Insanity and the death penalty.

Over the last 280 years or so the law has progressively recognised insanity as an issue and realised that the insane require treatment rather than punishment. Below we look at the progress of this and some of the cases that shaped the law in England up to 1957.

One of the earliest recorded cases of insanity being used a defence was Rex v Arnold in 1724. Edward Arnold was tried at Kingston, Surrey for shooting at Lord Onslow and claimed in court that the reason he had done so was because Onslow had bewitched him and had sent into his “chamber devils and imps”, that had “invaded his bosom such that he could not sleep”. Arnold’s relatives testified that he suffered from delusions. The trial judge, Mr. Justice Tracy instructed the jury that to acquit they had to decide whether the accused is totally deprived of his understanding and memory and knew what he was doing "no more than a wild beast or a brute, or an infant". This instruction became known as “the wild-beast test”. Arnold was convicted and sentenced to death but was reprieved at the urging of his victim, Lord Onslow.

Although Arnold’s defence failed juries could now deliver a “special verdict” of not guilty by reason of insanity, even if the defendant knew what he had actually done (the actus rea or guilty act) but did not know that it was wrong and therefore lacked the mens rea or guilty mind due to his insanity.

The next significant development came in 1760 at the trial of Lawrence Shirley, the 4th Earl Ferrers (click here case details). Ferrers was convicted of the murder of John Johnson, his estate steward. At his trial on the 16th of April 1760 he attempted a defence of insanity. Many who knew him thought him to be insane and testified to this. The Solicitor General led the prosecution and pointed out to the court that Ferrers should be found guilty unless it could be shown that he did not possess sufficient mental capacity to understand the consequences of his action. Ferrers having to defend himself. Ferrers’ fellow peers accepted this concept and he was duly hanged at Tyburn.

James Hadfield was tried for treason at the Court of King’s Bench on the 26th of June 1800 for having shot at the king, George III, at the Theatre Royal in Drury Lane, London on the 15th of May of that year. As it was a treason trial the law permitted Hadfield defence counsel, in the person of the Honourable Thomas Erskine. Because of the nature of the case it was heard by the Lord Chief Justice and two other senior judges and prosecuted by both the Attorney General and Solicitor General. Thomas Erskine challenged the prevailing legal definition of insanity, telling the court that a person could “know what he was about”, but be unable to resist his “delusion”. Erskine was able to get Hadfield examined by Dr. John Monro from the Bethlem (Bedlam) Hospital who testified that Hadfield suffered from delusions, most probably brought on by serious head injuries received during the war with France in 1794. Erskine told the court that Hadfield believed that God talked to him all the time and had told him that the world was about to end. By shooting at the king Hadfield knew that he would be executed and thus spared from committing suicide, in itself considered both a crime and a sin. The defence proved successful and Hadfield was acquitted and sent to Bethlem Hospital, Britain’s first mental hospital, in St. George’s Fields in Southwark, London.

Hadfield’s case led to the Criminal Lunatics Act of 1800 which provided that “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 seem fit, until His Majesty's pleasure shall be known.” Prior to this Act people who were found insane could be freed and placed into the care of their family as there was no direct legal power to detain them and a separate civil committal proceeding had to be instituted.

The County Asylums Act of 1808 established institutions for the criminally insane and allowed for treatment rather than just incarceration. The first asylum under this Act opened in Northampton in 1811 and the number of county asylums had reached nine by 1827.

Britain does not have a history of assassination of its political leaders but on the 11th of May 1812 just such an event occurred when John Bellingham shot and killed the Prime Minister, Sir Spencer Perceval, whom he blamed personally for all his problems. He was arrested at the scene and tried four days later. His defence lawyer applied to have the trial postponed so that he could collect sufficient evidence of insanity but this was rejected by the Lord Chief Justice, James Mansfield and therefore Bellingham was convicted and hanged at Newgate on the 18th of May 1812. In his summing up Lord Mansfield told the jury that “there is a species of insanity where people take particular fancies into their heads, who are perfectly sane and sound of mind on all other subjects, but this is not a species of insanity which can excuse any person who has committed a crime, unless it so affects his mind at the particular period when he commits the crime as to disable him from distinguishing between good and evil or to judge the consequences of his actions.”

