Prins: Epilepsy and Criminal Law: a supplementary comment 255
Epilepsy and Criminal Law: a supplementary comment HERSCHEL PRINS, MPHIL Professor, Midlands Centre for Criminology and Criminal Justice, University of Loughborough, Leicestershire, LEtt 3TU ABSTRACT In the context of a previous paper by Paul and Lange in this journal brief reference is made to recent significant changes in the law concerning insanity and unfitness to plead (being under disability in relation to the trial).
PROVISIONS OF THE NEW ACT
In a recent contribution to this Journal (Med. Sci. Law, 32, 160-66), Paul and Lange provide a useful review of the vexed question of the relationship between epilepsy and the criminal law and, in particular, the problem of distinguishing between sane and insane automatisms, As they rightly indicate a successful plea of insanity on the grounds of insane automatism would result in an automatic hospital disposal, sometimes in conditions of maximum security in one of the three special hospitals, Ashworth (formerly Park Lane and Moss Side), Rampton or Broadmoor (Mackay, 1991). However, recent legislation (which may perhaps have emerged too late for inclusion by Paul and Lange in their paper) has remedied some of the defects in the previous legislation of which they rightly complain. The new legislation, the Criminal Procedure (Insanity and Unfitness to Plead) Act, 1991 (HMSO, 1991), which is based in part on the recommendations of the Butler Committee (HO and DHSS, 1975) received the Royal Assent on 27 June 1991 and came into force on 1 January 1992. Detailed advice on the Act and its implementation is provided in a recent Home Office circular (HO, 1991). The most important provisions in so far as they affect the burden of Paul and Lange's contentions about disposal are contained in Section 3 of the Act and may be summarized as follows:
(1) Where a person is found not guilty by reason of insanity or found to be under disability (unfit to plead) a Crown or Appeal Court will no longer be bound to order detention in hospital under a restriction order within the terms of the Mental Health Act, 1983 (sections 37/41) except in murder cases. (2) The following disposals are now to be available: (i) an order for admission to hospital (an 'admission order') with the option of an added restriction order; (ii) a Guardianship Order under Section 37 of the Mental Health Act; (iii) an order for supervision and treatment. In effect this will be much like a probation order with a requirement for medical treatment under Section 3 of the Powers of the Criminal Courts Act, 1973 - to be amended in due course by Sections 8 and 9 and Schedule 1 of the Criminal Justice Act, 1991. Supervision will be effected by either the probation or social services and the order will be for two years. The accused will also be required to be under the care of a registered medical practitioner. However, in the event of non-compliance by the accused there are no penal sanctions for a return to court or revocation of the order. (iv) An order for absolute discharge. OTHER PROVISIONS
Other provisions of interest include the requirement for medical evidence to be given by two registered medical practitioners, at least one of whom must be approved under Section 12 of the Mental Health Act 1983. It may come as a surprise to some readers of this Journal
256 Mad. Sci. Law (1992) Vol. 32, No.3
that the old legislation did not carry such a requirement for the court to consider psychiatric or other medical evidence. No doubt this was a 'throw-back' to the days when laymen and women were called in cases of an insanity or similar defence to give evidence as to the accused person's state of mind. The new legislation also provides - in cases of unfitness to plead - for a speedy jury trial of the facts and a requirement for a finding based upon them. CONCLUDING NOTE Although the new provisions do not resolve the controversy concerning the constitution of sane and insane automatisms they do now make for more flexible and humane disposals. (For a use-
ful clinical summary see Kellam, 1992 and Mackay, 1991 at pages 27-30).
REFERENCES HMSO (1991) Criminal Procedure (Insanity and Unfitness to Plead) Act, 1991, London. Home Office (1991) Circular number 93/1991 - reference CRI 91/2/257/2. 20.11.91. London. Home Office and Department of Health (1975) Report ofthe Committee on Mentally Abnormal Offenders, (Butler Committee). Cmnd 6244. HMSO, London. Kellam A. M. P. (1992) The Criminal Procedure (Insanity and Unfitness to Plead) Act, 1991. Psych. Bull. 16, 201-2 Mackay R. D. (1991) The Operation of the Criminal Procedure (Insanity) Act, 1964: An Empirical study of Unfitness to Plead and the Insanity Defence. Leicester Polytechnic Law School Monographs, Leicester.
