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Manifest MadnessMental Incapacity in the Criminal Law$

Arlie Loughnan

Print publication date: 2012

Print ISBN-13: 9780199698592

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199698592.001.0001

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Knowing and Proving Exculpatory Mental Incapacity

Knowing and Proving Exculpatory Mental Incapacity

(p.136) 6 Knowing and Proving Exculpatory Mental Incapacity
Manifest Madness

Arlie Loughnan

Oxford University Press

Abstract and Keywords

This chapter turns from the substantive law of insanity and automatism to the rules and practices of evidence and proof. It analyses the way in which claims to exculpatory mental incapacity are governed. The rules of evidence and procedure relating to automatism are distinguished from those relating to insanity, in a way that usefully throws each into relief. There are two main points made in this chapter. The first of these is that more than one type of knowledge informs the evidentiary practices attending exculpatory incapacity. Both expert or specialized knowledge of ‘madness’ and non-expert or lay knowledge are relevant for understanding how exculpatory incapacity claims are adjudicated in criminal law. The second main point is that the rules of evidence and proof applying to insanity and automatism reflect the different eras in which they formalized from informal practices. While the rules related to insanity crystallized in the era of the ‘reconstructive’ criminal trial, the appearance of a discrete automatism doctrine in the second half of the twentieth century coincides with a version of the adversarial criminal trial concerned with due process and the effective processing of criminal cases.

Keywords:   rules of evidence and proof, exculpatory mental incapacity, evidentiary practice, insanity, automatism

This chapter provides the epistemological analogue to the analysis of the substantive law contained in the previous chapter. As suggested in Chapter 5, a loose, broad, and partially moralized notion of incapacity as a foundation for exculpation via insanity gradually ossified into a narrower notion of disability, a development which fostered a more circumscribed approach to insanity. This development eventually produced a discrete automatism doctrine, an exculpatory doctrine that continues to be grounded in a broad moralized notion of incapacity. As foreshadowed in Chapter 5, the process by which insanity came to be the subject of expert medical knowledge—a change that took place as much beyond as within criminal law—was crucial to these developments, which also impacted at the level of evidence and proof. This chapter examines the evidentiary and procedural rules that govern the way in which claims to exculpatory mental incapacity are made in court. While the focus is specifically on exculpatory mental incapacity—the part of the terrain of mental incapacity now traversed by the doctrines of automatism and insanity—this chapter may be read alongside my ‘manifest madness’ analysis, which pertains to the terrain of mental incapacity as a whole.1

This chapter presents two main arguments. The first concerns types of knowledge of exculpatory mental incapacity. Here, I aim to shift away from the overly general, binary story told about the rise of one type of knowledge (expert or specialized medical knowledge), at the expense of another, (non‐specialized) knowledge. Examining the history of informal insanity reveals the role played by ordinary people, and what may be called common knowledge of ‘madness’, in animating legal evaluations of exculpatory ‘madness’. Coinciding with the formalization of insanity into its modern form, in the M'Naghten Rules, evidence from medical experts came to be significant in trials involving claims to exculpation on the basis of mental incapacity. However, as I discuss below, this expert knowledge about ‘madness’ (now predominately psychiatric and psychological knowledge) did not come to cover the field of knowledge practices in criminal law. This type of knowledge continues to share the field with lay knowledge of mental incapacity, which appeared at the same time as expert knowledge was carved out from common (p.137) knowledge.2 In this chapter, I suggest that recognizing the different dimensions of expert knowledge of ‘madness’—the prudential as well as ontological—helps to account for the ways in which space remains for lay knowledge of mental incapacity in legal practices.

The second of the two main arguments advanced in this chapter concerns the rules of evidence and procedure that structure claims of exculpatory mental incapacity. The rules of evidence and procedure relating to automatism can be contra-distinguished from those relating to insanity, usefully throwing each into relief. The bulk of the rules related to insanity crystallized from practices in the era of the ‘reconstructive’ criminal trial and this accounts in part for their distinctiveness. These rules governing insanity are oriented in such a way as to make the court a ‘witness to the truth’.3 They reflect what are assumed to be common interests in identifying an individual as ‘mad’ and subjecting him or her to a particular disposal. By contrast, the appearance of a discrete automatism doctrine in the second half of the twentieth century coincides with a version of the adversarial criminal trial concerned with due process and the effective management of criminal cases, and, as a result, the rules of evidence and procedure governing automatism reflect this orientation of criminal process.

