M'Naghten Rules: Knowledge of Wrong and the Windle Case

Some have argued that the wrongness limb should be abandoned altogether. For example, the Butler Report was not only critical of Windle but also of “moral” wrongness, stating

“It might seem at first sight more attractive to have regard to the defendant’s appreciation of what is morally wrong, but the problems in applying such a test to the mentally disordered would be very great. ‘Knowledge of wrong’ as included in M’Naghten, is not therefore a satisfactory test of criminal responsibility.”

Critically analyse this comment from The Butler Report and with reference to cases such as Windle express a view whether the Law Commission ought to have retained the current test of ‘moral wrongness’.

Introduction

This essay will explore the understanding of M’Naghten Rules and the exploration of the Windle case. It will consider whether the “Knowledge of Wrong” as defined by M’Naghten is a satisfactory test of criminality or not, and explore the argument for a review.

The M’Naghten rule has been around since 1843 when the Judges ruled in the case that “to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong”.[1] [2] [3]

It also worth noting that the whole concept of using insanity as a defence  came on in the early 18^th century in the Arnold’s Case. Edward Arnold advanced argument for shooting Lord Onslow was based on insanity; the trial judge Mr. Justice Tracy in advising the jury stated

“[A] man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment.”[4]

This is popularly referred to as the “wild beast test”.

Over the years, there has been a wide range of developments in law and society and this will be reflect in this essay in my analysis of the comment from the Butler report.

Pre- M’Naughten Rule Developments

It is important to discuss some of the historic precedents that occurred before the M’Naughten landmark case. Sir Matthew Hale (1736) in his well thought analysis pointed out that “If a man in his sound memory commits a capital offense, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such his phrenzy, but be remitted to prison until that incapacity be removed; the reason is, because he cannot advisedly plead to the indictment. . . . And if such person after his plea, and before his trial, become of non sane memory, he shall not be tried; or, if after his trial he become of non sane memory, he shall not receive judgment; or, if after judgment he become of non sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execution.”[5]

Another significant milestone occurred in 1760 when Lord Ferrers killed one his Estate Steward – John Johnson. He defended himself and claimed to have suffered from mental illness and further produced evidence for it. However the court did not believed his evidence and was sentenced to death by hanging. Though many believed that he did behave in an odd way and this may have been exacerbated by alcohol.

Thomas Erskine’s representation of James Hadfield in June 1800 presents another landmark in the discourse of Mental Health and Law. James Hadfield had attempted to kill King George in front of Theatre Royal in Drury lane, London. Erskine  presented the argument that  Mr Hatfield was suffering from delusion and had being examined and adjudged by the specialists to suffer from delusions which may have been brought about by his previous head injury that he sustained during the war with France in 1794.

The case was upheld and was sent to the hospital. This case led to the enactment of the Lunatics Act of 1800. The act reinforced the need to acquittal of all “in all cases where it shall be given in evidence upon the trial of any person charged with treason, murder, or felony, that such person was insane at the time of the commission of such offence, and such person shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether such person was acquitted by them on account of such insanity; and if they shall find that such person was insane at the time of the committing such offence, the court before whom such trial shall be had, shall order such person to be kept in strict custody, in such place and in such manner as to the court shall see fit, until His Majesty’s pleasure shall be known.” [6]

This marked a change and a departure from previous approach. Individuals adjudged to be mentally ill could be discharged by court to go home. Whilst this act opened up the gate way for incarceration and treatment in asylums, the foundation for modern day law was beginning to be unveiled. This act was soon followed by establishment of institutions for the criminally insane. This started the introduction of the role of forensic Hospitals as they later came to be known. The County Asylums Act of 1808 provided the legal backing to the establishment of these institutions.

What started in 1811 with one institution had grown to nine institutions in 1827.   These began the rise of psychiatry and hospitals playing a pivotal role in the management of the people who have mental illness and have committed crimes.

