ABSTRACT
The first part of the title of this chapter is borrowed from the work of Herschel Prins, who published his initial account of the problematic interface between mental health and the criminal justice system nearly three decades ago.1 The question skilfully captures the complicated nature of mental health in general, and its somewhat more problematical relationship to the criminal justice system. It is now over two centuries since the first formal piece of legislation was established to deal with the ‘criminally insane’; the Criminal Lunatics Act 1800 – alongside the opening of the secure Bethlam hospital in 1816 – was the beginning of the move to promote diversions from prison for those with mental health problems.2 With a relatively long history it could be easily assumed that the knowledge and processes for dealing with such individuals would be well established, fair and humane. In reality, the complicated nature of the issues, resources, and even prejudice resulting from simple misunderstandings, frequently and consistently mean that these basic principles – many synonymous with human rights – are seldom realised in practice. Somewhat erroneously, the issue that is most often at the forefront of concerns
with regards to mental health and the criminal justice system centres on the matter of culpability and, in particular, the notion of ‘not guilty by reason of insanity’ (NGI) – the benchmark with which many judge the mental state of the offender(s) (including also, for similar reasons, unfitness to plead and diminished responsibility). However, this is only a very small element with regards to understanding the link between mental health and criminal behaviour. In 1843, the decision by the House of Lords in the McNaughton3 case laid the foundations for the Trial of Lunatics Act 1883, the court ruling that:
It must be clearly proved that, at the time of committing the act, the accused was labouring under such a defect of reason from disease of the mind that he did not know the nature and quality of the act, or so as not to know that what he was doing was wrong.