The Naturalization of ‘Madness’ and the Role of Common Knowledge of ‘Madness’

The early modern era was marked by a broad movement from what Joel Eigen calls ‘religio‐astrologic conceptions of madness’ to ‘scientific‐organic perspectives’.4 At the beginning of this era, the Christian worldview dominated and ‘madness’ was viewed as ‘the wages of vice or sin’.5 As Roy Porter argues, the decline of the religious view of ‘madness’ via the ‘massive naturalization of the understanding of insanity’ paved the way for ‘emergent secular and social mappings of madness’, according to which insanity could be viewed ‘naturalistically, historically and socially’.6 This change happened gradually, with elements of the earlier religious (p.138) view still detectable in law and culture beyond the end of the early modern era.7 Within this period of significant change and wide diversity in social and cultural attitudes to ‘madness’, and in Porter's words, there was a ‘genuinely widespread’ belief that ‘the essence of madness was to be visible, and known by its appearance’.8 In the legal context, this belief formed a discrete but significant kernel of continuity over time; as I discuss in Chapter 3, this feature of ‘madness’ continues to be significant at the point of intersection with crime, colouring the way in which ‘madness’ is given meaning in criminal law practices.9

Alongside changes in social attitudes to ‘madness’, notions of evidence and proof for legal purposes were also changing over the early modern era. The decline of ‘the ordeal’ and the rise of jury trials in the medieval era corresponded with changing epistemological practices. ‘The ordeal’ had been accompanied by a complex evidentiary apparatus, including practices of proof such as peine forte et dure.10 In its place, a practice of trial by jury developed, which exhibited an epistemological and practical reliance on the situated knowledge of the jurors. The role of the judge in this context was ‘quasi‐prosecutorial’, involving, for instance, examination of what jurors knew.11 This was the era of the ‘self‐informing’ jury: with jurors initially drawn from the accused's local community, they were expected to bring knowledge of both the facts and the accused to the trial.12 For the purposes of adjudication, relevant considerations included the character, reputation, and standing of the accused in his or her community. Under these conditions, expertise was introduced into legal processes via the use of so‐called ‘special juries’ (such as juries of matrons, empanelled to determine if a woman was pregnant), which were advisors to the decision‐makers or, sometimes, the decision‐makers themselves.13 As Antony Duff and colleagues argue, the trial process at this point was an inquiry, and the verdict reached expressed ‘a complex social and moral judgment of both the incident and the defendant himself rather than a weighing of the evidence’.14

(p.139) What is typically called the ‘altercation’ criminal trial gradually emerged out of the trial process as inquiry. In epistemological terms, the ‘altercation’ criminal trial was something of a hybrid. As Barbara Shapiro argues, both criminal and civil trials in the early modern era incorporated older ideas as well as emerging professional epistemological assumptions and patterns of thought relating to proof.15 The criminal trial centred on the idea that the direct confrontation of the accused with his or her charge was the best means of discovering the truth of the allegation.16 As the presence of witnesses in court became more commonplace over the sixteenth century, the role of jurors was increasingly restricted to evaluating the evidence presented to them, and something of an inchoate distinction between witnesses and jurors developed. Jurors might still have known personally the facts at issue or acquired knowledge outside the court, but their role was more akin to that of ‘judges of the fact’, to use the contemporary expression.17 At this time, a distinction between ‘fact’ and ‘law’ developed, with ‘fact’ denoting particular events, deeds, or actions that were perceived by the senses.18 Jurors—those of the ‘middling sort’ of society—were required to reach a ‘moral certainty’ in relation to their verdicts, a degree of conviction that formed the basis for the development of a standard of proof.19 Over the sixteenth and seventeenth centuries, the idea that facts of human action could be established with a high degree of certitude by witness testimony, and that ordinary, independent persons have sufficient ability to evaluate that testimony for truth value, took on a broader cultural acceptability.20 (p.140) As a result of these developments, even after the jury ceased to be ‘self‐informing’, the epistemological authority of ordinary people in the criminal trial context remained significant.

