An anti-social behaviour order (ASBO/ˈæzboʊ/) is a civil order made in Great Britain against a person who had been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders were introduced by Prime Minister Tony Blair in 1998,[1] and continued in use until repealed in England and Wales by the Anti-Social Behaviour, Crime and Policing Act 2014 on 20 October 2014—although they continue to be used in Scotland. ASBOs were replaced in England and Wales by the civil injunctions and the criminal behaviour orders. They were designed to address behaviours like intimidation,
drunkenness, and violence by individuals and families, using civil
orders rather than criminal sanctions.
The orders restricted behaviour in some way, such as: prohibiting a
return to a certain area or shop; or restricting public behaviours, such
as swearing or drinking alcohol. Many saw the ASBOs as connected with
young delinquents.
They are closely related to the fixed penalty notices
and related schemes such as penalty notices for disorder (PNDs) and
penalty charge notices (PCNs), in both intent and date of introduction.
History
ASBOs were introduced in England, Scotland, and Wales through the Crime and Disorder Act 1998. Later legislation strengthened its application: in England and Wales, this was largely via the Anti-social Behaviour Act 2003; in Northern Ireland through an Order in Council; and in Scotland with the Antisocial and Sexual Behaviour etc. (Scotland) Act 2004. Scotland, however, had a pre-existing tribunal system charged with dealing with children and young persons who offend, the Children's Hearings system.
In a press release of 28 October 2004, Tony Blair and David Blunkett announced further measures to extend the use and definition of ASBOs. The remit included:
More offences, including dog-fouling, litter, graffiti, and night-time noise liable for fixed penalty notices
Giving parish councils the power to issue fixed penalty notices for infringements
The press release concluded by remarking:
In the past year, around 100,000
cases of anti-social behaviour have been dealt with. 2,633 ASBOs and 418
dispersal orders have been issued in the same period.
On 25 October 2005, Transport for London
announced its intent to apply for a new law giving them the authority
to issue orders against repeat fare dodgers, and increased fines. By 31 March 2004, 2,455 ASBOs had been issued in England and Wales. On 30 March 2006, the Home Office announced that 7,356 ABSOs had been given out since 1999 in England and Wales.
Replacement
The 2010 coalition government
expressed its intention to replace ASBOs, citing the reasons that
"breach rates are high, and the number issued has been steadily
declining since 2005." In July 2010, Home SecretaryTheresa May
announced her intention to reform anti-social behaviour measures for
England and Wales, with the abolition of ASBOs in due course in favour
of alternative "community-based" social control policies. However, in 2012, Liberal Democrat objections prevented the implementation of proposals in a Home Office White Paper to replace the ASBO with a "criminal behaviour order" and a "crime prevention injunction". In May 2013, an Anti-social Behaviour, Crime and Policing Bill was introduced into the House of Commons, including a provision to create "injunctions to prevent nuisance and annoyance," replacing ASBOs in England and Wales. The bill was criticised for the broad and undefined scope of "Nuisance and Annoyance," and defeated in the House of Lords in January 2014.
The Anti-Social Behaviour, Crime and Policing Act 2014 received
Royal Assent in March 2014. This streamlined the tools available to
tackle anti-social behaviour, and replaced the ASBO with an injunction
(a civil order) and a CBO.
What warranted an ASBO
Uses
A police notice on the street in Richmond
An ASBO was issued in response to "conduct which caused or was likely to cause harm, harassment, alarm, or distress,
to one or more persons not of the same household as him or herself, and
where an ASBO was seen as necessary to protect relevant persons from
further anti-social acts by the defendant." In England and Wales, they were issued by magistrates' courts, and in Scotland by the sheriff courts.
The British government introduced ASBOs through the Crime and Disorder Act 1998. In the UK, a CRASBO was a "criminally related" ASBO. One local authority published photos of those given ASBOs on an Internet site. Anti-social behaviour included a range of problems, such as:
Applications
for ASBOs were heard by magistrates sitting in their civil capacity.
Although the proceedings were civil, the court had to apply a heightened
civil standard of proof. This standard was virtually indistinguishable from the criminal standard.
The applicant had to satisfy the court "so that it is sure" that the
defendant has acted in an anti-social manner. The test for the court to
be "satisfied so that it is sure" was the same direction that a judge
gives to a jury in a criminal case heard in the Crown Court, and is also known as satisfying the court "beyond reasonable doubt".
Pursuant to section 1(1) Civil Evidence Act 1995, an applicant
(and a defendant) had the right to rely on witness statements without
calling the makers of those statements—known as hearsay.
If a party proposed to rely upon a hearsay statement, then the other
party was entitled to ask the court for permission to call that witness
for cross-examination.
If the court refused to grant such an application, then the
defendant would be unable to cross examine the makers of the hearsay
statements. Nevertheless, it was open to them, in accordance with the
Civil Evidence Act, to submit that the court should place little or no
weight upon material that had not been tested by way of cross examination.
Section 4(1) Civil Evidence Act 1995 states that:
In estimating the weight (if any)
to be given to hearsay evidence in civil proceedings, the court shall
have regard to any circumstances from which any inference can reasonably
be drawn as to the reliability or otherwise of the evidence.
The High Court has emphasised that the use of the words "if any" shows that some hearsay evidence may be given no weight at all.
For an ASBO to be made, the applicant had to prove beyond all
reasonable doubt that the respondent had behaved in an anti-social
manner. The applicant could rely on hearsay evidence. However, the Court
of Appeal has stated that it does not expect a court to find that the
criminal standard has been reached by relying solely on hearsay
evidence. The Civil Evidence Act 1995 itself makes clear that courts
should consider what weight, if any at all, attaches to hearsay material. In Cleary,
the Court of Appeal again restated that courts should consider
attaching no weight at all to such material, in accordance with the
words of the statute.
It is for the court to decide what weight to give the hearsay evidence. The Court of Appeal
has stated that the high standard of proof is difficult to meet if the
entirety of the case, or the majority of it, is based upon hearsay
evidence.
The proper approach would be for a court to consider to what extent the
hearsay evidence is, amongst other things, supported by other evidence,
the cogency and similarity of supporting instances of hearsay evidence,
and the cogency and reliability of contradictory evidence supplied by a
defendant.
Where, for example, ten anonymous witnesses who are unrelated to
each other each provide a witness statement as to the defendant's
anti-social behaviour, where each statement refers independently to the
same particular events, and where this is supported by a witness
statement from a non-anonymous witness, such as a housing officer who
confirms that residents have made complaints about a particular person
over a period of time, then the court may be justified in according to
the statements a fair degree of weight.
Typical ASBOs
An ABSO was an order of the court which told an individual aged over 10 years how they must not behave.
An order could contain only negative prohibitions. It could not contain a positive obligation.
To obtain an ASBO, a two-stage test had to be satisfied by the
applicant authority (see: s.1(1) Crime and Disorder Act 1998). The first
test was that the defendant had committed acts causing or likely to
cause harassment, alarm, or distress within six months of the date of
issue of the summons. The second test was that an order was necessary to
protect persons from further anti-social behaviour.
The applicant had to satisfy the court that the individual had
acted in an anti-social manner—that is to say, in a manner that caused,
or was likely to cause, harassment, alarm, or distress to one or more persons not of the same household as themself. A court could order an ASBO only if such an order was "necessary".
Further, each prohibited act would usually be an act preparatory to a
criminal offence, rather than the offence itself—but not always (see: Rabess v Commissioner of Police of the Metropolis [2007] EWHC 208 (Admin)). In addition, each prohibition itself had to be necessary.
An order had to be tailor-made for the individual defendant. The ASBO represented "a form of personalised criminal law."
It had to be relevant to their particular anti-social behaviour. Orders
should not have been drafted too widely or imprecisely. Each
prohibition had to be necessary.
An ASBO was very similar to a civil injunction, even though the
differences are important. First: the injunction was supposed to protect
the world at large, in a given geographical area, rather than an
individual. Second: breach of an ASBO was a criminal offence to be tried
in a criminal court, applying the criminal standard of beyond all
reasonable doubt.
A power of committal to prison was available for breach of a civil
injunction, but a court was unlikely to exercise that power. A person
subject to an anti-social behaviour order where it did not follow a
criminal conviction had an automatic right of appeal against both the
making of the order and its terms to a higher court. There was also the
availability of an appeal to the High Court by way of "case stated".
There was no appeal against the variation of orders, and variation was used to add extra conditions, and to extend the duration of ASBOs.
An application for an ASBO was considered by the courts in its
civil jurisdiction, and was a civil order. However, breach of an ASBO
was a criminal offence, and conviction could result in up to five years'
imprisonment (two for a minor). Subsequent legislation compelled
magistrates to make a Parenting Order, where a person under the age of
16 breached their ASBO.
Less common and more conventional uses of ASBOs, as listed by a report to the Home Office to illustrate the difficulties with ASBOs, include:
Two teenage boys from east Manchester forbidden to wear one golf glove, as it was a symbol of membership of a particular gang.
A 13-year-old forbidden to use the word "grass" as a term of abuse in order to threaten people.
A 15-year-old forbidden to play football in his street.
A farmer (the first to be given an ASBO) who was instructed to keep his geese and pigs from damaging his neighbour's property.
An 18-year-old ordered not to congregate with three or more other
youths. He entered a local youth club that had a good reputation, and
was arrested because there were more than three youths on the premises.
He was intending to attend an event there on how to deal with
anti-social behaviour.
Reception
From their inception, ASBOs were controversial. They were criticised as being "without strong and principled justification", a distraction from the failure of the government's law and order policies, a "recipe for institutionalised vigilantism", and an "emblem of punitive populism". Andrew Rutherford commented that the "ASBO provides a particularly striking example of the criminalisation of social policy". A MORI
opinion poll published on 9 June 2005 found that 82% of the British
public were in favour of ASBOs; however, only 39% believed they were
effective in their current form. A 2012 survey by Angus Reid Public Opinion showed that only 8% of Britons believed ASBOs had been successful in curbing anti-social behaviour in the UK.
Other parties voiced concerns about the open-ended nature of ASBO
penalties—that is, there is little restriction on what a court may
impose as the terms of the ASBO, and little restriction on what can be
designated as antisocial behaviour. In 2005, critics reported that only
around 3% of ASBO applications had been turned down. In July 2007, the Local Government Ombudsman published a report criticising Manchester City Council
for serving an ASBO based purely on uncorroborated reports of nuisance
by a neighbour, and the Council agreed to pay £2000 in compensation.
A 2005 memorandum submitted by the National Association of Probation Officers
(NAPO) asserted that "there is ample evidence of the issuing of ASBOs
by the courts being inconsistent and almost a geographical lottery.
There is great concern that people are being jailed following the breach
of an ASBO, where the original offence was itself non-imprisonable.
There is also evidence that ASBOs have been used where people have mental health
problems where treatment would be more appropriate. In NAPO's view, the
time is right for a fundamental review of the use and appropriateness
of Anti-social Behaviour Orders by the Home Office."
In 2002, Home Office data stated that in the cases where
information was available, there was a high proportion where some
mitigating factor appeared to have contributed to their behaviour.
Almost 1⁄5 used substances, and 1⁄6 were consuming excessive amounts of alcohol. Overall, 44% were engaging in substance use or had a learning disability, and a further 16% included persons with psychological and behaviour problems in the family.
Similar results were found in Scotland. A casefile review showed that
55% of those given ASBOs had substance use disorders, mental health, or
learning disability problems. (see: The Use of ASBOs in Scotland, H. Pawson, School of The Built Environment, Heriot-Watt University, Edinburgh, 2007.)
In 2005, a survey of Youth Offending Teams by the British Institute for Brain Injured Children showed that 38% of ASBOs went to young people with significant mental disorders. Problems included: clinical depression, suicidal tendencies, autism, psychosis, personality disorders, learning disabilities, and ADHD;
this raised the question of whether young people with these illnesses
should be held to a lower standard of behaviour than others. By
contrast, the same survey of ASBO teams gave only a 5% reported
incidence of mental impairment. This massive difference suggests that
most ASBO teams did not take into account mental health problems, even
though the Home Office safeguards for vulnerable people in the ASBO
process required it.
ASBO effectiveness has also been questioned. In a House of
Commons reply, it was stated that 53.7% of ASBOs were breached in
England in 2005; 69.4% in 2006; and 70.3% in 2007.
In large cities, rates could be higher: the breach rate in Manchester
reached 90.2% in 2007. This level of breaching raised an interesting
issue. The first test to justify the issuing of an ASBO was that ASB had
been proved to the criminal standard. The second test was that the
order was necessary to prevent future acts of ASB, and provide
protection to the victim(s). However, the criminal standard was not
applied to the second test. Indeed, Lord Steyn (House of Lords in R (on the application of McCann) v. Manchester Crown Court [2003] 1 AC 787,812, para 37) is quoted:
The inquiry under section 1(1)(b),
namely that such an order is necessary to protect persons from further
anti-social acts by him, does not involve a standard of proof: it is an
exercise of judgment or evaluation.
According to government evaluations (e.g. Housing Research Summary No. 230; DfCLG) in the "ASB Intensive Family Support" (Sin Bin)
projects introduced to supplement ASBOs, 80% of the families targeted
had serious mental/physical health and learning disability problems; one
in five families had children affected with attention deficit hyperactivity disorder,
and 60% of the families were recognised as victims of ASB. Project
managers described many families as "easily scapegoated" in neighbour
disputes. HRS 230 called for a review of both ASBO policy and
investigation procedures in order to make the whole process fairer.
A later study of 53 projects by the National Centre For Social
Research noted that 42% of children with mental health problems were
reported to have ADHD or hyperactivity, and 29% were reported with
depression or stress. Amongst adults, 69% had depression.
A later comprehensive review of Family Intervention Projects over
a decade found little objective evidence for significant, sustained
reduction in ASB in the families, and concluded that underlying mental
health and disability problems remained largely unaddressed.
In the UK, there was criticism that an ASBO was sometimes viewed as a badge of honour by the youth.
Nacro,
the biggest criminal justice-related charity in England and Wales,
published two reports: the first claimed that ASBOs were a failure, due
to being costly and slow to obtain;
and the second criticised their use by the courts, with assertions that
they were being used too hastily, before alternatives had been tried.
The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to an episodic or persistent psychiatric disease at the time of the criminal act. This is contrasted with an excuse of provocation, in which the defendant is responsible, but the responsibility is lessened due to a temporary mental state.
It is also contrasted with a finding that a defendant cannot stand
trial in a criminal case because a mental disease prevents their from
effectively assisting counsel, from a civil finding in trusts and estates where a will is nullified because it was made when a mental disorder prevented a testator from recognizing the natural objects of their bounty, and from involuntary civil commitment to a mental institution, when anyone is found to be gravely disabled or to be a danger to themself or to others.
Exemption from full criminal punishment on such grounds dates back to at least the Code of Hammurabi. Legal definitions of insanity or mental disorder are varied, and include the M'Naghten Rule, the Durham rule, the 1953 British Royal Commission on Capital Punishment report, the ALI rule (American Legal Institute Model Penal Code rule), and other provisions, often relating to a lack of mens rea ("guilty mind"). In the criminal laws of Australia and Canada, statutory legislation enshrines the M'Naghten Rules, with the terms defense of mental disorder, defense of mental illness or not criminally responsible by reason of mental disorder employed. Being incapable of distinguishing right from wrong is one basis for being found to be legally insane as a criminal defense. It originated in the M'Naghten Rule, and has been reinterpreted and modernized through more recent cases, such as People v. Serravo.
In the United Kingdom, Ireland, and the United States, use of the defense is rare. Mitigating factors, including things not eligible for the insanity defense such as intoxication (or, more frequently, diminished capacity), may lead to reduced charges or reduced sentences.
The defense is based on evaluations by forensic mental health professionals
with the appropriate test according to the jurisdiction. Their
testimony guides the jury, but they are not allowed to testify to the
accused's criminal responsibility, as this is a matter for the jury to
decide. Similarly, mental health practitioners are restrained from
making a judgment on the "ultimate issue"—whether the defendant is
insane.
Some jurisdictions require the evaluation to address the
defendant's ability to control their behavior at the time of the offense
(the volitional limb). A defendant claiming the defense is pleading "not guilty by reason of insanity" (NGRI) or "guilty but insane or mentally ill"
in some jurisdictions which, if successful, may result in the defendant
being committed to a psychiatric facility for an indeterminate period.
Non compos mentis
Non compos mentis (Latin) is a legal term meaning "not of sound mind". Non compos mentis derives from the Latinnon meaning "not", compos meaning "having command" or "composed", and mentis (genitivesingular of mens), meaning "of mind". It is the direct opposite of Compos mentis (of a sound mind).
Although typically used in law, this term can also be used
metaphorically or figuratively; e.g. when one is in a confused state,
intoxicated, or not of sound mind. The term may be applied when a
determination of competency needs to be made by a physician for purposes
of obtaining informed consent
for treatments and, if necessary, assigning a surrogate to make health
care decisions. While the proper sphere for this determination is in a
court of law, this is practically, and most frequently, made by
physicians in the clinical setting.
