Criminal responsibility, abnormal mental states, and the functions of expert medico

378 Pages·2016·25.36 MB·English

Criminal Responsibility, Abnormal
Mental States, and the Functions of
Expert Medico-Psychological
Evidence
By
Hazel James (MSc, LLM, BA)
Thesis submitted to the University of Nottingham for
the degree of Doctor of Philosophy, February 2005
TABLE OF CONTENTS
Acknowledgements
Abstract
General Introduction page 1
Chapter One: Criminal Responsibility:
Legal Approaches to the Mind page 8
Introduction page 8
The Philosophical Underpinnings of Legal Responsibility page 9
Introduction page 9
The Legal View of the Mind page 10
The Rule of Law page 13
The Dialectical Challenge to Kantian Individualism page 15
Mens Rea page 18
Introduction page 18
Jury page 20
The Reform Debate page 21
The Defences of Insanity, Diminished Responsibility page 23
and Provocation: Morality and Determinism
Introduction page 23
Insanity page 24
General page 24
Mental States and Responsibility page 25
Procedural Issues - Status page 26
or Excuse Defence?
Disposal Options page 27
Reform Debates on Status or Excuse page 27
Mandatory Insanity Disposal page 30
in Homicide Cases
Diminished Responsibility page 31
General page 31
Responsibility page 31
Procedural Issues page 32
The Reform Debate page 33
Provocation page 37
General page 37
The Impact of Smith page 37
Responsibility page 38
Procedures page 39
Pleading Diminished Responsibility page 40
and Provocation Together
General page 40
The Reform Debate page 42
Detention: Policy Issues page 44
Introduction page 44
Government Initiatives on Dangerousness page 45
A Dialectical View Revisited page 48
Conclusion page 50
Chapter Two: Medico-Psychological Approaches to the Mind page 52
Introduction page 52
The Philosophical Parameters of the Debate page 52
The Neuroscience of Consciousness page 55
Foundations page 55
The MindIBody Link page 56
N aturelNurture page 58
Dimensions to Cognition page 60
Sense of Self page 60
Emotion page 63
The Unconscious page 67
Acts of Will page 69
Responsibili ty page 73
Medico-Psycholo gical Experts page 76
Conclusion page 78
Chapter Three: The Interaction of Law and Science: page 80
Common Law Rulings
Introduction page 80
Judicial Interpretation of the Insanity Defence page 81
Introduction page 81
Discussion page 84
Judicial Interpretation of the Diminished page 85
Responsibility Defence
Introduction page 85
Discussion page 88
Substantial Impairment: Judges, Juries and Experts page 91
Introduction page 91
No Trial page 93
Trial: Juries page 94
Discussion page 95
Legal Conundrums page 97
Psychopathy page 97
Responsibility page 97
The Scottish Position page 100
Detention page 101
Intoxication page 103
Responsibility: Biological Explanations page 105
The State of Scientific Evidence page 105
Genetics and Individualizing Responsibility page 107
Evidence and Courts page 108
The Jury page 111
Genetics and Sentencing page 112
Discussion page 113
Conclusion page 115
Chapter Four: The Interaction of Law and Science: Courts, page 117
Experts and Evidence
Introduction page 117
The Efficacy of Using Science in Law page 117
The Rise of the Forensic Medico-Psychological Expert page 120
Introduction page 120
Experts and Responsibility page 121
Experts: Detention, Punishment and Treatment page 124
The Forensic Medico-Psychological Expert's Role page 125
Introduction page 125
Differences Between the Clinical and Assessments page 125
The Admission of Expert Evidence page 129
Introduction page 129
Evidence: Fact or Opinion page 130
The Adversarial Process page 131
Professional Identity page 131
Evidence page 132
The Judiciary page 134
Introduction page 134
The Expert's Duties and Responsibilities page 135
Expert Credibility page 136
Evidence Credibility page 137
Scientific Method page 137
Established Scientific Community page 138
The Judge and Jury page 140
Admission of Evidence and the Jury page 140
Judges' Directions and the Jury page 141
The Jury and Expert Evidence page 142
Jury Decision-Making page 144
Discussion page 147
Sentencing page 149
Conclusion page 152
Chapter Five: Methods page 154
Introduction page 155
Documentary Research page 154
Introduction page 154
Official Statistics page 155
Crown Prosecution Service Case Files page 157
Researching Practitioners page 159
Introduction page 159
Court Cases page 160