The M’Naghten Rule

In 1843 came an historical and landmark ruling that will dominate the legal landscape for a number over a decade. Mr Daniel M’Naghten killed Edward Drummond the private secretary to Sir Robert Peel. He killed him thinking he was the Prime Minister and had felt he was conspiring against him and watching all of his movements. This defence of Insanity was presented as his defence and his family narrated the history of his mental illness and evidence of being assessed whilst he was in prison. The judge directed the jury by saying that “the question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act.”[7]

The jury in this case acquitted Mr M’Naghten and sent him to the Bethlem Hospital. There was a big public outcry from the members of the House of Parliament and consequently prompted Lord Lyndhurst who was the Lord Chancellor to instigate a debate at the House of Lord about the Criminal responsibility of people with mental illness, though at the time refers to it as insanity. This led to the promulgation of the Lunacy Act of 1845. Through the act was the establishment of Lunacy commission which was charged with the responsibility of transfer of people from prison to the asylums regulated under the act.

This changed the status of people transferred into asylums. Prisoners became patients under the supervision of medical personnel and could be discharged on the advice of the doctors.

This marked a precedent for the court in establishing a defence on the ground of insanity. This could only be used after the defendant has managed to prove that he or she was not of a sound mind or suffering from a disease of mind as to not be able to know the nature and quality of his or her  action, or he or she was not able to distinguish its wrongfulness.[8]

The Butler Report

There has been a number of varying attitudes to the mentally disordered offenders. This has been between the use of the criminal justice system with the offender being sentenced to prison, and the use of psychiatric hospitals. In some cases, there has been the establishment of a psychiatric hospital within the prison, but also the use of ‘special hospitals’ like the Broadmoor and Rampton hospitals. The promulgation of the 1959 Mental Health Act however, has meant that psychiatric hospitals are most likely destination for the mentally disordered offenders. The controversies and public outcry in the Graham Young case who committed another grave offense on trial leave from Broadmoor was part of the prelude to the Butler committee for a major review.[9]

The establishment of the Mental Health Act presupposes that the Psychiatrists have a special status in the determination of the faith of the mentally disordered offenders and the notion that criminal behaviour of this group of offenders stem from mental illness and if cured or managed, the criminal behaviour will cease to exist. Consequently, the numbers of offenders grew very rapidly since the introduction of the Act to the extent that the Butler report indicated that ‘…….. it is not too much to say that we have been astonished and shocked at the overcrowding, particularly in Broadmoor, where in some wards the beds in rows right across the room are no more than 18 inches apart’[10][11]

The Butler Committee (Chairman, Lord Butler) remit was to review and advise or make recommendations to the law relating to offenders.  The most important recommendation in the report relates to the request of the provision of secure hospitals to be financed by direct allocation of central government funds. This was to maintain the balance between public protection and the care of the mentally ill.

As part of their report, they referred to the M’Naghten rule and said  that “It might seem at first sight more attractive to have regard to the defendant’s appreciation of what is morally wrong, but the problems in applying such a test to the mentally disordered would be very great. ‘Knowledge of wrong’ as included in M’Naghten, is not therefore a satisfactory test of criminal responsibility.”[12]

Central to the criticism is the Windle case. Mr Windle killed his wife who was suicidal. There was a comprehensive evidence that he was suffering from mental illness at the time the offence was committed. During the interrogation by the police, he said “I suppose they will hang me for this”. This was seen as evidence of insight and understanding that he knew what he was doing and his illness does not play a part in the murder. The judge in this case refused the appeal. [13]However, the Butler committee does not believe the knowledge of wrong is not a satisfactory test.

The rule is based on the assumption that “Western civilisation rests on the premise that normal adults are rational and therefore have a very significant sphere of freedom and autonomy”[14]

This criticism and support for the M’Naghten rule remains a constant debate.