The role of the testimony given by ordinary people about ‘madness’ should be understood against this background. With ‘madness’ ‘entrenched in a common cultural consciousness’, to use Porter's words,21 it was the subject of what I call common knowledge.22 By this I mean that, while ‘madness’ was protean, it was known and understood by ordinary people in the absence of specialist knowledge or particular insights. As Porter puts it, ‘the mad and the sad were extremely familiar figures in the early modern physical and mental landscapes’, and ‘talking about madness—even talking authoritatively about it—was not traditionally the preserve of any profession’.23 For these purposes, common knowledge of ‘madness’ was part of a broader knowledge landscape, encompassing knowledge of a defendant's character, family, and social status, each of which might have been an ingredient in any particular decision about whether to bring him or her to trial and then in the trial verdict. Flowing from the way in which crime was identified, and initially investigated, ordinary people played a significant role in criminal process.24 Family members, neighbours, apprentices, and publicans, gave evidence identifying and evaluating conduct as ‘mad’. As Porter argues, in insanity cases at this time, ‘what counted was the community perception—witnesses, friends, family, magistrate and jury’.25 As the distinction between witnesses and jurors hardened, the role of ordinary people as witnesses to and evaluators of ‘madness’ came to be distinct from and separate to the role of jurors in the trial process, but both sets of individuals were regarded as competent to detect and evaluate ‘mad’ conditions.

In the absence of sophisticated legal tests for exculpatory insanity, common knowledge formed an animating framework for decisions about mental incapacity. In this era, a variety of different formulations of exculpatory insanity coexisted, of which the ‘wild beast’ test is the best known. Each of these was as much descriptive as prescriptive of insanity. As I suggested in the previous chapter, the combination of a capacious informal insanity law and informal criminal processes in the early modern era resulted in a wide scope for exculpation on the basis of incapacity. The brief references to ‘madness’ in the Old Bailey Proceedings were designed to tap into common knowledge of ‘madness’. In the record of Philip Parker's trial for murder (p.141) in 1708, evidence was adduced that, at the time of the offence, ‘the prisoner talk’d very extravagantly, and had all the symptoms of lunacy upon him’. The jury concluded that the killing was ‘purely the effect of distraction’ and Parker was acquitted.26 Similarly, when Alice Hall was tried for the murder of two women in 1709, evidence that she had been ‘for a considerable time Distracted, and fancied she was Damn’d, that she was a Spirit, and not a Woman; and sometimes was so very Outrageous that she was chain’d in her Bed’ seems to have been behind the jury's decision to acquit her on the basis that she was ‘under great disorder of Mind when she committed the Fact’.27 Of course, not all claims to insanity were successful. In one of the famous insanity trials of the period, held in 1760, Earl Ferrers testified that he suffered from occasional insanity and is recorded as saying that, at the time he killed his steward, ‘I did not know what I was about’, but to no avail: Ferrers was convicted and executed.28

‘Madness’ in this era was ‘read off’ an individual's conduct. In Porter's words, ‘there were indeed inner as well as outer truths, but outward signs encoded inner realities’.29 This aspect of the way in which ‘madness’ was made known was linked to the interdependence of the conceptual and the evidentiary (an interdependence which I suggest remains at the point of intersection of ‘madness’ and crime30). In relation to insanity for criminal law purposes, conduct had a thick significance—a defendant's conduct in gaol, his or her demeanour in court and history of behaviour, as well as the acts comprising the offence, were enlisted in the process of assessing whether an individual would be able to avoid punishment. Thus, as I suggest in Chapter 5 in relation to Arnold's Case, Judge Tracy's direction that it must be ‘very plain and clear’ when a man is excused from punishment on the basis of his lack of ‘understanding and memory’ is as much about the form as the content of ‘madness’. ‘Madness’ was both known and tangible. This idea about the way ‘madness’ was known is usefully summed up by a lay witness in another OBPs trial, that of Thomas Reed, who stated that ‘he look’d upon him [Reed] as a craz’d man’.31

The record of the trial of Thomas Nash for the murder of his wife in 1727, in which Nash made a case for incapacity based on an external cause, usefully illustrates the ways in which ‘madness’ was ‘read off’ an individual's conduct. The trial record reads in part:

Eleanor Susmith depos'd. That she had known him for some Years to be a very Crazy Person, not taking his natural Rest, but magotting and rambling like a Mad‐man.


Mr. Page further depos'd. That at Times he was besides himself, especially at Spring and Fall, when he was seldom in a Capacity to follow Business.

Mr. Watson further depos'd. That he had known him 13 Years, and that he would sometimes go to his Neighbours Houses and demand such Things as he had occasion for, but where he met with Opposition he came no more, and only tyrannized over them that feared him;…he had formerly been a Soldier for fourteen Years, during which Time he had received several dangerous Wounds in the Head, and has still several Marks to shew, which makes it probable those Wound's might weaken his Intellectuals.32

The evidence that the head wounds Nash had received in war made it ‘probable that those Wound's might weaken his Intellectuals’, and other evidence about his ‘magotting and rambling’ behaviour seems to have convinced the jury, who returned a verdict that the accused was non compos mentis. This verdict indicates that, at this time, the scope of the informal insanity law was wide enough to encompass both external and internal causes of incapacity.

The idea that ‘madness’ could be ‘read off’ an individual's conduct provided an element of continuity as the fact‐finding contours of insanity trials underwent significant change over the eighteenth century. These changes were preceded by a period in which, up to 1700, criminal trial process was changing such that ‘truth was becoming internal to the trial procedure’.33 Ushered in by the special rules that applied to treason trials following the Treason Trials Act 1696, criminal trial process developed protections for the defendant which paved the way for the development of the adversarial trial. Changes from 1700 were associated with the rise of the adversarial trial process. The nascent regularization of prosecution and the gradual entry of lawyers (defence counsel began to participate in criminal trials from the 1730s, although they were limited to gathering and adducing evidence, and examining and cross‐examining witnesses, and could not address the jury34) combined to shift the focus from the defendant him or herself to those who spoke about or on behalf of him or her.35 These changes corresponded to changing ideas about proof: the reconfiguration of the criminal trial meant that it became a ‘contest between two cases’, based on the presentation of evidence, and the dynamic came to be one of testing the prosecution case.36 However, as ‘madness’ continued to be understood as generally known and tangible, there were significant (p.143) continuities over this time between what counted as proof of ‘madness’—both within and beyond the bounds of the courtroom. I return to this point below.

‘As a medical man, I have no hesitation in saying so’:37 Expert Knowledges of ‘Madness’

The backdrop to the appearance of an expert knowledge of ‘madness’ was the radical cultural and social transformation of the scientific revolution. In a complex set of developments that played out from the sixteenth century onwards, older ideas (of ‘humours’ and ‘vapours’, for instance) that had held sway gave way to newer ideas based on ‘micromechanism and microstructures of ailment and body’.38 What was called ‘the new philosophy’—what is now called science—opposed both classical and medieval traditions.39 The scientific revolution prepared the ground for the modern organization of knowledge. The Enlightenment of the eighteenth century marked the restructuring of knowledge, leading to its increasingly formal organization, moves that were prompted by a perceived need for knowledge to be ‘systematic, professional, useful and co‐operative’.40 This change produced the types of knowledge that would be closely associated with the political, social, and cultural changes grouped together under the umbrella of modernity.41 Expert medical knowledge (itself an omnibus term) occupied a special place in this respect, becoming bound up in the way in which both society and self, and individuals’ relations with each other, came to be conceptualized.42

The development of a specialist or elite knowledge about mental states grew out of these larger changes in the knowledge landscape, and altered the epistemological profile of ‘madness’ well beyond the bounds of criminal law and process. Although (p.144) the rise of an expert knowledge of ‘madness’ reached a critical point in the nineteenth century, when it came to have an effect on criminal law processes such as those relating to exculpatory mental incapacity, it can be traced back to the eighteenth century.43 As Nikolas Rose writes, from the last decades of the 1700s onwards, phrenology, criminal anthropology, and other ‘sciences of the soul’ appeared, reflecting a growing social demand for ‘vocabularies for the managing of human difference’.44 These emerging disciplines began to address broad questions about the interaction of mind and body in a way that would have a significant impact on criminal law principles and practices.45 As Nicola Lacey argues, the development of this type of knowledge formed the basis for the ‘factualisation’ of mens rea, an ingredient in the rise to dominance of a subjectivist concept of fault in criminal law.46