Interviews page 161
The Interview Sample and Access page 161
Interview Method page 163
Vignette page 164
Data Analysis page 169
Conclusion page 172
Chapter Six: Legal Interviews page 174
Introduction page 174
The Law page 174
Mens Rea - Guilty Intent page 174
Reform Suggestions page 176
The Defences of Insanity, Diminished page 177
Responsibility and Provocation
Insanity page 177
Diminished Responsibility page 17 7
Provocation and Diminished Responsibility page 180
Psychopathy and Intoxication page 180
Refonn Suggestions page 181
Procedural Considerations in a Case page 184
The Police Station page 184
Vignette page 188
The Charge page 190
Preparing the Case for Trial page 191
Initial Defence and page 191
Prosecution Considerations
Choosing a Medico-Psychological Expert page 193
Instructing the Expert page 195
The Report page 198
Legal Perceptions of Medico-Psychological page 200
Comprehension of the Law
Legal Comprehension of page 201
Medico-Psychology
Expert Reports and Case Decisions page 202
Defence Perspective page 202
Prosecution Perspective page 204
Trial or No Trial: The Issue of page 205
Public Interest
Court page 207
Judges page 207
Judicial Attitudes page 207
Experts in Court page 208
Expert Qualifications page 209
Admission of Expert Evidence page 209
Judicial Directions and Expert Evidence page 210
Juries page 210
Understanding Expert Evidence page 211
Understanding the Legal Rules page 213
Perceptions of Non-Legal Influences page 214
on Jury Decisions
The Future of Jury Trials page 216
Sentencing: Detention - Hospital v. Prison page 217
Sentencing page 217
Release page 220
Refonn Suggestions page 220
Discussion page 222
Conclusion page 223
Chapter Seven: Medico-Psychological Interviews page 225
Introduction page 225
The Law page 225
Introduction page 225
Mens Rea - Guilty Intent page 226
The Defences page 227
Criminal Responsibility page 229
Psychopathy page 230
Intoxication page 233
Reform Suggestions page 234
The Forensic Expert page 235
Expert Reputation and Titles page 235
Pre-Trial Responsibilities page 236
Initial Instructions page 236
The Assessment page 240
Procedural Issues page 240
Diagnostic Issues page 242
Assessments of Malcolm page 244
The Report page 246
CPS Case File Reports page 249
Case One page 249
Case Two page 250
The Defence Report page 250
The Prosecution Report page 252
Reform Suggestions page 254
Expert Reports and Case Decisions page 254
Court page 256
Judges page 256
Judicial Attitudes and Responsibilities page 256
Expert Qualifications page 257
Admission of Expert Evidence page 258
Juries page 261
Expert Evidence, Barristers page 263
and the Adversarial Process
Reform Suggestions: Education and Communication page 265
Introduction page 265
Training Experts page 266
Educating Legal Personnel page 267
The Jury page 268
Sentencing: Detention - Hospital v. Prison page 269
Introduction page 269
Detention page 270
Psychopaths page 271
Release page 272
Discussion page 274
Conclusion page 275
Chapter Eight: The Interaction of Law page 277
and Medico-Psychology: Conclusions
Introduction page 277
The Interaction of Law and Medico-Psychology page 279
General page 279
Judges as Legislative Interpreters page 281
General page 281
Psychopathy and Intoxication page 284
Judges as Trial Arbiters page 285
Inter-Professional Relationships: How the page 286
Incongruities are Managed
Introduction page 286
Inter-Professional Understanding page 287
Inter-Professional Relationships and Roles page 290
The Legal Process page 293
Introduction page 293
Pre-Court Issues page 294
The Police Station page 294
Assessment page 294
Reports page 298
Trial or Accept the Plea page 301
Court Issues page 302
Judges page 302
Barristers page 303
The Jury page 304
Jury Comprehension page 305
Jury Role page 307
Inter-Professional Relationships, Local Values
And the Routine Nature of cases page 308
Sentencing page 311
Reform page 314
Introduction page 314
Interaction Between law and Medico-Psychology page 314
Theory v Practitioners page 316
Dialectics Revisited page 319
Conclusion page 321
Bibliography page 324
Appendix 1: Vignette
Appendix 2: Interview Letter
Acknowledgements
I wish to thank my supervisors: Professor Robert Dingwall, Dr Peter Bartlett,
and Dr Ellen Townsend for their support and input during the three years of the
PhD process.
