The Court of Appeal (criminal division) recently issued a judgement in R v Keal (2022), all focussing on the meaning of the word “wrong”, in the legal definition of insanity. A little history for those who are not aware of the background: in the nineteenth century, the M’Naghten Rules defined what it means to be legally insane and this has formed the basis of English law ever since, indeed it went on to influence insanity law and many other jurisdictions as well. If you want to read more detailed background on all that, my original post on insanity is available. I’ll assume you’ve now read this or know the topic, in terms of what follows.
On 22 June 2021 in the Crown Court at Winchester, Mr Keal was convicted of three counts of attempted murder and was sentenced to a restricted hospital order under section 37/41 Mental Health Act 1983. The appellant having put forward a defence of insanity which was rejected by the jury, he appealed against his conviction for the offences on the basis the trial judge erred in law when he legally directed to the jury on insanity law. The psychiatric evidence suggested the appellant knew what he was doing was both unlawful and morally wrong. The judge had directed that if the jury accepted that evidence, the defence of insanity would not be available to him — so he was convicted.
This very recent appeal centred on his defence argument that this wasn’t the full picture: in addition to touching on what the “wrong” means; there was substantive debate about whether more needs to be considered even where a jury is satisfied a defendant knew what he was doing and that it was was “wrong” – did the defendant have ‘agency’ to resist command instructions which directly resulted from his condition? So – does “wrong” just mean legally wrong or does it include morally wrong; and is that enough to prove or is there more about ‘agency’? I would encourage anyone who wants to understand this properly to read the Court’s judgment – it’s interesting in its own right and only fourteen pages. This summary is inevitably and unapologetically, a little simplistic, intended mainly for those who don’t want or need the detail on it with the hyperlinks to the original material for those who do.
The legal issues for the Court of Appeal hinged on whether there should be a “narrow” or a “broad” concept of the insanity defence. This distinction was the way the appellant’s defence counsel presented it to the court: on a narrow conception, as was directed by the original Crown Court judge, the jury would have to decide whether the defendant knew his actions were legally and morally wrong. Full stop. This makes no mention of any capacity to control oneself whilst experiencing psychotic delusions and the psychiatric experts all agreed Mr Keal was experiencing them at the time of the attacks, believing himself to be acting in response to the devil.
His counsel’s submission to both the Crown Court and the Court of Appeal were substantially similar: that a broader conception of the insanity defence could and should be taken and that Mr Keal should be found not guilty of the offences by reason of insanity, as a matter of law. The Court of Appeal was asked to rule that the trial should have taken in to account the question of ‘agency’, in other words, was Mr Keal able to resist the command instructions caused by his delusions? He argued the jury should have been directed that this was relevant and that an inability sits along side any assessment of whether he was capable of knowing whether what he did was wrong.
This all touches on something worth noting: the UK law on insanity has been under review for many years. Since those nineteenth century M’Naghten Rules, there has been legislation from Parliament to further refine things. We saw the Criminal Procedure (Insanity) Act 1964 and even more recently legislation in the Coroners and Justice Act 2009 refined the law. In addition, the Law Commission has been doing work on this for years – I can remember attending seminars more than a decade ago, where it was made clear this is being looked at. This case in the appeal ruling literally lays clear how the argument arises from the ongoing attempts to make nineteenth century law fit twenty-first century conceptions of mental illness and its relationship to criminal responsibility. The Appeal justices themselves stated that the appeal seeks the Court to quite significantly expand the scope of insanity law.
Those who’ve read this blog for a while will know that when the topic comes up about criminal responsibility amidst serious mental distress, I have a horror of the word ‘capacity’. We often hear the question asked, “Does he have capacity to commit the offence?”, or similar. I’ve written elsewhere why this is a nonsense question and was pleased whilst working on policy around this to get the CPS to address it as such in their guidance on prosecution of defendants with mental health problems. In this particular judgment, the word appeared just at the point where the judges were talking about issues of ‘agency’ over decision-making and the whole appeal judgment is consumed with the defences submission that it’s legally relevant to talk about whether an mentally ill offender had a ‘choice’ or had ‘capacity’ to resist any delusional command instructions.
Because of my horror of the word (due to how much I think it subverts good investigative decision-making), I paused and breathed deeply when this word was used more than once in the final third of the ruling. It was mainly used in respect of discussion of the appellant’s ability to resist command instructions, rather than in connection with any ‘capacity’ to know right from wrong – this is another reason why using this word in this context becomes problematic: although ‘capacity’ is a legal word (the Mental Capacity Act 2005 – shortly to be amended by commencement of the Mental Capacity (Amendment) Act 2019, incidentally!), it’s not a word that is a fundamental of criminal law. Prosecution remains a matter of actus reus and mens rea, subject to any defences such as insanity and this ruling is about reinforcing the narrower concept of insanity, as described by Mr Keal’s counsel.
The punchline: where a defendant is charged with an offence and the insanity defence comes up for consideration in court, the person “knew what they were doing is wrong” if they know the action would be both legally and morally wrong and whether they are believed to have had any choice or ‘agency’ around delusional command instructions isn’t a relevant point as the law currently stands. It’s a matter for Parliament if they decide to change it in the future.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.(c) Michael Brown, 2022
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