Getting away with murder
Colin Brewer
When Daniel McNaughton shot and killed Sir Robert Peel's secretary in 1839 under the influence of paranoid delusions, the Law Lords of the day were asked to produce some guidance about the extent to which mental illness might absolve criminals from legal responsibility for their acts, and hence from the punishment which they would otherwise receive and the condemnation of society which that punishment would represent. In the `McNaughton Rules' which were the result of their deliberations, they took the view that only the grosser and more obvious .,kinds of insanity should be considered relevant. Merely feeling a bit depressed, or edgy, would not be enough, even though these are often the main complaints of people who consult psychiatrists today.
An insanity verdict was not, however, a soft option. In the absence of effective treatment, and given the public's traditional anxieties about the mentally ill (not always misplaced, even today), the most that the insane of that period could hope for was to spend a large number of years incarcerated by psychiatrists rather than by ordinary turnkeys. Later on, advances in psychiatry, combined with an increasing antipathy to hanging in some quarters, produced the concept of 'diminished responsibility' as a defence to a charge of murder short of actual insanity. It is probable that the people who regarded hanging as unthinkable were also those who considered crime of all kinds as essentially a matter for treatment rather than punishment, and whose monument is the Children and Young Persons Act of 1969. But in legislating for diminished responsibility, it was presumably not the intention of Parliament that the risk to the public from the criminally insane should be increased; and it may also be doubted if it was their intention that psychiatry should be seen as a way of securing the early release of those convicted of deliberate killing. Yet this is what seems to have happened. Here are a few examples from my own experience.
In 1959, Mr A was involved in a public house brawl in which he was worsted. He returned a little later with an iron bar, and clubbed to death one of the men with whom he had been fighting. He was charged with murder but, even though the medical reports said that there was no evidence at that time of any mental disorder, the Crown accepted a plea of manslaughter on the grounds of diminished responsibility: he had undoubtedly been admitted to psychiatric hospitals several times for what may well have been a schizophrenic illness. Following sentence, he did not go to Broadmoor but was detained in an ordinary prison from which he was released about six years later. During the next 12 years he was convicted of two further assaults for which he received short terms of imprisonment. Two years ago, he clubbed his neighbour to death in the apparently unfounded belief that the man had been trying to annoy him by deliberately making a great deal of noise. On this occasion, his paranoia was rather more evident, and again the charge of murder was reduced to one of manslaughter on the grounds of diminished responsibility. It seemed to me that Broadmoor was the most appropriate place for him to go to, but Broadmoor refused to take him on the curious grounds that treatment was likely to prove unavailing. Again he went to an ordinary prison from which, in view of his age, it is unlikely that he will ever emerge. Had Mr A been convicted of murder after his first offence, he would probably have spent a longer time in prison and his further assaults would surely have been seen as grounds for his recall by the Home Secretary, had he been released.
Mrs B is a young housewife who killed a neighbour with multiple stab wounds for reasons which remain rather obscure but which may also have had something to do with being irritated by noise. She had suffered from epilepsy in the past and I produced evidence —which the Crown accepted — that she had an abnormality of the brain which, with the history of epilepsy, might explain her behaviour. The charge of murder was reduced to one of diminished responsibility and she went to Broadmoor, from which it was expected that she would be released in a few years. If brain damage is indeed an important factor in her criminal behaviour, it is unlikely that a few years in Broadmoor will restore her level of responsibility to that of the 'average citizen' or whatever the law regards as an appropriate yardstick, Mr C illustrates a different aspect of diminished responsibility. His wife was having a fairly blatant affair with another man, and there was evidence that both she and her lover taunted him about it. Provoked beyond his endurance, and without any assistance from alcohol, he shot both of them dead. On two occasions before the killing, he had been briefly admitted to a psychiatric hospital for 'depression' occasioned by a mixture of domestic and business worries. He had been on the point of shooting himself as well, after killing his wife and her lover, but friends managed to dissuade him. The prison psychiatrists needed no prodding from the defence to declare that his responsibility was seriously impaired by mental illness at the time of the offence and the Crown accepted a plea of manslaughter. He went to Broadmoor but it is likely that, in a few months, he will go to an ordinary psychiatric hospital from which, since he does not now require any active treatment, he may well be released within a year and certainly would be if he were under my care.
As I was waiting to give my evidence in this last case, I sat in on the preceding trial where a woman who had stabbed to death her admittedly rather unpleasant-sounding husband was put on probation after plead ing guilty to manslaughter. She had not apparently been a psychiatric in-patient but, like many other unhappy housewives, she had been receiving tranquillisers for many years in a vain attempt to make her see the world as a pleasanter place than it really is. The judge indicated that he regarded the use of tranquillisers as accept able evidence that she suffered from mental illness. In spite of this, it was not to be a condition of her probation order that she should receive any further psychiatric treatment. It was, in effect, to be left to her discretion.