Epilepsy and Criminal Law: a supplementary comment HERSCHEL PRINS, MPHIL Professor, Midlands Centre for Criminology and Criminal Justice, University of Loughborough, Leicestershire, LEtt 3TU ABSTRACT In the context of a previous paper by Paul and Lange in this journal brief reference is made to recent significant changes in the law concerning insanity and unfitness to plead (being under disability in relation to the trial).
PROVISIONS OF THE NEW ACT
In a recent contribution to this Journal (Med. Sci. Law, 32, 160-66), Paul and Lange provide a useful review of the vexed question of the relationship between epilepsy and the criminal law and, in particular, the problem of distinguishing between sane and insane automatisms, As they rightly indicate a successful plea of insanity on the grounds of insane automatism would result in an automatic hospital disposal, sometimes in conditions of maximum security in one of the three special hospitals, Ashworth (formerly Park Lane and Moss Side), Rampton or Broadmoor (Mackay, 1991). However, recent legislation (which may perhaps have emerged too late for inclusion by Paul and Lange in their paper) has remedied some of the defects in the previous legislation of which they rightly complain. The new legislation, the Criminal Procedure (Insanity and Unfitness to Plead) Act, 1991 (HMSO, 1991), which is based in part on the recommendations of the Butler Committee (HO and DHSS, 1975) received the Royal Assent on 27 June 1991 and came into force on 1 January 1992. Detailed advice on the Act and its implementation is provided in a recent Home Office circular (HO, 1991). The most important provisions in so far as they affect the burden of Paul and Lange's contentions about disposal are contained in Section 3 of the Act and may be summarized as follows:
(1) Where a person is found not guilty by reason of insanity or found to be under disability (unfit to plead) a Crown or Appeal Court will no longer be bound to order detention in hospital under a restriction order within the terms of the Mental Health Act, 1983 (sections 37/41) except in murder cases. (2) The following disposals are now to be available: (i) an order for admission to hospital (an 'admission order') with the option of an added restriction order; (ii) a Guardianship Order under Section 37 of the Mental Health Act; (iii) an order for supervision and treatment. In effect this will be much like a probation order with a requirement for medical treatment under Section 3 of the Powers of the Criminal Courts Act, 1973 - to be amended in due course by Sections 8 and 9 and Schedule 1 of the Criminal Justice Act, 1991. Supervision will be effected by either the probation or social services and the order will be for two years. The accused will also be required to be under the care of a registered medical practitioner. However, in the event of non-compliance by the accused there are no penal sanctions for a return to court or revocation of the order. (iv) An order for absolute discharge. OTHER PROVISIONS
Other provisions of interest include the requirement for medical evidence to be given by two registered medical practitioners, at least one of whom must be approved under Section 12 of the Mental Health Act 1983. It may come as a surprise to some readers of this Journal
256 Mad. Sci. Law (1992) Vol. 32, No.3
that the old legislation did not carry such a requirement for the court to consider psychiatric or other medical evidence. No doubt this was a 'throw-back' to the days when laymen and women were called in cases of an insanity or similar defence to give evidence as to the accused person's state of mind. The new legislation also provides - in cases of unfitness to plead - for a speedy jury trial of the facts and a requirement for a finding based upon them. CONCLUDING NOTE Although the new provisions do not resolve the controversy concerning the constitution of sane and insane automatisms they do now make for more flexible and humane disposals. (For a use-
ful clinical summary see Kellam, 1992 and Mackay, 1991 at pages 27-30).
REFERENCES HMSO (1991) Criminal Procedure (Insanity and Unfitness to Plead) Act, 1991, London. Home Office (1991) Circular number 93/1991 - reference CRI 91/2/257/2. 20.11.91. London. Home Office and Department of Health (1975) Report ofthe Committee on Mentally Abnormal Offenders, (Butler Committee). Cmnd 6244. HMSO, London. Kellam A. M. P. (1992) The Criminal Procedure (Insanity and Unfitness to Plead) Act, 1991. Psych. Bull. 16, 201-2 Mackay R. D. (1991) The Operation of the Criminal Procedure (Insanity) Act, 1964: An Empirical study of Unfitness to Plead and the Insanity Defence. Leicester Polytechnic Law School Monographs, Leicester.
