Mental Disorders

What is the main legislation used for mental illness defences?

Criminal Procedure (Scotland) Act 1995

(as amended by the Criminal Justice and Licensing (Scotland) Act 2010)

What does the new provisions of the Criminal Procedure (Scotland) Act 1995 cover?

• Unfitness for trial

• Lack of criminal responsibility by reason of mental disorder

• Diminished Responsibility

Unfitness for trial

The plea is used to ascertain whether it would be fair for the trial to go ahead.

The test is whether or not the accused is “incapable, by reason of a mental or physical condition, of participating effectively in a trial.”

It does apply to physical conditions too but only in the cases where the accused is completely unable of communication (e.g. writing would be fine)

Loss of memory as to the event constituting the crime does not on its own establish unfitness for trial.

What happens when an accused is deemed ‘unfit for trial’

The court conducts an ‘examination of facts’ (EOF) to determine if the accused committed the act or omission constituting the offence, followed by a decision on the appropriate course of action.

What section of the act covers ‘unfitness for trial’

s 53F of the Criminal Procedure (Scotland) Act 1995

s 53F of the Criminal Procedure (Scotland) Act 1995

(1): A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial. 

(2) In determining whether a person is unfit for trial the court is to have regard to— 

(a) the ability of the person to— 

(i) understand the nature of the charge, 

(ii) understand the requirement to tender a plea to the charge and the effect of such a plea, 

(iii) understand the purpose of, and follow the course of, the trial, 

(iv) understand the evidence that may be given against the person, 

(v) instruct and otherwise communicate with the person’s legal representative, and 

(b) any other factor which the court considers relevant. 

 

2. The court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge. 

Lack of criminal responsibility by a reason of mental disorder

Deemed a special defence, which, if proved, results in acquittal, although the accused may nonetheless be subject to control mechanisms imposed by the court, because of her mental state.

As an alternative, an accused, who is, by reason of mental or physical condition, unable to participate effectively in trial may plead unfitness for trial.

2 key points in criminal law where the accused’s ability to understand is relevant

1. At the time of commission of the offence and

2. At the time of the trial

Some of those who are suffering from severe and chronic mental illness may need to make use of both in plea in bar of trial and the special defence

Onus of proof

Both mental disorder and diminished responsibility pleas place the onus of proof on the accused though the standard of proof is on the “balance of probabilities”

inter alia

among other things

What section of the act covers ‘defence of mental disorder’

s 51A of the Criminal Procedure (Scotland) Act 1995

s 51A of the Criminal Procedure (Scotland) Act 1995

(1) A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. 

 

(2) But a person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct. 

 

(3) The defence set out in subsection (1) is a special defence. 

 

(4) The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities. 

(5) In this section, “conduct” includes acts and omissions. 

Diminished Responsibility

Diminished responsibility arises when the accused’s ability to determine or control their conduct at the time of the offence was substantially impaired due to abnormality of mind. This defences mitigates murder to culpable homicide.

In some senses this is not a defence at all, since it neither excuses nor justifies, but it is regarded as a lesser form of mental disorder.

Burden of proof for diminished responsibility

The burden is on the accused, who must prove diminished responsibility on the balance of probabilities.

How was diminished responsibility originally defined in Scots Law?

1. Aberration or weakness of mind

2. A state of mind bordering on, but not amounting to, insanity

3. A mind so affected that responsibility is reduced from full to partial.

How does the test for diminished responsibility under section 51B differ from the common law approach?

• No requirement for a mental disease

• Focuses on impairment of ability to determine or control actions rather than a comparison with a ‘normal person’

• Medical evidence is important but not necessary.

What examples of mental abnormality did the five-judge bench in Galbarith provide?

The accused perceived events differently from a normal person

Their ability to form rational judgements was impaired

What section of the act covers ‘diminished responsibility’

s 51B of the Criminal Procedure (Scotland) Act 1995

s 51B of the Criminal Procedure (Scotland) Act 1995

(1): A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind. 

 

(2) For the avoidance of doubt, the reference in subsection (1) to abnormality of mind includes mental disorder. 

 

(3) The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself— 

(a) constitute abnormality of mind for the purposes of subsection (1), or 

(b) prevent such abnormality from being established for those purposes. 

 

(4) It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied. 

(5) In this section, “conduct” includes acts and omissions. 

Limitation of diminished responsibility

Diminished responsibility cannot support:

• Self-induced intoxication

• Psychopathic personality disorder

Is diminished responsibility a partial defence or mitigating plea?

• Traditionally seen as a partial defence, reducing murder to culpable homicide

• Section 51B specifically references murder, supporting the mitigating plea theory.