Mental health law varies by country, even within the UK. As soon as you start comparing mental health laws in non-British countries with our own approach you see even more ways to that such complex matters are handled. In Germany, the courts play a far greater role in psychiatric admission than in the UK where they are usually not involved at all. As if that’s not enough, where a person’s mental health becomes relevant to criminal proceedings it all moves up one or two more notches and as Professor Jill Peay noted (in Mental Health and Crime, 2010) the work done at the interface of mental health and criminal justice is amongst the most challenging of all.
The Court of Cassation in Paris, France’s highest court, has recently ruled that a man who admitted killing a woman in her sixties will not stand trial. Kobili Traoré admits killing Sarah Halimi in 2017 by beating her and then throwing her from the window of her third-floor Paris apartment in what was described as an “anti-semitic frenzy”. Psychiatric reports stated that he was in a condition of acute mental delirium, brought on by his own consumption of cannabis. Lower French courts had rejected demands for a trial and the victim’s family appealed against this ruling. Even the French President Emmanuel Macron made a personal intervention to say the case should have its day in court and and top Magistrates criticised the President’s intervention as debate continued about whether French ‘insanity’ law is fit for purpose.
What emerges from the Court of Cassation’s ruling is a judgment which affirms the lower French court did apply the law correctly (whether or not the law is fit for purpose). It noted “a person is not criminally responsible if suffering, at the time of the event, from psychic or neuropsychic disturbance that has eliminated all discernment or control” over their actions.
If you’re familiar with British law (in any UK country) you’ll have read this and wondered about both voluntary intoxication and insanity. Firstly, it’s a basic tenant of criminal law in the UK that voluntary intoxication by drugs or alcohol will usually not be a defence to an allegation. Most officers have interviewed people the morning after the night before to find them saying “I’ve got no idea, mate – I can’t remember anything after about 9pm because I was legless” or similar. The same would potentially apply to drug intoxication if you were driving whilst intoxicated by drugs, for example.
But what if the intoxication is so acute that it induces not only problems of memory, but involuntary actions and / or a severely altered mental state, like psychosis where it prevents you knowing what you’re doing … could that amount to insanity, in UK law?! In short, no – although it’s complex and it wouldn’t surprise me if future cases involved arguments that were appealed. CPS legal guidance on intoxication doesn’t specifically mention insanity, but it does mention automatism – you cannot claim a defence of automatism (ie, involuntary actions) where voluntary intoxication induced the state giving rise to the automatous actions.
In any event, in UK law, because insanity findings can give rise to various orders under the Mental Health Act 1983 which can only be imposed in criminal courts (and in part to ensure all the legal and medical arguments are properly considered ahead of findings), prosecution could occur in relevant situations so the courts can untangle it all. For what it’s worth, M. Traoré has been detained in a psychiatric unit since the killing and for me, that raises as many issues as the question of prosecution if the contention surrounds a temporary mental state affecting by drug intoxication.
As you might imagine, the failure to prosecute and try someone who admits a hate-killing whilst acting under the effects of controlled drugs they chose to take has proved controversial and there have been public demonstrations in Paris after the lower court rulings. Francis Kalifat, the president of the Representative Council of Jewish Institutions in France, said, “From now on in our country, we can torture and kill Jews with complete impunity.” Francis Szpiner, a lawyer for Ms. Halimi’s children, said it was “troubling and unjust” that the law fails to take account of “the origin of the mental state” behind the crime — in this case, drug use. I have more sympathy with the latter point than the former: it’s fairly obvious this does not create the impunity suggested because this particular case hangs on drug consumption and psychiatric evaluation. Without the drug consumption or the psychiatric report, it seems straight-forward no-one would be arguing about a lack of criminal responsibility and a trial would have occurred if someone killed or tortured anyone!
But as I’ve said, this case interested me because of the contrast with UK law. Where a killing occurred and was admitted, there would still be a prosecution, not least because criminal courts here have those powers which mental health professionals don’t have. In a case such as this, we would almost certainly see a murder prosecution and a trial, there would be legal argument about the act done, the mental state and any potential claims to defences, etc.. There would be psychiatric reports and the court would then reach one of several verdicts: guilty of murder, guilty of manslaughter (probably on the grounds of diminished responsibility, but it could be on other grounds) or verdict of insanity. These are quite rare, but they do happen: insanity in the UK (and in various jurisdictions around the world which are based more-or-less on the English common law system) means that someone “did not know what they were doing or did not know what they were doing was wrong” because of their mental state.
France’s highest court said their law, as currently written, does not distinguish between the reasons for a person’s condition and the even someone who enters a delirious state because of voluntary drug use cannot be tried. “The judge cannot distinguish where the legislator has chosen not to make a distinction,” the court said in a statement despite one of the family’s lawyers arguing the law was aimed at psychiatric disturbance, “not the consumption of narcotics or alcohol.” It is interesting to note that one of the three psychiatrists who wrote expert reports argued the suspect’s mental state was merely altered and that prosecution could occur – the other two argued his mental state was a barrier to prosecution.
The whole problem for this debate and worth bearing in mind because it’s what precisely prompts me to write this post: acute intoxication by cannabis is a recognised mental disorder (irrespective of whether any criminal actions result). Sounds weird, doesn’t it?! In all fairness, acute intoxication by any number of substances (including alcohol, psychoactive agents and indeed coffee!) are all listed in the World Health Organisation’s International Classification of Disease (ICD-11) and in the Diagnostic and Statitics Manual (DSM5). Whether or not we like it or agree, the medical professions state, if you will, that “this is a thing”.
You may remember from a few years ago a Coroner’s case in Wiltshire where a man was found by the police in a condition of acute intoxication and an ambulance was called. Between the officers and the paramedics, they contrived to take no action to ensure his wellbeing and a Coroner’s jury concluded that this amounted to neglect. As part of those proceedings, expert evidence was heard from a psychiatrist who had been asked by the Coroner to consider whether acute intoxication by alcohol was a mental disorder for the purposes of the Mental Health Act and, by extension, whether his presentation could have led to officers considering application of s136 MHA to remove him to a Place of Safety, for safeguarding until sober.
The French case shows the ongoing evolution of how the societies and the law regard psychiatry, mental health and concepts of mental illness. It reinforces why simplistic ideas of ‘mad’ or ‘bad’ are problematic and how different countries treat these issues. It should be borne in mind, the courts in France play a bigger and different role during the investigation stage which here would be fulfilled by the police and the Crown Prosecution Service. So there is also a problem of comparisons between systems: the fact the French system did not direct a full criminal trial, does not mean it went nowhere near a court. There was an investigating Magistrate involved and a lower court reaching a judgment based on three psychiatric reports. French senators are now considering whether the law is fit for purpose – history obviously had a group of French senators who once thought it was and it shows how we are still evolving our thinking about this stuff in the 21st century.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown OBE, 2021
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk