ABSTRACT
The fi nal chapters of the book take some specifi c examples of problematic areas to illustrate the lack of compatibility between the various concepts linking mental disorder and crime. First, there is the issue of unfi tness to plead, which attempts to fi lter away those from the criminal justice system who cannot fairly be tried according to criminal justice precepts. Second, the problem that DSPD highlights for those who would wish to medicalise all forms of deviance for therapeutic precepts and endeavours. And third, the narrow ambit of our mental condition defences and curious rules on automatism which lead in part to a number of absurdities in the criminal law; one example would be ‘sleepwalking defences’ where the criminal law’s requirement for mens rea to be satisfi ed before a criminal conviction can be returned in non-strict liability cases has resulted in such offenders being classifi ed under the insanity provisions. None of these have a happy outcome but each illustrates the tensions at borderlines where problem situations are squeezed into inappropriate or artifi cial categories. If it were the case that mental disorder caused crime, or indeed that crime caused mental disorder, the logical consequences of these associations, although problematic, would at least be clear: treat the mental disorder, absolve perpetrators of criminal responsibility, and recognise the health consequences of punitive interventions. But the earlier part of this book endeavoured to illustrate that such easy associations cannot be justifi ed in the vast majority of cases. Hence, the issue of what consequences should rightly follow is much more complicated. Mental disorder and offending behaviour can exist within the same individual without there being any pertinent interaction between the two; indeed, it may even be possible (as evidence emerging from the MacArthur studies on mental health courts, and of probation services, appear to indicate) to offer services designed to assist those with mental health problems that are associated with reductions in their subsequent criminal justice involvement, without there being any noticeable reduction in their psychiatric symptomatology.1 Or there
may be partial overlap between mental disorder and offending behaviour with some limited correlations; and in some circumstances the link between the two may be irresistible. But such explanatory associations, albeit limited, are not the end of the story, since questions also arise, for example, about how the integrity of one domain – the criminal justice process – can be sustained in the context of offenders with serious mental health problems. Is it possible to have a fair trial when a perpetrator has a disabling mental illness? Is it right to punish someone who has been held culpable of the offence, but whose mental disorder makes conventional punishment an anathema? And the range of disorders and offences make the presentation of overlap peculiarly problematic. Should those with learning disability who have seriously offended be detained in a health or penal setting? Should those with serious mental disorder who have offended repeatedly in a particularly brutal fashion be confi ned in a psychiatric hospital or a prison? And it is important to recall that these are not issues that relate only to a small number of offenders. As Lord Bradley’s Report (2009:98) notes, eight per cent of the general population scores within the learning disabled or borderline group and, when one looks at the concentration of those with learning diffi culties within custodial populations, he asserts that ‘20-30 per cent of offenders have learning diffi culties or learning disabilities that interfere with their ability to cope within the criminal justice system’. Quite what the implications of this are for the fairness and justice of their convictions in the preceding stages of assessing culpability are not clear; but they are unlikely to have been favourable. As matters currently stand, most perpetrators are convicted without these issues relating to their cognitive capacities being properly explored: indeed, most perpetrators, for whatever reason, plead guilty, making any thorough examination of their mental state at the time of the offence or at the time of trial unlikely. And the fact of conviction, with all that it entails about culpability, allows greater fl exibility about the place of detention; in short, penal disposal is not unlawful, as it would be for those not held criminally culpable. Indeed, conventional punishment can only follow a criminal conviction. For those who are not convicted, arising as a result of a fi nding of not guilty by reason of insanity or for persons who are found unfi t to plead, or where the Magistrates invoke their power to impose a hospital order where they are satisfi ed that ‘the accused did the act or made the omission charged’ (s 37(3) MHA 1983) without convicting them, only a health disposal will be justifi ed; and even that may not be permitted where the grounds for admission are not met. In those cases, community disposal becomes the only option. With the amendments to the MHA 1983, and the broad defi nition of mental disorder it promotes, it is possible that Magistrates’ Courts could fi nd themselves invoking their s 37(3) powers more frequently. Before the amendments, this option only applied to accused persons suffering from mental illness or severe mental impairment; now it applies to all those suffering from
mental disorder, that is, including those with personality disorder. This potential expansion in eligibility does not apply to either unfi tness to plead or a fi nding of not guilty by reason of insanity as both are common law tests and both are so narrowly drawn that few defendants fall into them. However, with the current review of these two areas by the Law Commission this may change. It is right that it should since, as was detailed in the earlier chapters, the incidence of mental disorder and learning disability in prison (Singleton et al, 1998) would indicate that neither unfi tness nor insanity are currently fi t for purpose (Loughnan, 2011). But if either or both tests were broadened, the disposal options, in the sense of excluding punitive or criminal justice ‘rehabilitative’ options like the community order, would be accordingly more limited. There are also questions that can be asked that go beyond the conventional ‘is this person fi t to plead or be amenable to deterrence or rehabilitation?’ to embrace ‘is this person fi t to plead guilty and are they fi t to be punished?’ That mentally disordered offenders straddle awkwardly the arrangements for dealing with both offenders and those with mental health problems has been long known: that it leads to problems with the medicalisation of offending, the criminalisation of deviance and the undermining of both the values of the mental health and criminal justice system is equally well established. The pollution of the acceptability of punishment by including within its ambit those mentally disordered offenders of dubious culpability, and the similar pollution of the purity of medical imperatives, of benefi cence and the avoidance of harm, are both problematic, albeit in different ways. Forensic psychiatrists, falling as they do on these borderlines, have grappled with the ethical dilemmas that arise from their tangential involvement with punishment and also with the assessment of the likelihood of future offending. These issues entail real dilemmas, for example, in respect to their clinical responsibilities in such areas as patient confi dentiality. Yet it is only relatively recently that more strenuous efforts have been made to think about effective solutions to these problems. Two initiatives are worth mentioning, since they tackle the problems from slightly different angles. First, the issue of pre-trial diversion. In this country, whilst issues relating to the offender’s mental state have primarily been dealt with after conviction at the point of disposal, and the legal provisions for complete diversion away from the criminal justice process at this point are in many respects admirable, there has been considerable anxiety about the need to avoid even this degree of involvement with the criminal justice process. Hence the development of assorted diversion schemes, both before and at court, which shift alleged offenders into the health system at a variety of points in a relatively informal manner. These have been recently reviewed by Lennox et al (2009) and by the Sainsbury Centre (2009); they have also been promoted by Lord Bradley’s Report (2009). The savings in costs, both human and fi nancial, that such schemes can deliver make their
relative neglect curious. Second, the mental health courts initiatives developing in other jurisdictions, mainly North America and Australia. Mental Health Courts also come in a variety of guises (Redlich et al, 2006) and they are not without their critics (Seltzer, 2005); indeed, the therapeutic jurisprudence movement generally has had a mixed reception (Eastman and Peay, 1999). But as one initiative to address what appears to be the common problem in a number of jurisdictions posed by mentally disordered offenders they are worth exploring; and indeed, may be at the forefront of a movement for special jurisdiction courts generally.