A landmark case in 1843 that was to shape the future of the legal definition of insanity for well over a century was that of Daniel M’Naughten who killed Edward Drummond, Sir Robert Peel’s private secretary, on the 20th of January 1843. The intended victim was again the Prime Minister, but M’Naughten mistook Drummond for the Prime Minister and as he left Peel’s house, followed him and shot him in the back with a single round. M’Naughten was arrested at the scene before he could fire again. He believed that Peel and others were watching his every move and conspiring against him to destroy him. On the 27th of February M’Naughten came to trial at the Old Bailey before Mr. Justice Tindal and evidence of his insanity was placed before the jury. His father told them that his son had suffered from delusions of persecution as a teenager. M’Naughten had been examined in prison awaiting trial by various doctors who specialised in treating lunatics, as they were then known, who testified to his insanity and delusional behaviour. One of these introduced the concept of monomania and felt that the delusions “operated to the extent of depriving M’Naughten of all self-control.” Mr. Justice Tindal told the jury “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.” The jury found in his favour and M’Naughten was acquitted, being committed to the Bethlem Hospital for the insane. The verdict caused considerable public concern, so the Lord Chancellor, Lord Lyndhurst opened a debate on the subject of criminal responsibility in the House of Lords in March 1843 which led to the formulation of the famous M’Naughten Rules. These state that: "To establish a defence on the ground of insanity, it must clearly be 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 was wrong"

The Lunacy Act of 1845 created the Lunacy Commission under the chairmanship of the 7th Earl of Shaftesbury, Anthony Ashley Cooper, who held the position for 40 years. The Commission focussed on getting insane people transferred from county gaols and workhouses into properly run asylums which were regulated by the County Asylums Act of 1845.
The Lunacy Act changed the status of mentally ill people from prisoners to patients. As a patient in an asylum, a person could be released on the advice of their doctors if it was felt that they had recovered. Theoretically they could be sent to prison to serve out what would have been their sentence had they been deemed sane but in practice this rarely happened.

Parliament passed the Trial of Lunatics Act on the 25th of August 1883 which permitted juries to find a special verdict of not guilty by reason of insanity. The Queen herself (Queen Victoria) was unhappy with this and requested that the verdict be changed to “guilty but insane”. She had been the victim of no less than eight attacks by insane persons and therefore had a genuine personal interest in the outcome of cases. A new book on these attacks, entitled “the Queen! The Eight Assassination Attempts on Queen Victoria” by Barrie Charles is available from Amberley Publishing at http://www.amberleybooks.com/

The first reading of the Criminal Lunatics Bill, took place in parliament on the 19th of June 1884. One of its provisions was to require the Home Secretary to order a medical examination, by two qualified medical practitioners, of any prisoner under sentence of death, where there was reason to believe that the prisoner was insane. Where such evidence was found the person was automatically reprieved and sent to Broadmoor Criminal Lunatic Asylum, to give it its original full title, which started taking patients from 1864. The Home Secretary could order a person accused of a felony who was certified as insane either before or after a trial to be committed to an asylum. Such persons became known as “Secretary of State’s lunatics”. This power was frequently used at the time. In 1884/5 no less than 938 criminal lunatics were identified of whom 163 were sent to mental hospitals by order of the Secretary of State, prior to trial.

A Committee on Insanity and Crime was set up in 1923 under the chairmanship of Lord Justice Atkin which examined the issues and reported on the 1st of November 1923. It recommend that it should be recognised that a person charged with an offence is not responsible for his act when the act is committed under an impulse which the prisoner was, by mental disease, in substance deprived of any power to resist. The report pointed to the verdicts of insanity in the cases of young mothers who murdered their infant children, something that they knew to be wrong but something they were driven to do by an irresistible impulse. Under M’Naughten if they could be shown to have known their action was wrong then they would have been responsible for it. Two other recommendations were that accused persons should not be found on arraignment unfit to plead except on the evidence of at least two doctors, save in very clear cases, and that provision should be made under Home Office regulations for examination of an accused person by an expert medical adviser at the request of the prosecution, the defence, or the committing magistrate.

The 1930 Select Committee on Capital Punishment and the Royal Commission on Capital Punishment that reported in 1953 also examined the issue of sanity, but in both cases their recommendations were rejected. The judiciary were unhappy with defences of partial insanity and irresistible impulses and it was argued that such concepts would lead to “total abandonment of criminal responsibility”.

By 1947 there were four stages at which the sanity or otherwise of a person charged with murder could be considered. These were:

Prior to trial, whereby the person could be certified insane and committed to Broadmoor under the provisions of Section 2 of the Criminal Lunatics Act of 1884.

At trial, if in accordance with Section 2 of the Criminal Lunatics Act of 1800 the accused appears to the jury to be insane. 49 instances of this occurred between 1900 and 1949.

