Pregledni rad
Historical development of dealing with mentally disordered offenders in England
Zlata Đurđević
Sažetak
In the pre-Norman period in England a distinction between criminal and civil wrongs was not constituted. The secular codes treated homicide and injuries as matters for compensations under the threat of the feud. Liability for the wrong was objective and collective. The problem presented by insane violence was solved by the rule that it was for the insane offender’s kin to pay compensation and to look after him or her. In the eleventh century the criminal law was established but the criminal procedure was still irrational and the offender who was locally known to be insane was not presented for trial. When in the twelfth century the trial by ordeal was replaced by the petty juries, the insane offender was no longer exempt form trial. The petty jury had to decide whether the accused had committed the offence and whether he or she was insane. If these facts were determined, due to the ecclesiastical insistence on the importance of mens rea, the severe consequences of the principle of strict liability and harsh punishment were circumvented by the King’s mercy. By the end of the middle ages the jury was allowed not only to decide that the accused was insane but applying the Bracton’s “wild beast” test to acquit him or her. The “wild beast” test required that the insanity must have completely deprived the offenders of reason, so that they did not know what they were doing.
In the fourteenth century two tests of criminal insanity were created. For persons with a severe degree of stupidity a defence of insanity was provided by a primitive intelligence test. For dealing with the insane offenders the insanity defence by “wild beast” test was replaced by the “right-wrong” test which according to the analogy of the child offender required that the insane offender is not able to distinguish right from wrong. The consequence of acquittal on the grounds of insanity was or a plain acquittal or a special verdict. In both cases the offenders would be confined under the common law “until they recovered their senses” only if they constitute a continuing danger to others. In the middle of the nineteenth century the appropriate legal rules for exemption from criminal liability of insane offenders were established. In 1843 the existing “right-wrong” test was replaced with the test of “criminal insanity” formulated in the M’Naghten’s Case. So called M’Naghten Rules defined insanity as a “defect of reason from disease of the mind” which caused that the offender did not know the nature and quality of the act or he or she did not know that he or she was doing wrong. The jury in England still decides the issue of insanity according to M’Naghten Rules.
The insane offender who was unfit to be tried was since fourteenth century treated as the deaf-mute and the man who refuses to plead. If the accused made no reply when asked for his of her plea the court had to decide “Is he mute of malice, or by the visitation of God?”. In the case of insanity the jury performed an “inquest of office” to decide whether the lunacy was real or feigned. If it was dismissed as feigned, the accused should be condemned to the peine forte et dure. If the jury decided that the lunacy was real, the trial should be deferred until he or she recovered. The basis for the law related to the unfitness to plead was laid in the Pritchard’s Case in 1836. However, the cases of accused unfit to be tried were quite rare until the creation of a prison medical service and the Prison Act of 1865 when the burden of proof was placed not only on the defence but also on the prosecution and the court.
Since 1800 the proof of the insanity and the unfitness to plead did not lead to an acquittal but to a special verdict. Provoked by Hadfield’s case, the Criminal Lunatic Act abolished the plain acquittal of insane offenders and henceforth the criminal court was obliged to order the confinement of an insane offender at the same time as it pronounced him or her by special verdict “not guilty by reason of insanity”. After the Queen Victoria’s intervention in 1883 until the 1964 the wording of the special verdict was changed to “guilty, but insane” but the criminal judges have continued to commit insane offenders to custody “until His Majest’ys pleasure be known”.
Ključne riječi
English criminal law; English criminal procedure; psychiatric law; mental disorder; mentally disordered offenders; historical development; guilt; insanity; unfitness to pleas
Hrčak ID:
5112
URI
Datum izdavanja:
20.4.2006.
Posjeta: 3.760 *