I wish to thank Geoffrey Kay for his diligence in proof reading the thesis,
because through addressing the shortfalls in my secondary grammar education,
he has made the ideas in my head more accurately mirrored on the page.
I want to thank all those that participated in this research for their time, co
operation and candour.
Finally, I want to say a heartfelt thank you to my two children, Mags and
Etienne, and friends both old and new, who have supported me and accepted
my lack of availability through various stages of doing the thesis. In particular,
words cannot adequately express my gratitude for all the encouragement and
backing I received, when in the final phase I withdrew from the usual round of
social activities in order to finish the thesis. With special thanks to Doreen and
Kathy.
Abstract
This thesis exammes the interaction of law and medico-psychology in
homicide cases, where the defences of insanity and diminished responsibility in
particular are raised. If the defendant's mental state is subject to scrutiny
through the defences, then expert medico-psychological evidence is required,
yet law and medico-psychology have very different understandings on the
mind and very different roles with regard to assessing individuals. Expert
medico-psychological evidence can be submitted in the consideration of
criminal responsibility, when sentencing is concerned with whether prison or
hospital is most appropriate, and for release decisions involving judgments
about the defendant's potential risk and dangerousness.
The examination of the interaction between law and medico-psychology
incorporated three dimensions. First, an exposition of the respective theoretical
positions of the two disciplines on the mind, detailing the pertinent legislative
and common law rules. The second analysed the judicial interpretations of the
medico-psychological terms and concepts contained in the substantive law, and
in addition, the controls developed through judicial reasoning on the procedural
role of the expert and the admission of expert testimony. Finally, the
practitioners' perspective is explicated, which was obtained by conducting
interviews with lawyers and medico-psychological expert witnesses.
There are two facets to the research conclusions, which simplistically stated
are: first, in terms of the interaction between law and medico-psychology, the
law uses medico-psychological concepts and evidence in a symbolic manner to
facilitate legal objectives. Secondly, the examination of the nature of the
interaction through the three dimensions exposed the fundamental difference
between the theoretical legal debates and the practitioners' perspective.
Although the former normally informs legislative and reform discussions, it
seems from this research that consideration needs to be given to all the
dimensions in future reform debates.
GENERAL INTRODUCTION
The thesis examines the determination of criminal responsibility when there are
questions as to whether the defendant's mental state at the time of the offence
can meet the objective standard required by law. Whilst the nature of criminal
culpability varies between offences, it usually requires that the defendant have
the requisite guilty mind, meaning that they intended the act, which is referred
1
to as mens rea. The law recognises that individuals with disordered mental
states are not always wholly criminally responsible and the defences of insanity
and diminished responsibility allow a subjective evaluation of a defendant's
mental state. As diminished responsibility can only be invoked in respect of
homicide, the remit of the thesis is restricted to murder cases. Both defences
require expert evidence regarding the state of the defendant's mind at the time
of the offence. For ease of reference throughout the thesis the term medico
psychology is used when referring to the experts that may come from
psychiatry and/or psychology. However, this does not overlook the fact that
there are distinctions between the two disciplines, outlined in chapter two, and
theoretical divisions within each profession. For example, the Royal College of
Psychiatry and the British Psychological Society, which constitute the main
organisational bodies for each respective profession, contain numerous sub
2
divisions to represent the distinct theoretical positions.
Significantly, whilst the focus within cases is the defendant's mental state, the
disciplines of law and medico-psychology have different normative
frameworks underpinning their conceptions of the mind. However, as this is an
established area of law the initial research interest was premised on the
assumption that there was an interaction between the law and medico
psychology in this context, and therefore the research would ascertain whether
or not developments in the neuroscientific understanding of the mind had had
an impact on the nature of the interaction between the two disciplines. The
ensuing exploration of the evidence of the interaction in case law and through
interviewing practitioners showed that the character of the interface was far
more complex than had originally been anticipated, challenging the envisaged
I See chapter one
2 The website for each organization is ordered around the different divisions.
1