SOUNDNESS OF THE DEFENCE ‘UNSOUNDNESS OF MIND’ AS A GENERAL EXCEPTION – AN ASSESSMENT OF ITS APPLICATION IN INDIA
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Abstract
For a substantial amount of time, the general idea has been to absolve a man who is not guilty for the commission of the crime. And in this light, since the dawn of modern rationality, societies have believed that the insane should be considered ‘not guilty’ for the crimes they commit. This paper in detail discusses and analyses the problems and perspectives in implementing the law relating to Insanity/unsoundness of mind. Since the law is adopted from England a considerable research goes into comparative study as well.
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Dr KVK Santhy, Asst Professor, NALSAR University of Law. Author would like to ackonolwedge for the research assistance provided by Ms Arti Mohan in writing this article.
One of the longest serving Lord of Appeals, he made gigantic contributions to legal ideas like Audi alterum partum, ultra vires, etc.
AC 132.
Sir James Fitzjames Stephen was an English lawyer, judge and writer who also played a tremendous role in the drafting of the Indian Evidence Act.
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Ibid, pp. 166
William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, BOOK IV - OF PUBLIC WRONGS (1769), pp. 24.
Donald H.J. Hermann, THE INSANITY DEFENSE: PHILOSOPHICAL, HISTORICAL AND LEGAL PERSPECTIVES 23 (1983)
The 42nd Law Commission Report expressly stated that there is no need for reform in this section.
The penal codes of Malaysia, Northern Nigeria and Singapore also use the expression unsoundness of mind
SCC 109 = AIR 2009 SC 31
Crl. A. No.1602 of 2008]
CRLJ 863
Nakula Chandra Aich v. State of Orissa, 1982 Cri LJ 2158 (2162) Ori (DB), 1983 Cri LJ 1385
AIR 1964 SC 1563
In S.K. Nair v. State of Punjab the Supreme Court held that the plea that accused was suffering from paranoid fact establishing that he understood implications of his acts at the time he committed the offence is not maintainable.
Sherall Walli Mohammed v. State of Maharashtra 1972 Cri.LJ 1523
CriLJ 616
AIR 608
Ibid, 14
Chhotelal Gangadin Gadariya
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The Code of Criminal Procedure (Amendment) Act , 2008 which amended Section 328 of the Principal Act
This idea was done away with by the American Psychological Association in 1973
Again, by the American Psychological Association
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It is believed that the narcissist may victimise, plunder, intimidate and abuse others - but not in the cold, calculating manner of the psychopath. The narcissist hurts people offhandedly, carelessly, and absentmindedly. The narcissist is more like a force of nature or a beast of prey - dangerous but not purposeful or evil.
This view was opined in a New York Times article available at: http://well.blogs.nytimes.com/2010/11/29/narcissism-no-longer-a-psychiatric-disorder/
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MPD was first considered as an official psychiatric diagnosis by the American Psychiatric Association in 1987 when it was included for the first time in the Diagnostic and Statistical Manual for Mental Disorders (DSM). MPD is now called the Dissociative Identity Disorder in DSM IV.
Most systems have one to twenty alters, some have hundreds. For example, a typical young woman with MPD might have six personalities including a 4-year-old girl, a 90-year-old man, a secretive intellectual, a promiscuous young lady, a studious introvert, and an impulsive, teenage girl.
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Modi's MEDICAL JURISPRUDENCE AND TOXICOLOGY, Twelfth Edition, page 399
Susan Young, Michael Kopelman, Gisli Gudjonsson, FORENSIC NEUROPSYCHOLOGY IN PRACTICE: A GUIDE TO ASSESSMENT AND LEGAL PROCESSES
Epilepsy is a group of heterogeneous neural disorders which cause seizures or ictus. In the state of epileptic automatism, the individual can retain muscle tone and posture but perform complex or simple movements without being aware of what is happening.
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One of the first tests to check insanity. It was laid down in 1724. If the defendant was found to be a madman, ‘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’ he would be acquitted..
A man called Mc’Naughton murdered Mr. Drummond, the Private Secretary of Sir Robert Peel, the British Prime Minister. He had actually intended to murder Sir Robert Peel labouring insane delusion but failed in his attempt and murdered his secretary by mistake. His acquittal created a furore in the mind of the public. This matter fraught the minds sitting in the House of Lords.
G. Sadasivan Nair, “Defence of Insanity: Need For Reform”, (1998) pp. 129-64
F.2d 862
Ibid, 876
In the case of Mc’Donald v. United States, 312 F.2d 847
Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967)
Also called the /Brawner Standard
It was laid down in the Model Penal Code
Section 4.02 of the MPC
This has been attributed to the belief in the minds of the defendants that the insanity plea has more to do with disposition than responsibility and related to this another belief that it would be better for them to stay a part of the criminal justice system rather than being transferred to mental healthcare services.