Proponents of support for M’Naghten rule argued that what it requires is a ‘repair rather than replacement’. Professor Jerome Hall raised a number of issues with the argument about replacement. Hall’s defence of the M’Naghten rules has made him a champion of retention or, at most, cautious amendment. And his vigorous attacks, theoretical and practical, on the concept of strict liability in criminal law have been cited by many courts.[15]

He explained that if M’Naghten rule is abandoned it will lead to a grave mistake and consequence he described as “tyranny of experts”.[16] Hall is a proponent of strict and pure adherence to criminal law process. He believed that psychiatry campaign to destroy M’Naghten rule of criminal responsibility has been relentless. He argued that we should use the best truth in courts and law will be in danger if justices have to allow certain philosophical versions of psychiatry. He argued that the broad meaning of mental illness can be against personal responsibility and other basic values of a democratic society. There are various schools of thoughts in psychiatry and concern about interpretation of deviation from social norms and insanity can be problematic.[17]

It is argued that ‘M’Naghten test is intellectualistic and moralistic, and not medical’.[18] The M’Naghten rule, by the way, does not ask whether the law-breaker knew the difference between right and wrong. It asks whether he “knew he was doing what was wrong” or, perhaps, thought he was doing what was right; that is, whether he was under a delusion to act in legitimate self-defence. On the other hand, a paranoiac with delusional ideas to the effect that someone is destroying his social position by spreading vicious rumours about him (e.g., that he is a homosexual) would not be exempt from punishment because, if the content of his delusional ideas were true, he still would not have the right to kill his pursuer but would have to seek redress in some other way. This is spelled out in the second M’Naghten rule which stipulates with reference to what it calls “partial delusions” that the law-breaker “must be considered in the same situation as to responsibility as if the act in respect to which the delusion exists were real.” That is, it must be asked whether a person would be liable to punishment if it were true that his victim had spread vicious rumours about him but he would not be liable to punishment if it were true that he defended his life[19]

Criticisms of M’Naghten Rule

One of the major criticisms is the second limb of the M’Naghten rule.  The strict approach adopted in R v Windle that individuals with Psychiatric conditions can be sent to prison just on the basis of their awareness of the wrong or right of their actions.

A number of countries have varied views on M’Naghten rule.  In Chaulk,[20] The Supreme court of Canada expressed that the concept of wrong must go beyong a legal definition. It raised the issue of individuals who may be responding to command hallucination that its believed to be a divine order which they feel they must obey, hence not feel that it is morally wrong. In Australia, the High Court of Australia in deciding on the case of R v Stapleton[21] came to the conclusion that Windle case was wrongly decided because the standard of what was considered as wrong was not according to the principles of reasonable men but according to the legal standards. According to Moore, only individuals that can appreciate moral principles can be seen as rational and only rational moral agents can be responsible in law[22]

M’Naghten rule has found its way into the American legal system and somewhat pushed beyond the rule. The ‘product rule’ was introduced in the United States following the introduction of the ‘New Hampshire Rule’, this was because the test was about whether the committal of an offence was a product of mental illness or disease or a defect ‘[23]  The Durham case further intensified the influence of the M’Naghten rule in the American system. Goldstein & Marcus (1974) stated that there were problems with the product rule in the Durham case. It raises the question of the definition of what constitute mental disease or defect. They argued that psychiatrists for defence and prosecution are often in disagreement in court and there is no standard way of resolving this conflicting advice and testimony in court.[24] The McDonald v United States made  an attempt at resolving the problem, but failed in its attempt to redefine mental disease or defect to include ‘any abnormal condition which substantially affects mental or emotional processes and substantially impairs behaviour controls’. This redefinition is overly broad and give opportunity for all sorts of emotion issues being classified under this category.[25]

Professor Jonathan Turley of George Washington University in his article in a US newspaper – ‘US Today’, argues that a society which fails to “recognize the difference between a premeditated and delusional act,” is immoral. He gave examples of four states, Idaho, Kansas, Montana, and Utah, that have eliminated the insanity defence altogether. Other states have moved to curtail the insanity defence in significant ways.[26]

The “Model Penal Code of the American Law Institute [ALI] in an attempt to resolve the limitations in bringing both the cognitive and volitional test together asserts that “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”  In essence, modifications to the M’Naghten rule.[27]