In English law, the rule of non compos mentis was most commonly used when the defendant invoked religious or magical explanations for behaviour.
History
The concept of defense by insanity has existed since ancient Greece and Rome. However, in colonial America a delusionalDorothy Talbye was hanged in 1638 for murdering her daughter, as at the time Massachusetts's common law made no distinction between insanity (or mental illness) and criminal behavior. Edward II,
under English Common law, declared that a person was insane if their
mental capacity was no more than that of a "wild beast" (in the sense of
a dumb animal, rather than being frenzied). The first complete
transcript of an insanity trial dates to 1724. It is likely that the
insane, like those under 14, were spared trial by ordeal.
When trial by jury replaced this, the jury members were expected to
find the insane guilty but then refer the case to the King for a Royal
Pardon. From 1500 onwards, juries could acquit the insane, and detention
required a separate civil procedure. The Criminal Lunatics Act 1800, passed with retrospective effect following the acquittal of James Hadfield,
mandated detention at the regent's pleasure (indefinitely) even for
those who, although insane at the time of the offence, were now sane.
The M'Naghten Rules
of 1843 were not a codification or definition of insanity but rather
the responses of a panel of judges to hypothetical questions posed by
Parliament in the wake of Daniel M'Naghten's acquittal for the homicide of Edward Drummond, whom he mistook for BritishPrime MinisterRobert Peel.
The rules define the defense as "at the time of committing 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 as not to know that what he was doing was wrong." The key is that the defendant could not appreciate the nature of their actions during the commission of the crime.
In Ford v. Wainwright 477 U.S. 399 (1986), the US Supreme Court upheld the common law rule that the insane cannot be executed. It further stated that a person under the death penalty is entitled to a competency evaluation and to an evidentiary hearing in court on the question of their competency to be executed.
In Wainwright v. Greenfield, the Court ruled that it was fundamentally unfair for the prosecutor to comment during the court proceedings on the petitioner's silence invoked as a result of a Miranda warning. The prosecutor had argued that the respondent's silence after receiving Miranda warnings was evidence of his sanity.
Application
Incompetency and mental illness
An important distinction to be made is the difference between competency and criminal responsibility.
The issue of competency is whether a defendant is able to
adequately assist their attorney in preparing a defense, make informed
decisions about trial strategy and whether to plead guilty, accept a
plea agreement or plead not guilty. This issue is dealt with in UK law as "fitness to plead".
Competency largely deals with the defendant's present condition,
while criminal responsibility addresses the condition at the time the
crime was committed.
In the United States, a trial in which the insanity defense is invoked typically involves the testimony of psychiatrists or psychologists who will, as expert witnesses, present opinions on the defendant's state of mind at the time of the offense.
Therefore, a person whose mental disorder is not in dispute is
determined to be sane if the court decides that despite a "mental
illness" the defendant was responsible for the acts committed and will
be treated in court as a normal defendant. If the person has a mental
illness and it is determined that the mental illness interfered with the
person's ability to determine right from wrong (and other associated
criteria a jurisdiction may have) and if the person is willing to plead
guilty or is proven guilty in a court of law, some jurisdictions have an
alternative option known as either a Guilty but Mentally Ill (GBMI) or a Guilty but Insane
verdict. The GBMI verdict is available as an alternative to, rather
than in lieu of, a "not guilty by reason of insanity" verdict. Michigan
(1975) was the first state to create a GBMI verdict, after two
prisoners released after being found NGRI committed violent crimes
within a year of release, one raping two women and the other killing his
wife.
Temporary insanity
The notion of temporary insanity argues that a defendant was
insane during the commission of a crime, but they later regained their
sanity after the criminal act was carried out. This legal defense is
commonly used to defend individuals that have committed crimes of passion. The defense was first successfully used by U.S. CongressmanDaniel Sickles of New York in 1859 after he had killed his wife's lover, Philip Barton Key.
Diminished responsibility or diminished capacity can be employed
as a mitigating factor or partial defense to crimes. In the United
States, diminished capacity is applicable to more circumstances than the
insanity defense. The Homicide Act 1957 is the statutory basis for the
defense of diminished responsibility in England and Wales, whereas in
Scotland it is a product of case law. The number of findings of
diminished responsibility has been matched by a fall in unfitness to
plead and insanity findings.
A plea of diminished capacity is different from a plea of insanity in
that "reason of insanity" is a full defense while "diminished capacity"
is merely a plea to a lesser crime.
Withdrawal or refusal of defense
Several cases have ruled that persons found not guilty by reason of insanity may not withdraw the defense in a habeas petition to pursue an alternative, although there have been exceptions in other rulings. In Colorado v. Connelly,
700 A.2d 694 (Conn. App. Ct. 1997), the petitioner who had originally
been found not guilty by reason of insanity and committed for ten years
to the jurisdiction of a Psychiatric Security Review Board, filed a pro se writ of habeas corpus
and the court vacated his insanity acquittal. He was granted a new
trial and found guilty of the original charges, receiving a prison
sentence of 40 years.
In the landmark case of Frendak v. United States
in 1979, the court ruled that the insanity defense cannot be imposed
upon an unwilling defendant if an intelligent defendant voluntarily
wishes to forgo the defense.
Usage
This
increased coverage gives the impression that the defense is widely used,
but this is not the case. According to an eight-state study, the
insanity defense is used in less than 1% of all court cases and, when
used, has only a 26% success rate. Of those cases that were successful, 90% of the defendants had been previously diagnosed with mental illness.
Those found to have been not guilty by reason of mental disorder or insanity are generally then required to undergo psychiatric treatment in a mental institution, except in the case of temporary insanity (see below).
In England and Wales, under the Criminal Procedure (Insanity and
Unfitness to Plead) Act of 1991 (amended by the Domestic Violence, Crime
and Victims Act, 2004 to remove the option of a guardianship order),
the court can mandate a hospital order, a restriction order (where
release from hospital requires the permission of the Home Secretary), a
"supervision and treatment" order, or an absolute discharge.
Unlike defendants who are found guilty of a crime, they are not
institutionalized for a fixed period, but rather held in the institution
until they are determined not to be a threat. Authorities making this
decision tend to be cautious, and as a result, defendants can often be
institutionalized for longer than they would have been incarcerated in
prison.
Worldwide
Australia
In Australia there are nine law units, each of which may have different rules governing mental impairment defenses.
South Australia
In South Australia, the Criminal Law Consolidation Act 1935 (SA) provides that:
269C—Mental competence
A person is mentally incompetent to commit an offence if, at the
time of the conduct alleged to give rise to the offence, the person is
suffering from a mental impairment and, in consequence of the mental
impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an
offence if the person's mental processes are so disordered or impaired
that the person is—
(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b) unable to exercise (or to give rational instructions about the
exercise of) procedural rights (such as, for example, the right to
challenge jurors); or
(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
Victoria
In Victoria the current defence of mental impairment was introduced in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which replaced the common law defence of insanity and indefinite detention at the governor's pleasure with the following:
the accused was suffering from a mental impairment; and
the mental impairment affected the accused so they either did not
understand the nature and quality of the conduct, or did not know that
it was wrong.
These requirements are almost identical to the M'Naghten Rules, substituting "mental impairment" for "disease of the mind".
New South Wales
In New South Wales, the defence has been renamed the 'Defence of Mental Illness' in Part 4 of the Mental Health (Forensic Provisions) Act 1990.
However, definitions of the defence are derived from M'Naghten's case
and have not been codified. Whether a particular condition amounts to a
disease of the mind is not a medical but a legal question to be decided
in accordance with the ordinary rules of interpretation. This defence is an exception to the Woolmington v DPP (1935) 'golden thread',
as the party raising the issue of the defence of mental illness bears
the burden of proving this defence on the balance of probabilities. Generally, the defence will raise the issue of insanity. However, the prosecution can raise it in exceptional circumstances: R v Ayoub (1984).
Australian cases have further qualified and explained the M'Naghten Rules. The NSW Supreme Court has held there are two limbs to the M'Naghten Rules,
that the accused did not know what he was doing, or that the accused
did not appreciate that what he was doing was morally wrong, in both
cases the accused must be operating under a 'defect of reason, from a
disease of the mind'. The High Court in R v Porter stated that the condition of the accused's mind is relevant only at the time of the actus reus. In Woodbridge v The Queen
the court stated that a symptom indicating a disease of the mind must
be prone to recur and be the result of an underlying pathological
infirmity.
A ‘defect of reason’ is the inability to think rationally and pertains
to incapacity to reason, rather than having unsound ideas or difficulty
with such a task. Examples of disease of the mind include Arteriosclerosis (considered so because the hardening of the arteries affects the mind.
Canada
Criminal Code provisions
The defence of mental disorder is codified in section 16 of the Criminal Code which states, in part:
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder
that rendered the person incapable of appreciating the nature and
quality of the act or omission or of knowing that it was wrong.
To establish a claim of mental disorder the party raising the issue must show on a balance of probabilities
first that the person who committed the act was suffering from a
"disease of the mind", and second, that at the time of the offence they
were either 1) unable to appreciate the "nature and quality" of the act,
or 2) did not know it was "wrong".
The meaning of the word "wrong" was determined in the Supreme Court case of R. v. Chaulk[1990] 3 S.C.R. which held that "wrong" was NOT restricted to "legally wrong" but to "morally wrong" as well.
Post-verdict conditions
The current legislative scheme was created by the Parliament of Canada after the previous scheme was found unconstitutional by the Supreme Court of Canada in R. v. Swain. The new provisions also replaced the old insanity defense with the current mental disorder defence.
Once a person is found not criminally responsible ("NCR"), they
will have a hearing by a Review Board within 45 days (90 days if the
court extends the delay). A Review Board is established under Part XX.1
of the Criminal Code and is composed of at least three members, a
person who is a judge or eligible to be a judge, a psychiatrist and
another expert in a relevant field, such as social work, criminology or
psychology. Parties at a Review Board hearing are usually the accused,
the Crown and the hospital responsible for the supervision or assessment
of the accused. A Review Board is responsible for both accused persons
found NCR or accused persons found unfit to stand trial on account of
mental disorder. A Review Board dealing with an NCR offender must
consider two questions: whether the accused is a "significant threat to
the safety of the public" and, if so, what the "least onerous and least
restrictive" restrictions on the liberty of the accused should be in
order to mitigate such a threat. Proceedings before a Review Board are
inquisitorial rather than adversarial. Often the Review Board will be
active in conducting an inquiry. Where the Review Board is unable to
conclude that the accused is a significant threat to the safety of the
public, the review board must grant the accused an absolute discharge,
an order essentially terminating the jurisdiction of the criminal law
over the accused. Otherwise, the Review Board must order that the
accused be either discharged subject to conditions or detained in a
hospital, both subject to conditions. The conditions imposed must be the
least onerous and least restrictive necessary to mitigate any danger
the accused may pose to others.
Since the Review Board is empowered under criminal law powers under s. 91(27) of the Constitution Act, 1867
the sole justification for its jurisdiction is public safety.
Therefore, the nature of the inquiry is the danger the accused may pose
to public safety rather than whether the accused is "cured". For
instance, many "sick" accused persons are discharged absolutely on the
basis that they are not a danger to the public while many "sane" accused
are detained on the basis that they are dangerous. Moreover, the notion
of "significant threat to the safety of the public" is a "criminal
threat". This means that the Review Board must find that the threat
posed by the accused is of a criminal nature.
