Citation(2008) 20 SAcLJ 662
Date01 December 2008
Published date01 December 2008

This discussion explores some difficult issues concerning the interaction of law and psychiatry in the context of the defence of diminished responsibility in murder trials. It suggests that the uncertainty of the science, and of the criminal law, combine with certain rules of criminal procedure and punishment to create a situation where mentally abnormal accused persons who kill are put through an unnecessary life and death gamble in the criminal process. It ends with a plea to both the legal and psychiatric professions to pause and think of more creative and acceptable ways to deal with a defence of mental abnormality to a charge of murder.1

I. A moment of anguish

1 Some of the most disturbing cases a student, teacher, observer or practitioner of the criminal law will ever have to come across have to do with murder prosecutions where a plea of diminished responsibility is raised. Someone, for no particularly convincing reason, kills another. A government psychiatrist testifies on oath for the Prosecution that the accused is not suffering from any serious mental illness. A defence psychiatrist swears to the opposite — that the accused was indeed labouring under a serious mental disorder. The judge, torn between two experts, and not a psychiatrist himself, has to decide one way or the other — and he does so almost invariably in favour of the psychiatrist called by the Prosecution. The Defence fails. The accused is duly convicted of murder and condemned to die.

2 One cannot help but feel a sense of anguish. It is true that someone has been killed and society is rightly concerned. But the person punished and executed for it appears to have done so under

circumstances in which, apparently, no normal person would have killed. Nor is there normally any serious attempt to escape detection and capture by the police. Examples from the law reports abound: the domestic maid who killed her friend because she would not take some rather inconsequential things back to their home country for her;2 the soldier who shot his superior officer to death for inflicting a relatively minor punishment for a military infraction;3 the man who stabbed his sister-in-law to death because she had made sexual advances and “nagged” him;4 the person who killed brutally in order to get a Rolex watch to give his girlfriend.5 The record for the defence psychiatrist winning the day was, until very recently, especially dismal.6 In two recent cases, G Krishnasamy Naidu v PP7 and PP v Juminem,8 the courts created quite a stir by ruling in favour of a plea of diminished responsibility notwithstanding the testimony of the prosecution psychiatrist. But has anything really changed?

II. “Substantial impairment”: ambiguous but inevitable?

3 Although the seemingly more potent defence of “unsoundness of mind” still exists,9 it has been virtually eclipsed by “diminished

responsibility”,10 a defence introduced much later into the Penal Code.11 Unsoundness of mind, also referred to as insanity,12 is a defence to any criminal charge, and the result of a successful plea is an acquittal. Yet it is not difficult to understand why it has been almost abandoned.13 The acquittal here is not like any other — it entails indefinite detention “at the pleasure of the President”. This is a cure worse than the disease,14 unless it is a capital charge the accused is facing. Quite apart from this, it has proven to be almost impossible to establish the primary requirement of the defence — the mental disease must have caused in the accused an incapacity of knowing what he or she is doing, or that it was “wrong or contrary to law”.15 This exclusive reference to what appears to be total destruction of cognitive capacity is so particular and so extreme that it is, as a matter of defence strategy, never used in a murder charge in preference to diminished responsibility. It is more difficult to establish than diminished responsibility and the result of a successful plea is not clearly more advantageous, for the accused can hope that in course of sentencing in a successful diminished responsibility defence, the court might give something rather more palatable than indefinite detention.16

4 The focus then shifts to diminished responsibility — what does it mean? Essentially there are two elements — a condition and a consequence. The condition is that the accused must be suffering from an “abnormality of the mind”, and the consequence it must have on the accused is that this condition is such that responsibility for his or her actions is “substantially impaired”.17 The first element has come to require, at least, some credible professional opinion that the accused is suffering from a recognisable psychiatric disorder. The disorder must have been described, categorised and named by the psychiatric profession. This is the law’s way of managing the need to distinguish between serious and frivolous claims of mental disability. There are problems with these requirements (discussed below) as they have to deal with how abnormality of the mind is to be proved, rather than what it means. It is the second element which is more difficult to pin down. One is immediately struck by how vague this formulation is. It is difficult to imagine any other defence being couched in this open-ended fashion. First, what is clear is that the straightjacket requirement of total impairment of the cognitive faculties (found in unsoundness of mind) is gone — and that opens the door to other kinds of impairment — principally, volitional impairment. This, it appears, is crucial — for time and again we see from the reported cases that it is agreed by all that the accused knew what he was doing and that it was wrong, but because of some mental disorder, it is argued by the Defence that the accused could not exercise self-control to a normal degree.

5 The problems begin when we try to unpack the substantial impairment element. Logically, we first need to know with a reasonable degree of precision the manner in which, and the degree to which, the mental disorder has in fact affected the accused’s ability to exercise self-control. This is properly the province of expert psychiatric testimony. Putting aside the complication that in the difficult cases experts will flatly contradict one another, even if there were only one expert to consider, how can we expect him or her to formulate a helpful answer? Self-control is not measurable in discrete units, and it is difficult to expect the expert to use terms other than those of unhelpful generality —“a lot”, “a little”, and the like. More than that, it would seem that the state of science is such that the mechanics of self-control are not sufficiently understood to enable experts to say with any degree of confidence how (and to what degree) a particular mental illness has affected the power

of self-control, except perhaps for the clearest of cases. The court has sometimes said that the line is between “could not resist” and “did not resist”, albeit admitting that the distinction is difficult to draw in practice.18 Even if the matter is as conceptually simple as this, it is not clear that the psychiatrist has the tools to be able to say that it was one or the other in the borderline cases. However, the situation is a little more complicated than this as the defence does not require a total loss of self control, only a substantial one. Thus, an impulse which is substantially more difficult for the accused to resist because of mental disorder is enough, although it may be that with Herculean effort, he or she may be able to resist it. Here is where the psychiatric uncertainty merges with the legal ambiguity — when does impairment become substantial? Courts over the years have appealed to “common sense” and the like,19 but is there any common sense about such patently uncommon situations? Judges, presumably, have little personal experience with mentally disordered people who kill. More than that, we are all painfully aware that the level of self-control one can expect varies enormously from one person to the next. To one who is not given to jealousy, even a little jealousy is substantial. To one who is rather more prone to it, a lot more is required to attain that label.

6 It is painful to see the courts struggling with these twin uncertainties: prosecution counsel pressing psychiatrists to explain with a high (and scientifically unreasonable) degree of precision exactly how a particular mental disorder has affected self-control; and judges and lawyers asking psychiatrists to declare whether there was substantial impairment.20 But neither the lawyers nor the psychiatrists are to be blamed, for the law appears to force them to behave in this way. Is there a solution? It is doubtful that if an easy answer to our problems were at hand, it would not have been implemented already. The root of the problem is beyond the law and lies in our deep ambivalence about what a psychiatric disorder really is, and the extent to which it ought to excuse — or to be trite — our inability to resolve the question of when someone is mad and not bad, and when he is not mad and merely bad. On the one hand, we are not prepared to abolish the mental disorder defences entirely21— we have the instinct that there is something to be said for treating mentally abnormal people with more compassion than normal. On the other hand, there is the concurrent fear that we might be lumping the mentally disordered with the simply evil offender. It is

often the case that a particularly brutal and senseless killing invokes in us, at the same time, both condemnation — of someone who can be so evil as to do such a thing — and compassion — that no sane person would have behaved in that fashion. Thus, the law strikes a compromise and draws a line vague enough to evolve with changing conceptions of what mental disorder is and when it ought to excuse. Happily or unhappily, that is perhaps the best we...

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