Kenny A (1984) described the inadequacy of the modification by saying that “the occurrence of an irresistible impulse is generally admitted to be something that cannot be established by science, it is clearly not something on which expert testimony can speak with authority. But I would go further: The difficulty in telling the difference between the unresisted and irresistible impulse is not a temporary and contingent one which progresses in science may remove. The notion of irresistible impulse is an incoherent piece of nonsense “(Kenny 1984:29)[28]

Judges have given a much modern interpretation in practice to the M’Naghten rule. The Crown Court Bench Book (March 2010) guidance to the Judges on how to direct the jury, defined ‘the diseased of the mind’ as “an impairment of mental functioning caused by a medical condition”[29]

This has allowed general and broad based interpretation of the rule. This has started to accommodate the areas that are not commonly regarded as mental disorders, like people who suffer from epilepsy and sleep walking. This has meant that the interpretation is about lack of control due to an internal disorder. If we were to exclude external causative actions like violence, drugs and alcohol. But this in itself presents a different problem of interpretation as there are areas that can be advanced to cross between the internal and external causation. Diabetes for example may have had its causation as a result excessive alcohol consumption or failure to comply with medication, and to absolve individual of responsibilities under the law can be seen as a travesty of justice.[30]

M’Naghten use of the term insanity has been attacked as being out of touch and outdated and not in consonance with advances in modern medical and psychological treatment. Dr James Reed (a consultant forensic psychiatrist) wrote in response to the Scoping Paper: “the present test does not really relate in any meaningful way to the practice of psychiatry. Therefore diversions into discussions about the M’Naghten rules are not very helpful in conveying an understanding of the clinical situation to the court”. Many other jurisdictions have met these concerns by recently reforming their insanity test by legislation (Scotland in 2010, Ireland in 2006) or at common law (Canada, Australia)[31]

The term Insane in itself can be seen as offensive and a derogatory term that is used in modern society.  Having worked in mental health for 25 years, the term insanity is seen as disrespectful and not a terminology that is used within the service.

One major argument of that the M’Naghten rule has been the burden of proof of insanity is raised. In English Law, the burden of proof is on the prosecution rather than the defendant but under the M’Naghten rule, the burden of proof is on the defence. Whilst presenting a defence, the tendency may be to see the individual as rational in presenting a coherent argument to defend him or herself and this may potentially lead to miscarriage of justice.

The Law Commission

Should the Law Commission ought to have retained the current test of ‘moral wrongness’. I support the assertion of Professor Hall in the purity of law to ensure wrong is appropriately judge and justice for the victims.[32] This does not negate lack of compassion for the mentally ill. Prisons have ways of managing and supporting people with health problems and the mentally ill is not precluded in this provision. The suggestion of the law commission proposal  did consider ways in which to amend the rules but seeking to abolish the common law of defence of automatism and only make it available where there is a total loss of capacity to control actions and is based on medical conditions being proven.

Conclusion

M’Naghten rule controversy has been a continuous subject of debate for the last 100 years and more, however it remains that despite the depth of criticisms the rule continues to play an important part in law.

The increase understanding in science and medicine and especially in Neuro science have meant that it is possible to detect capacity of making decisions at what intervals and making it easier to resolve the legal and moral judgement of past behaviours.

It remains a sound principle of penal responsibility and whilst there may be areas of development to take into consideration for amendments, the principle of irrationality should continue as criteria for insanity. The law commission is wise to retain the current test as attempts to change have remained less than satisfactory. I also agree with the Commission’s conclusion that the test may need to be tweaked rather than a full scale change.

List of Cases:

• Durham v United States (1954) 214 F.2d 862
• McDonald v United States (1967) 312 F .2d 847
•  R v Byrne [1960] 2 QB 396
• R v Davis (1881) 14 Cox 563
• R v Hadfield ( 1800) 27 State Tr 1281
• R v M’Naghten,· R v McNaughton (sic) (1843) 10 Cl & Fin 200; 8 ER 718
•  

Bibliography:

• Anderson GM, ‘Disease Causation and the Extent of Material Contribution’ (2006) 15 SLT 87
• Bagshaw R, ‘Publication Review: Responsibility and Fault’ (2000) 116 LQR 321
• P. Bartlett & R. Sandland, Mental Health Law, 3^rd ed., 2007, Oxford UP
• B. Hale, Mental Health Law, 5^th ed., 2010, Sweet & Maxwell
• Charles, Barrie, Kill the Queen! The Eight Assassination Attempts on Queen Victoria, Amberley Publishing, 2012, ISBN 978-1-4456-0457-2.
• http://www.capitalpunishmentuk.org/insanity.html accessed 9th May 2017
• http://www.lawcom.gov.uk/wp-content/uploads/2016/08/No.139-Criminal-Law-Consent-in-the-Criminal-Law-A-Consultation-Paper.pdf accessed 9th May 2017.
• P. Fennell, Mental Health: Law and Practice, 2^nd ed., 2011, Jordans
• L. Gostin, J. McHale, P. Bartlett, R. Mackay & P. Fennell,  (eds.), Principles of Mental Health Law and Policy, 2010, Oxford UP
• J. Peay (ed.), Seminal Issues in Mental Health Law, 2005, Ashgate
• Goldstein. A & Marcus, M ( 1977) ‘The McNaughton Rules in the United States’ in West, D & Walk, A (eds) Daniel A1cNaughton His Trial and the Aftermath, Headley Brothers, Ashford
• Kenny, A (1984) ‘The psychiatric expert in court’. Psychological Medicine, vol. 14, no 2
• Murphy, Paul, Shooting Victoria, Pegasus Books, 2012, ISBN 1605983543, ISBN 978-1605983547.
• Prosono, M (1994) ‘History of Forensic Psychiatry’ in Rosner, R (ed) Principles and Practice of Forensic Psychiatry, Chapman & Hall, New York.
• Steadman, H, Callahan, L, Robbins, P & Morrissey, J (1989) ‘Maintenance of an Insanity
• Defense Under Montana’s “Abolition” of the Insanity Defense’, The American Journal of Psychiatry, vol 146, no 3, pp 357-360.
• Smith, F.B, “Lights and Shadows in the Life of John Freeman” Victorian Studies Vol. 30, No. 4 (Summer, 1987), pp. 459–473
• Stevens, Mark, Broadmoor Revealed: Some patient stories, Berkshire Record Office, 2009.
• Stevens, Mark, Broadmoor Revealed: Victorian Crime and the Lunatic Asylum, Kindle Edition, 2011
• Waller, L (1977) ‘McNaughton in the Antipodes’ in West, D & Walk, A (eds) Daniel McNaughton His Trial and the Aftermath, Headley Brothers, Ashford.
• West, D & Walk, A (eds) (1977) Daniel McNaughton His Trial and the Aftermath, Headley
• Brothers, Ashford.
• Wettstein, R, Mulvey, E & Rogers, R (1991) ‘A Prospective Comparison of Four Insanity Defense Standards’, The American Journal of Psychiatry, vol 148, no 1, pp 21-27.

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[1] Hall, General Principles of Criminal Law 449-529 (2d ed. 1960).

[2] M’Naghten, op. cit., p.722

[3] M’Naghten’s Case (1843) 10 Clark and Finnelly 200, (1843) 8 ER 718, [1843-60] All ER Rep 229.

[4] Arnold’s Case (1724) 16 St. Tr. 695.

[5] http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs9.html

[6] http://www.capitalpunishmentuk.org/insanity.html

[7] http://www.capitalpunishmentuk.org/insanity.html

[8] M’Naghten, op. cit., p.722. 

[9] Seminars in Practical Forensic Psychiatry: Introduction by Derek Chiswick. Published 1995. ISBN 0    902241 78 8. (full text via Royal College of Psychiatrists

[10] ‘Report of the Committee on Mentally Abnormal Offenders (Chairman Lord Butler) (i975). Cmnd 6244. London: HMSO.

[11] Seminars in Practical Forensic Psychiatry: Introduction by Derek Chiswick. Published 1995. ISBN 0 902241 78     8. (full text via Royal College of Psychiatrists

[12] ‘Report of the Committee on Mentally Abnormal Offenders (Chairman Lord Butler) (i975). Cmnd 6244. London: HMSO.