Under the Trial of Lunatics Act of 1883 where evidence existed of insanity at the time of the crime was committed, the accused was to be committed to Broadmoor at Her Majesty’s Pleasure. Typically an accused was examined by a prison medical officer, whilst on remand, who would reach the conclusion that they were insane. 428 people were found to be insane out of 3,130 people who were committed for trial for murder between 1900 and 1949.

Section 2 of the Criminal Lunatics Act of 1884 required the Secretary of State (Home Secretary) where a condemned prisoner appeared to be insane to appoint two or more doctors to examine the person and inquire in to their sanity (statutory enquiry). If they concluded that the prisoner was insane then the Home Secretary would automatically issue a reprieve and have the prisoner transferred to Broadmoor.

A detailed analysis of 33 murder cases in which the defendant was reprieved after statutory enquiry between 1923 and 1950 showed that in 15 instances a defence of insanity was not mounted at trial, four instances of the defendant pleading guilty, five cases where the defence was insanity but the evidence put before the jury was too weak to support that finding. In the remaining 12 cases the person was found guilty under the provisions of the M’Naughten Rules but subsequently reprieved.

A total of 1080 men and 130 women were convicted of murder between 1900 and 1949 and medical inquiries were held in the cases of 186 men and six women (16% of the total). These resulted in 46 men and two women being certified insane and a further 36 men and one woman being reprieved on the grounds of their mental state. 94 men and two women were executed after the statutory enquiry failed to show insanity.

In the period 1900 – 1957 it has to be remembered that the death sentence was mandatory upon conviction for murder and therefore a defence of insanity was often attempted as the only way to save the prisoner from the gallows. It is notable that post abolition, insanity defences became much rarer.

One of the most extraordinary cases of multiple murder committed by a severely mentally ill person is that of John Thomas Straffen. Twenty one year old Straffen had had a troubled childhood and was in a mental institution from 1947 to February 1951 after assaulting a child. In August 1951, he strangled two little girls in Bath, five year old Brenda Goddard and nine year old Cicely Batstone, but was found unfit to plead at his trial by reason of insanity and sent to Broadmoor.
On the 29th of April 1952, he escaped and strangled five year old Linda Bowyer before being recaptured the following day. He was convicted of this murder as the jury decided he was sane and sentenced to hang, but reprieved on the grounds of insanity after his appeal had been dismissed. He was never released and became Britain's longest serving prisoner, dying at Frankland prison in County Durham on the 19th of November 2007 at the age of 77. Strangely he spent all of his incarceration actually in prisons and was never transferred to a secure mental hospital unlike Moors Murderer, Ian Brady.

The Home Office went to a great deal of trouble to investigate the sanity or otherwise of people facing a potential death penalty as evidenced by the case of Ruth Ellis, the last woman to be hanged in Britain. Ruth could well be classed as abnormal (click here for the full details of her case). Arrested immediately after the shooting of her boyfriend she was remanded to Holloway prison where she was placed in the hospital wing and kept under observation day and night. The Principal Medical Officer, M. R. Penry Williams, examined her and interviewed her twice, but found no evidence of mental illness. Ruth consented to and undertook an electro-encephalograph examination on the 3rd of May 1955. This also failed to find any evidence of brain abnormality. She was further examined by Dr. D. Whittaker, a psychiatrist for the defence, on June the 4th and by Dr. A. Dalzell on behalf of the Home Office, on the 9th of June. Neither man found any evidence of insanity. Ruth discussed her feelings on the days leading up to and including the murder with Dr. Dalzell, and he reported to the Home Office that he found no evidence of delusions, hallucinations or other form of mental illness. She was thus considered legally sane and responsible for her actions.

Section 2 (1) of the Homicide Act of 1957 introduced the concept of diminished responsibility and where this defence was successful it reduced a charge of murder to manslaughter and permitted judges a range of sentences from life in prison, commitment to a mental hospital or even an absolute discharge. The Act stated that: “Where a person kills, or is party to the killing of another, he shall not be convicted of murder but shall be convicted of manslaughter, if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing”.

In 2000, the Law Lords significantly widened the defence of provocation by recognising that people subject to severe abuse may argue that their loss of self-control was caused, not just by anger, but by fear and despair.

This became know as the "battered woman" defence and removed the need to prove that the provocation occurred immediately before the killing as had been previously required. There had been several cases of women killing their abusive partners whilst, for instance, they were asleep. Previously this had not been accepted but it came to be understood that this was the only time that the woman could overpower the man whom had he been awake would have attacked her again.

It is important to realise the distinction between legal insanity and abnormality of personality, where a person can still be held responsible for their actions. One could argue that all murderers are abnormal because normal people do not kill others as a means of resolving a problem.

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