I give these examples not necessarily because I disagree with the way the cases were handled, but because I am puzzled about the legal and philosophical principles which the sentences seem to reveal. The first two cases involved people who attacked relative strangers with littleor no provocation, and in a way which of itself suggested that they were not to be regarded as mentally normal. That being so, it might be thought that a defence of diminished responsibility carries with it the implication that the accused is more rather than less likely to offend again than what might be called ordinary murderers. Of course, that is certainly not true of all cases, especially where the mental illness in question is a relatively short-lived one which responds well to treatment (as one finds with some disorders). However, neither of these cases seems to come into that category. Mr A had proved his chronicity by continuing to offend, and Mrs B had a condition which was unlikely to respond to treatment though it is even more unlikely that she will kill a second time.
And so, if the duration of imprisonment even partly reflects considerations of public safety, then one might expect that this kind of diminished responsibility,would result in a longer rather than a shorter prison sen tence. This is equally true of conditions such as 'personality disorder' and 'psychopathy' which are the commonest psychiatric diag noses adduced in support of a plea of diminished responsibility, but which are usually no more than a technical way of saying that the people involved are constitu tionally disagreeable, antisocial, or aggressive, and that these characteristics should not be seen as just a passing phase. Furthermore, the notorious resistance of psychopaths to any available treatment is equalled only by the notorious reluctance of psychiatrists to treat them in the first place. Paradoxically, I have found a certain resistance among my psychiatric colleagues to investigating those charged with serious crime for brain disease which is not uncommon in this group (30 per cent of murderers, for example, have cerebral atrophy) and which represents a much more realistic and concrete kind of evidence for diminished responsibility.
The third and fourth cases, where the man had killed his wife and rival and where the woman had killed her husband, seem to represent an evidently widespread feeling that where the accused is normally a person of good character who commits an isolated offence, any evidence of past or present Psychiatric illness should be regarded as an important mitigating factor. The psychiatric illness usually cited on these occasions is 'depression', and indeed it is the commonest psychiatric diagnosis made, There are Certainly some types of depression which seem unrelated to external events or to the Patient's basic personality, and which emerge for no discernible reason.. People can de strange and sometimes criminal things under the influence of the disorder Which often, though by no means always, responds well to modern treatment. This sort of depression is sometimes called 'endogenous', and it is widely seen among Psychiatrists as representing some subtle form of cerebral malfunction. But the commonest kind of depression is what is called 'reactive' or 'neurotic'. What this usually means in practice is that it could be just as reasonably described as 'understandable misery', and that it is simply either the response of ordinary people to ordinary or extraordinary misfortunes or perhaps, more frequently, the response of those who may be described as vulnerable, or inadequate, according to taste, to the ordinary ups and downs of life. Since the Fifties the number of people .diagnosed as suffering from 'depression' has increased by several 100 per cent. It seems unlikely that this represents a genuine increase in the incidence of a real condition; mcire probably, it represents the medicalisation of conventional misery. At the time of Mr John Stonehouse's fall from grace, for example,it was proposed to bring evidence that he suffered from depression with paranoid features. If this meant, as I strongly suspect it did, that Mr Stonehouse was unhappy and thought people were trying to get at him, then the answer is surely that he had good reason to feel that way and that, in the circumstances, the question of mental illness would only have arisen if he had felt cheerful.
What I have described should not be seen as a plot by unprincipled or tender-hearted psychiatrists commissioned by the defence to subvert the course of justice. In many cases, as in the four I have described, the psychiatric defence is raised either by independent Crown experts, or by prison psychiatrists who are not notoriously sentimental. There have undoubtedly been cases where the Crown has bent over backwards to give very dubious psychiatric diagnoses to those who murder in circumstances which would be likely to arouse a great deal of public sympathy as, for example, in a case, where a man shot his neighbours after they had made his life a misery for years.
I do not intend this as a general plea for tougher sentences for those Who kill, for murder is largely a family crime and in most cases neither the public nor the remaining family members need the protection of a long prison sentence. Nevertheless, if these cases are typical, then it does seem that we are taking the killing of our fellow citizens less seriously than we used to. If this is the way the Courts and Parliament want it, well and good but, especially in the case of psychopathy, I wonder if this approach means that some really rather dangerous people are being released too early. And, in the case of depression,! wonder whether we are• in danger of undermining the whole concept that people are responsible for their actions and for the reasonably foreseeable consequences thereof unless there is very strong evidence to the contrary. I wonder too, what the formulators of the McNaughton Rules would have had to say about it.
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