[13] R v Windle [1952] 2QB 826

[14] Hall, The Psychiatrist and Crime: A Threat to Society?, National Observer, Aug. 20, 1962

[15] Smith v. California, 361 U.S. 147, 149, 153 (1959); Morissette v. United States, 342 U.S. 246, 253 (1952).

[16] http://ilj.law.indiana.edu/articles/33_2_Hall.pdf

[17] Professor Hall’s observations quoted herein are from his article The Psychiatrist and Crime: A Threat to Society?, National Observer, Aug. 20, 1962. Professor Hall supports the McNaghten rule in GENERAL PRINCIPLES OF CRIMINAL LAw 500-18 (2d ed. 1960); Psychiatry and Criminal Responsibility, 65 YALE L.J. 761 (1956); and Responsibility and Law: In Defense of the McNaghten Rules, 42 A.B.A.J. 917 (1956).

[18] Brain, The Languages of Psychiatry, 109 BRITISH J. PSYCHIATRY 4 (1963). It is interesting to observe that the determination of insanity is somewhat tautological: a normal person would not commit an abnormal act; he did it, so he must be abnormal. The evaluation is circular, but pragmatic. Legal insanity tends increasingly Vol. 1963: 395.]

[19] Lord Brougham observed, “Nobody is hardly ever really mad enough to be within the definition of madness laid down in the [McNaghten rule].” Quoted in HENDERSON & Gir-.arSP,. SYCHiATRY 551 (9th ed. 1962).

[20] R v Chaulk [1990] 2 CR (4th) 1. 

[21] R vStapleton (1952) 86 CLR 358. 

[22] Moore, M., Law and Psychiatry: Rethinking the Relationship, (1984), p.244. 

[23] Prosono, M (1994) ‘History of Forensic Psychiatry’ in Rosner, R (ed) Principles and Practice of Forensic Psychiatry, Chapman & Hall, New York.

[24] Goldstein. A & Marcus, M ( 1977) ‘The McNaughton Rules in the United States’ in West, D & Walk, A (eds) Daniel A1cNaughton His Trial and the Aftermath, Headley Brothers, Ashford.

[25] Goldstein. A & Marcus, M ( 1977) ‘The McNaughton Rules in the United States’ in West, D & Walk, A (eds) Daniel A1cNaughton His Trial and the Aftermath, Headley Brothers, Ashford.

[26] http://www.christianpost.com/news/not-guilty-by-reason-of-insanity-6726/#ViSTl41mkWRsLMLi.99

[27] Wettstein, R, Mulvey, E & Rogers, R (1991) ‘A Prospective Comparison of Four Insanity Defense Standards’, The American Journal of Psychiatry, vol 148, no 1, pp 21-27.

[28] Kenny, A  (1984) ‘The psychiatric expert in court’. Psychological Medicine, vol. 14, no 2, pp291-302.

[29] Judicial Studies Board, Crown Court Bench Book (March 2010) p 327

[30] About 600,000 people in the United Kingdom have been diagnosed as having epilepsy: Epilepsy Action, http://www.epilepsy.org.uk/info/basics/living-with-epilepsy (last visited 24 Apr 2013). More than 2.7 million people in England and Wales have diabetes: http://www.diabetes.org.uk/Professionals/Publications-reports-and-resources/Reportsstatistics-and-case-studies/Reports/Diabetes-prevalence-2012-March-2013/ (last visited 24 Apr 2013).

[31] New Zealand Law Commission, Mental Impairment Decision-Making and the Insanity Defence, R120 (2010)

[32] Professor Hall’s observations quoted herein are from his article The Psychiatrist and Crime: A Threat to Society?, National Observer, Aug. 20, 1962. Professor Hall supports the McNaghten rule in GENERAL PRINCIPLES OF CRIMINAL LAw 500-18 (2d ed. 1960); Psychiatry and Criminal Responsibility, 65 YALE L.J. 761 (1956); and Responsibility and Law: In Defense of the McNaghten Rules, 42 A.B.A.J. 917 (1956).