as in other) chapters. Particularly notable is material on unique responsibility structures, partial responsibility, and responses to prior fault. In this regard, the framing of the book’s core subject as ‘insanity’ instead of ‘criminal nonresponsibility’ is a bit unfortunate. The narrow concept of insanity is ill-aligned with the conceptualization of criminal responsibility in some countries and does not invite a full exploration of partial responsibility, among other matters.
The fantastic chapter on France, by Audrey Guinchard, increases the body of knowledge available to English readers. Guinchard provides an interesting overview of the evolution of France’s defense (which encompasses insanity, automatism, intoxication, and diminished responsibility) over four centuries. Guinchard discusses the origin and effect of ‘attenuated’ (diminished) responsibility and explains France’s approach to prior fault. After the Supreme Court in Halimi rejected prior fault in insanity law, Parliament reacted by excluding the defense, both for abolished and attenuated responsibility, where the defendant “voluntary consumed psychoactive substances with the objective to commit the offense or similar” (p. 244). This approach respects mens rea principles and is reminiscent of Paul Robinson’s 1985 proposal: a person “may be properly punished if his liability is based on his initial conduct in causing the justifying circumstances and on his culpable state of mind, at that time, as to causing the justified harm” (Robinson, 1985, p. 28).
Germany, as portrayed in the excellent chapter by Regina Rauxloh, also recognizes diminished responsibility. Germany employs an interesting response to prior fault: when a person voluntarily becomes intoxicated and commits an unlawful act while in that state—but cannot be punished for the unlawful act because they lacked criminal responsibility due to the intoxication—they will receive a punishment of up to five years imprisonment or a fine (p. 258). To remedy injustice for more serious offenses committed while voluntarily intoxicated, the country draws upon the principle of actio libera in causa. However, this principle only permits attribution of culpability for result crimes where the type of offense was foreseeable.
The Netherlands and Norway—chapters authored by Gerben Meynen and Linda Gröning, respectively—employ radically different responsibility structures. (Spain and Chile would have provided other interesting structural variants.) The Netherlands employs an “open norm”: no legal criteria specify the conditions under which the presence of a mental disorder supports an insanity plea (p. 280). In practice, Mayen explains, relevant factors include cognitive and volitional incapacity, the causal relationship between the disorder and the crime, and the degree that non-pathological motives influenced the act. Until 2016, the Netherlands recognized five grades of responsibility; recently, that number was reduced to three as the categories involving diminished responsibility were consolidated into one. Interestingly, it is unclear what purpose is served by diminished responsibility in the Dutch criminal justice system: it is irrelevant to whether a defendant can be punished, carries no necessary mitigating effect, and is unnecessary for a hospital order.
Norway is unique in following a medical model, where “insanity is identified exclusively with a medical or biological condition” (p. 300). According to this model, no necessary connection need exist between the defendant’s mental condition and their criminal act. Following the Breivik case, the criterion ‘psychotic’ was removed in 2020 and replaced with the more nebulous ‘severely deviant state of mind.’ However, psychosis remains central and insanity is still determined by the severity of the defendant’s mental condition. Unlike many other civil law countries, Norway does not recognize diminished responsibility.
Lilou Jiang’s chapter on the insanity defense in China offers an important window into an understudied topic and region. Like many other civil law countries, China recognizes both cognitive and volitional incapacity, as well as partial responsibility. Use of the insanity defense in China is impacted by the judiciary’s primary charge to maintain social harmony and stability. Accordingly, psychiatric assessments may be denied to defendants in high-profile homicide cases to prevent their acquittal. Unlike other countries, family members are legally obligated to supervise and care for those found nonresponsible. Compulsory medical treatment is rarely ordered.
The greater context for this book, of course, is that carceral facilities are our ‘new asylums.’ Evidence suggests that some civil law countries employ partial responsibility, like total insanity, as a means both to protect society and to increase access to treatment. I would have been interested to learn more about these aspects of diminished responsibility as well as why, in contrast, many common law countries do not extend partial responsibility beyond the context of homicide. These questions may stretch beyond the book’s scope, however.
The compilation ends with Ian Freckelton and Magda Karagiannakis’s foray into the unsettled area of international criminal law. Only the Rome Statute of the International Criminal Court has an explicit insanity standard. International law fails to provide for preventative psychiatric detention after an acquittal on grounds of insanity, a failing that risks the legitimacy of proceedings and may make judges less likely to recognize meritorious defenses.
The Insanity Defence: International and Comparative Perspectives is an excellent resource. The variety of substantive and procedural standards discussed here should spur reflection and debate on the future direction of the defense. The granular detail on countries’ approaches to vexing, common problems could assist in the development of policy. I hope Mackay and Brookbanks will commission a second volume to expand our knowledge of other jurisdictions. Expanding scholarly focus to understudied regions with greater ethnic diversity will advance the global conversation on this unique defense and the greater subject of criminal responsibility.
References
Paul H. Robinson, Causing the Conditions of One’s Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 Va. L. Rev. 1 (1985).
Lea Johnston is the University of Florida Research Foundation Professor (2020–2023), and a Professor of Law at the University of Florida, Levin College of Law.