While proceedings before a Review Board are less formal than in
court, there are many procedural safeguards available to the accused
given the potential indefinite nature of Part XX.1. Any party may appeal
against the decision of a Review Board.
In 1992 when the new mental disorder provisions were enacted,
Parliament included "capping" provisions which were to be enacted at a
later date. These capping provisions limited the jurisdiction of a
Review Board over an accused based on the maximum potential sentence had
the accused been convicted (e.g. there would be a cap of 5 years if the
maximum penalty for the index offence is 5 years). However, these
provisions were never proclaimed into force and were subsequently
repealed.
A Review Board must hold a hearing every 12 months (unless extended to 24 months) until the accused is discharged absolutely.
Accused unfit to stand trial
The
issue of mental disorder may also come into play before a trial even
begins if the accused's mental state prevents the accused from being
able to appreciate the nature of a trial and to conduct a defence.
An accused who is found to be unfit to stand trial is subject to
the jurisdiction a Review Board. While the considerations are
essentially the same, there are a few provisions which apply only to
unfit accused. A Review Board must determine whether the accused is fit
to stand trial. Regardless of the determination, the Review Board must
then determine what conditions should be imposed on the accused,
considering both the protection of the public and the maintenance of the
fitness of the accused (or conditions which would render the accused
fit). Previously an absolute discharge was unavailable to an unfit
accused. However, in R. v. Demers, the Supreme Court of Canada
struck down the provision restricting the availability of an absolute
discharge to an accused person who is deemed both "permanently unfit"
and not a significant threat to the safety of the public. Presently a
Review Board may recommend a judicial stay of proceedings in the event
that it finds the accused both "permanently unfit" and non-dangerous.
The decision is left to the court having jurisdiction over the accused.
An additional requirement for an unfit accused is the holding of a
"prima facie case" hearing every two years. The Crown must demonstrate
to the court having jurisdiction over the accused that it still has
sufficient evidence to try the accused. If the Crown fails to meet this
burden then the accused is discharged and proceedings are terminated.
The nature of the hearing is virtually identical to that of a preliminary hearing.
Denmark
In
Denmark a psychotic person who commits a criminal defense is declared
guilty but is sentenced to mandatory treatment instead of prison.
Section 16 of the penal code states that "Persons, who, at the time of
the act, were irresponsible owing to mental illness or similar
conditions or
to a pronounced mental deficiency, are not punishable".
This means that in Denmark, 'insanity' is a legal term rather than a
medical term and that the court retains the authority to decide whether
an accused person is irresponsible.
Finland
In Finland, punishments can only be administered if the accused is compos mentis, of sound mind; not if the accused is insane (syyntakeeton, literally "unable to guarantee [shoulder the responsibility of] guilt"). Thus, an insane defendant may be found guilty based on the facts
and their actions just as a sane defendant, but the insanity will only
affect the punishment. The definition of insanity is similar to the
M'Naught criterion above: "the accused is insane, if during the act, due
to a mental illness, profound mental retardation or a severe disruption
of mental health or consciousness, he cannot understand the actual
nature of his act or its illegality, or that his ability to control his
behavior is critically weakened". If an accused is suspected to be
insane, the court must consult the National Institute for Health and Welfare (THL), which is obliged to place the accused in involuntary commitment
if they are found insane. The offender receives no judicial punishment;
they become a patient under the jurisdiction of THL, and must be
released immediately once the conditions of involuntary commitment are
no longer fulfilled. Diminished responsibility is also available,
resulting in lighter sentences.
Germany
According to section 20 of the German criminal code,
those who commit an illegal act because a mental disorder makes them
unable to see the wrong of the act or to act on this insight is
considered not guilty.
Norway
In
Norway, psychotic perpetrators are declared guilty but not punished and,
instead of prison, they are sentenced to mandatory treatment. Section
44 of the penal code states specifically that "a person who at the time
of the crime was insane or unconscious is not punished".
It is the responsibility of a criminal court to consider whether the
accused may have been psychotic or suffering from other severe mental
defects when perpetrating a criminal act. Thus, even though he himself
declared to be sane, the court hearing the case of Anders Behring Breivik considered the question of his sanity.
Japan
If the
ability to recognize the right or wrong of action or the ability to act
accordingly is lost due to a mental disorder, then the defendant cannot
be pursued under Japanese criminal law so if this is recognized during a
trial then an innocent judgment will be given. This is, however, rare,
happening in only around 1 in 500,000 cases.
Poland
Insanity is determined through a judicial decision issued on the basis of expert opinions of psychiatrists and psychologists.
Russia
A
forensic psychiatric examination is used to establish insanity. The
result of the forensic examination is then subjected to a legal
assessment, taking into account other circumstances of the case, from
which a conclusion is drawn about the defendant's sanity or insanity.
The Criminal Code of Russia
establishes that a person who during the commission of an illegal act
was in a state of insanity, that is, could not be aware of the actual
nature and social danger of their actions or was unable to control them
due to a chronic mental disorder, a temporary mental disorder, or
dementia is not subject to criminal liability.
Sweden
In
Sweden, psychotic perpetrators are seen as accountable, but the sanction
is, if they are psychotic at the time of the trial, forensic mental
care.
United Kingdom
Although use of the insanity defense is rare, since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, insanity pleas have steadily increased in the UK.
Scotland
The Scottish Law Commission, in its Discussion Paper No 122 on Insanity and Diminished Responsibility (2003), pp. 16/18, confirms that the law has not substantially changed from the position stated in Hume's Commentaries:
We may next attend to the case of those unfortunate persons, who
have plead the miserable defense of idiocy or insanity. Which
condition, if it is not an assumed or imperfect, but a genuine and
thorough insanity, and is proved by the testimony of intelligent
witnesses, makes the act like that of an infant, and equally bestows the
privilege of an entire exemption from any manner of pain; Cum alterum innocentia concilii tuetur, alterum fati infelicitas excusat.
I say, where the insanity is absolute, and is duly proved: For if
reason and humanity enforce the plea in these circumstances, it is no
less necessary to observe a caution and reserve in applying the law, as
shall hinder it from being understood, that there is any privilege in a
case of mere weakness of intellect, or a strange and moody humor, or a
crazy and capricious or irritable temper. In none of these situations
does or can the law excuse the offender. Because such constitutions are
not exclusive of a competent understanding of the true state of the
circumstances in which the deed is done, nor of the subsistence of some
steady and evil passion, grounded in those circumstances, and directed
to a certain object. To serve the purpose of a defense in law, the
disorder must therefore amount to an absolute alienation of reason, ut continua mentis alienatione, omni intellectu careat
- such a disease as deprives the patient of the knowledge of the true
aspect and position of things about them - hinders them from
distinguishing friend from foe - and gives them up to the impulse of
their own distempered fancy.
The phrase "absolute alienation of reason" is still regarded as at the core of the defense in the modern law (see HM Advocate v Kidd (1960) JC 61 and Brennan v HM Advocate (1977)
United States
In
the United States, variances in the insanity defense between states,
and in the federal court system, are attributable to differences with
respect to three key issues:
Availability: whether the jurisdiction allows a defendant to raise the insanity defense,
Definition: when the defense is available, what facts will support a finding of insanity, and
Burden of proof: whether the defendant has the duty of proving insanity or the prosecutor has the duty of disproving insanity, and by what standard of proof.
In
the United States, a criminal defendant may plead insanity in federal
court, and in the state courts of every state except for Idaho, Kansas,
Montana, and Utah. However, defendants in states that disallow the insanity defense may
still be able to demonstrate that a defendant was not capable of forming
intent to commit a crime as a result of mental illness.
In Kahler v. Kansas (2020), the U.S. Supreme Court held, in a 6–3 ruling, that a state does not violate the Due Process Clause
by abolishing an insanity defense based on a defendant's incapacity to
distinguish right from wrong. The Court emphasized that state
governments have broad discretion to choose laws defining "the precise
relationship between criminal culpability and mental illness."
Definition
Each
state and the federal court system currently uses one of the following
"tests" to define insanity for purposes of the insanity defense. Over
its decades of use the definition of insanity has been modified by
statute, with changes to the availability of the insanity defense, what
constitutes legal insanity, whether the prosecutor or defendant has the burden of proof,
the standard of proof required at trial, trial procedures, and to
commitment and release procedures for defendants who have been acquitted
based on a finding of insanity.
M'Naghten test
The guidelines for the M'Naghten Rules,
state, among other things, and evaluating the criminal responsibility
for defendants claiming to be insane were settled in the British courts
in the case of Daniel M'Naghten in 1843. M'Naghten was a Scottish woodcutter who killed the secretary to the prime minister, Edward Drummond,
in a botched attempt to assassinate the prime minister himself.
M'Naghten apparently believed that the prime minister was the architect
of the myriad of personal and financial misfortunes that had befallen
him.
During his trial, nine witnesses testified to the fact that he was
insane, and the jury acquitted him, finding him "not guilty by reason of
insanity".
The House of Lords asked the judges of the common law courts to answer five questions on insanity as a criminal defence,
and the formulation that emerged from their review—that a defendant
should not be held responsible for their actions only if, as a result of
their mental disease or defect, they (i) did not know that their act
would be wrong; or (ii) did not understand the nature and quality of
their actions—became the basis of the law governing legal responsibility
in cases of insanity in England. Under the rules, loss of control
because of mental illness was no defense.
The M'Naghten rule was embraced with almost no modification by American
courts and legislatures for more than 100 years, until the mid-20th
century.
Durham/New Hampshire test
The strict M'Naghten standard for the insanity defense was widely used until the 1950s and the case of Durham v. United States case. In the Durham case, the court ruled that a defendant is entitled to acquittal if the crime was the product of
their mental illness (i.e., crime would not have been committed but for
the disease). The test, also called the Product Test, is broader than
either the M'Naghten test or the irresistible impulse test.
The test has more lenient guidelines for the insanity defense, but it
addressed the issue of convicting mentally ill defendants, which was
allowed under the M'Naghten Rule. However, the Durham standard drew much criticism because of its expansive definition of legal insanity.
Model Penal Code test
The Model Penal Code, published by the American Law Institute,
provides a standard for legal insanity that serves as a compromise
between the strict M'Naghten Rule, the lenient Durham ruling, and the
irresistible impulse test. Under the MPC standard, which represents the
modern trend, a defendant 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 criminality
of their conduct or to conform their conduct to the requirements of the
law." The test thus takes into account both the cognitive and volitional capacity of insanity.
Federal courts
After the perpetrator of President Reagan's assassination attempt was found not guilty by reason of insanity, Congress passed the Insanity Defense Reform Act of 1984. Under this act, the burden of proof was shifted from the prosecution to the defense and the standard of evidence in federal trials was increased from a preponderance of evidence to clear and convincing evidence.
The ALI test was discarded in favor of a new test that more closely
resembled M'Naghten's. Under this new test only perpetrators suffering
from severe mental illnesses at the time of the crime could successfully
employ the insanity defense. The defendant's ability to control himself
or herself was no longer a consideration.
The Act also curbed the scope of expert psychiatric testimony and
adopted stricter procedures regarding the hospitalization and release
of those found not guilty by reason of insanity.
Those acquitted of a federal offense by reason of insanity have
not been able to challenge their psychiatric confinement through a writ of habeas corpus or other remedies. In Archuleta v. Hedrick, 365 F.3d 644 (8th Cir. 2004), the U.S. Court of Appeals for the Eighth Circuit
the court ruled persons found not guilty by reason of insanity and
later want to challenge their confinement may not attack their initial
successful insanity defense:
The appellate court affirmed the
lower court’s judgment: "Having thus elected to make himself a member of
that ‘exceptional class’ of persons who seek verdicts of not guilty by
reason of insanity...he cannot now be heard to complain of the statutory
consequences of his election." The court held that no direct attack
upon the final judgment of acquittal by reason of insanity was possible.
It also held that the collateral attack that he was not informed that a
possible alternative to his commitment was to ask for a new trial was
not a meaningful alternative.
Guilty but mentally ill
As an alternative to the insanity defense, some jurisdictions permit a defendant to plead guilty but mentally ill.
A defendant who is found guilty but mentally ill may be sentenced to
mental health treatment, at the conclusion of which the defendant will
serve the remainder of their sentence in the same manner as any other
defendant.
Burden of proof
In a majority of states, the burden of proving insanity is placed on the defendant, who must prove insanity by a preponderance of the evidence.
In a minority of states, the burden is placed on the prosecution, who must prove sanity beyond reasonable doubt.
In federal court, and in Arizona, the burden is placed on the defendant, who must prove insanity by clear and convincing evidence. See 18 U.S.C.S. Sec. 17(b); see also A.R.S. Sec. 13-502(C).
Controversy
The insanity plea is used in the U.S Criminal Justice System in less than 1% of all criminal cases. Little is known about the criminal justice system and the mentally ill:
[T]here is no definitive
study regarding the percentage of people with mental illness who come
into contact with police, appear as criminal defendants, are
incarcerated, or are under community supervision. Furthermore, the scope
of this issue varies across jurisdictions. Accordingly, advocates
should rely as much as possible on statistics collected by local and
state government agencies.
Some U.S. states have begun to ban the use of the insanity defense, and in 1994 the Supreme Court denied a petition of certiorari seeking review of a Montana Supreme Court case that upheld Montana's abolition of the defense. Idaho, Kansas, and Utah have also banned the defense. However, a mentally ill defendant/patient can be found unfit to stand trial in these states. In 2001, the Nevada Supreme Court found that their state's abolition of the defense was unconstitutional as a violation of Federal due process. In 2006, the Supreme Court decided Clark v. Arizona
upholding Arizona's limitations on the insanity defense. In that same
ruling, the Court noted "We have never held that the Constitution
mandates an insanity defense, nor have we held that the Constitution
does not so require." In 2020, the Supreme Court decided Kahler v. Kansas
upholding Kansas' abolition of the insanity defense, stating that the
Constitution does not require Kansas to adopt an insanity test that
turns on a defendant's ability to recognize that their crime was morally
wrong.
The insanity defense is also complicated because of the
underlying differences in philosophy between psychiatrists/psychologists
and legal professionals.
In the United States, a psychiatrist, psychologist or other mental
health professional is often consulted as an expert witness in insanity
cases, but the ultimate legal judgment of the defendant's sanity
is determined by a jury, not by a mental health professional. In other
words, mental health professionals provide testimony and professional
opinion but are not ultimately responsible for answering legal
questions.
If you are reading this, you probably had a linear algebra class and remember your professor mentioning two strange words: Eigenvector and Eigenvalue. Maybe you remember the equation. However, WHAT ARE THEY?
The best short definition that I can give is:
“Eigenvectors are the vectors that stay parallel after a matrix transformation”
Still confused? I am sure you’ll understand by the end of this article.
In words, we want to find the scalar lambda “λ”and the nonzero vector “v” such that the equation holds.
Let’s do some algebraic magic to find a solution. In order to solve the equation as a matrix subtraction, we want to use the IDENTITY matrix as follows:
HOW TO FIND THEM?
Since we established the vector“v”is not the trivial solution (zero vector), we will use the DETERMINANTas a tool.
In
other words, we know that if a square matrix has a zero determinant, it
has an infinite number of solutions. Thus, the eigenvalues are the lambda “λ” scalars for which the matrix below has a zero determinant:
DETERMINANT
Once we calculate these special values (eigenvalues), we can find the associated eigenvectors to each eigenvalue.
Let’s work on an example to see what this is all about!
This, is a graphical representation of matrix “A”by its decomposition into two different vectors (basis vectors):
BASIS VECTORS
We use the identity matrix to solve for the eigenvalues:
At this point, we have to use the quadratic equation to get the values for lambda “λ”:
If you don’t remember how to calculate the determinant of a matrix, you can check this post: “Determinant of a matrix”
Before calculating the eigenvalues, we need to grasp the concept of matrices as a transformation of vectors and the Cartesian Plane (This VIDEO
explains well the graphical meaning of matrices as linear
transformations and how seeing them in action helps to understand linear
algebra better).
……………………………
“Unfortunately, no one can be told what the Matrix is. You have to see it for yourself”
- Morpheus
…………………………………..
Thus, let me show you a matrix:
As
you can see in the picture below, a matrix transforms all the points in
the plane (represented as vectors with coordinates in the X and Y axis
for the 2D case).
Now, we can find the eigenvectors using the initial equation:
For lambda(1) “λ(1)” = -3
In fact, the eigenvector associated with -3 is any non-zero multiple of the “e(1)”. Thus, “e(1)”spans the set of eigenvectors associated with the eigenvalue “λ(1)” -3.
For lambda(2) “λ(2)” = 4
In the same manner, the eigenvector associated with 4 is any non-zero multiple of “e(2)”. Thus, “e(2)”spans the set of eigenvectors associated with the eigenvalue “λ(2)” 4.
Finally, let’s see what happens when we transform any vector other than vectors from the span of “e(1)” and “e(2)”:
As you can see: The vector didn’t stay parallel after the transformation and that’s why it’s not an eigenvector!