Observations on the Insanity Defense and Involuntary Civil Commitment in Europe; La Fond, John Q., U. Puget Sound L. Rev. 527 (1983-1984)
Article 18 of the Criminal Law of the PRC (People’s Republic of China)
Section 27(b), Criminal Code of Ghana
Section 78(1) of the South African Criminal Procedure Act
Ibid
Section 27 of the Code
Winslow, THE PLEA OF INSANITY IN CRIMINAL CASES 74 (1843).
Mayne, CRIMINAL LAW, (3rd Ed.) p.405.
State Of Assam v Inush Ali 1982 CriLJ 1044
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H.M. Adv. v. Miller, 3 Coup. 16, 18 (1874
One of the most learned writers on the Criminal Law of England during the nineteenth century
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AL 577, So 854 1886 AL
Stedmans Medical Dictionary defines ‘impulse’ as a sudden pushing or driving force, sudden, often unreasoning, determination to perform some act, and "irresistible impulse" is a compulsion to act in a way that one knows as wrong.
Black's Law Dictionary, Revised Fourth Edition
Law Commission 42nd Report on the Indian Penal Code, p.93-94
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Over-activity of the thyroid gland frequently leads to irritability, excitability, and a tendency to respond quickly to stimuli.
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Parsons v. State, 2 So. 854, 864-65 (Ala. 1887)
MODEL PENAL CODE § 4.01, app. A (Official Draft and Revised Comments) (1962) (Statement of Dr. Guttmacher). This comment, provided by Dr. Guttmacher, was based on his surveys of psychiatrists. See Deborah W. Denno, Criminal Law in a Post- Freudian World, 2005 U. ILL. L. REV. 601, 626-27 (2005).
SLOBOGIN, MINDING JUSTICE, ,pp. 51.
Kirk Heilbrun, PRINCIPLES OF FORENSIC MENTAL HEALTH
ASSESSMENT (2001), 321
Acceptance of mental disorder as diminishing or eliminating criminal responsibility demands the ability to get inside someone else's skin so completely as to determine whether he acted wilfully or knowingly, and also to experience the strength of the temptations to which he is exposed. That, is beyond the capacity of even the most highly qualified psychiatrist. , BARBARA WOOTTON, CRIME AND PENAL POLICY; REFLECTIONS ON FIFTY YEARS' EXPERIENCE (1978).
Abolished through statute in 1979
Since Montana claims to have abolished the insanity defense, its retention of a verdict of "not guilty by reason of mental disease or defect" appears counter-intuitive. 273 The statute granting defendants this verdict originally
contained a companion section setting out the burden of proof required for the repealed insanity defense. The 1979 bill deleted the language on the burden of proof, but retained the verdict. Idaho has only two verdicts of guilty and not guilty.
Stephen J. Morse, Diminished Capacity: A Moral and Legal Conundrum, 2 INT'L J.L. & PSYCHIATRY 271 (1979); Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75 J. CRIM. L. & CRIMINOLOGY 1 (1984)
Section 2(1)
2 QB 396
It was held that the degree of abnormality was so great that he could be held guilty for murder but only for manslaughter.
Jones v. Commonwealth, 75 Pa. 403, 408 (1874); Hopt v. People, 104 U.S. 631 (1881); Anderson v. State, 43 Conn. 514 (1876); Rogers v. Commonwealth, 96 Ky. 24, 27 S.W 813 (1894); People v. Moran, 249 N.Y. 179, 163 N.E. 553 (1928).
After the famous acquittal of Andrea Yates, there were huge questions raised about the testimony of psychologists and psychiatrists. A small mistake made during the testimony led to the discussion of whether expert witnesses such as psychologists and psychiatrists should even be allowed in insanity defense trials.
Criminology 393 (1986) Analysis of Public Attitudes toward the Insanity Defense, An; Hans, Valerie P.
. It is reported that, “agreement on whether or not a defendant has psychosis rarely approaches a level as high as 90% even when the clinicians come from the same background” (Torry, and Billick).
Moore, THE ENCYCLOPEDIA OF PHILOSOPHY Responsibility, Moral and Legal 183-88 and 1113 (1967).
The DSM IV describes it as “the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution or obtaining drugs” as malingering.
– Psychological Examination of Defendants, THE PSYCHOLOGIST AS EXPERT WITNESS
Donald R. Reeves et al, Limitations of Brain Imaging in Forensic Psychiatry, 31 J. AM. ACAD. PSYCHIATRY & L. 89, 90 (2003) .
Stacey A. Tovino, Functional Neuroimaging Information: A Case for Neuro Exceptionalism?, 34 FLA. ST. U. L. REV. 415, 479 (2006), quoting Martha J. Farah, Emerging Ethical Issues in Neuroscience, 5 NATURE REV. NEUROSCIENCE 1123, 1127 (2002).
MODEL PENAL CODE § 4.01, app. A (Official Draft and Revised Comments) (1962) (Statement of Dr. Guttmacher). This comment, provided by Dr. Guttmacher, was based on his surveys of psychiatrists. See Deborah W. Denno, Criminal Law in a Post- Freudian World, 2005 U. ILL. L. REV. 601, 626-27 (2005).
Kirk Heilbrun, PRINCIPLES OF FORENSIC MENTAL HEALTH
ASSESSMENT (2001), 321