From the first decades of the nineteenth century, a growing number of individuals, including hospital physicians, surgeons, visiting and consulting physicians, gaol medical attendants, and asylum superintendants and their assistant medical officers, laid claim to a specialist knowledge of ‘madness’. ‘Alienists’, a loose and heterogeneous body of individuals with a variety of beliefs, practices, and varying claims to authority and credibility, formed part of this group. At this time, specialist knowledge about ‘madness’ was considerably contested and conflicted. A myriad of ideas about ‘madness’ (revealed in clinical concepts such as ‘moral insanity’, ‘lesion of the will’ and ‘monomania’) competed for space, with a range of individuals claiming authority over ‘lunacy’. The dynamic character of the field reflected the dynamism of the broader arena of expert medical knowledge, which was undergoing significant reorganization during this time.47 This was itself part of a profound reorganization of elite knowledges that took place over the nineteenth century. This development encompassed new objects of knowledge, and spawned new specializations and new intellectual cum social groups or ‘knowledge associations’.48 These new specializations and associations were marked by permeable (p.145) intellectual and social borders, and disagreement and debate meant that their particular configuration was in flux over the course of the century.49

The constitution of this specialist knowledge of ‘madness’ as expertise for criminal legal purposes is a distinct dimension of the rise of scientific and medical knowledge of ‘madness’. By the time the M'Naghten Rules were formulated in 1843, courtroom testimony given by those claiming expertise in ‘madness’ was becoming more common.50 While defendants’ neighbours and relatives continued to provide evidence of what Eigen calls ‘manifest distraction’, as they had in the seventeenth and eighteenth centuries,51 testimony from alienists and other experts was gradually becoming more important. ‘Mad doctors’ had given evidence in court before M'Naghten, but their involvement and profile increased in the second half of the nineteenth century. This development is sometimes interpreted as evidence of a ‘turf war’, and narrated as a strategy on the part of medical experts to enhance professional reputation,52 although, as Eigen and others have argued, the entry of alienists to the courtroom would not have been possible without ‘at least passive acquiescence of the bench’.53

Mindful that the greater preponderance of experts in London may have skewed the picture somewhat, the OBPs can be enlisted to bear out this claim about the rising profile of expert medical professionals in the criminal context. ‘Alienists’ and others make several appearances at the Old Bailey, and particular individuals, such as John and Thomas Monro, father and son physicians at Bethlehem Hospital, and Gilbert McMurdo, surgeon at Newgate gaol, achieved notoriety as medical witnesses. Evidence from the OBPs suggests that experts were asked to address a variety (p.146) of issues relating to claims for exculpation on the basis of insanity, including issues of causation, effect, and prognosis, as well as what would now be referred to as the ‘ultimate issue’—whether an individual's insanity plea should be granted (which I discuss below). In part reflecting the still emergent nature of elite knowledge of ‘madness’, the multiplicity of theories and beliefs that enjoyed some currency, and the still moralized as opposed to medicalized character of ‘madness’, medical witnesses were able to include various matters, such as domestic violence, poverty, and other stressors, in their clinical considerations.54 At the same time as this witness testimony was becoming more important, and as the terms of the M'Naghten Rules themselves suggest, terms and references from the medical lexicon were making a mark on the development of legal tests for criminal responsibility.55

The enhanced legal profile of expert evidence on insanity brought with it greater scrutiny of experts, and robust questioning about the bases on which they reached conclusions. The expanding role of lawyers in the criminal trial meant that the power lay with them and the emphasis was on examination and cross‐examination. My examination of the OBPs suggests that experts were frequently questioned on the basis of their beliefs, the relationship between insane conditions and the alleged offence and the causes of insanity, among other matters. This reflected both the increasing demand for certainty as well as the restrictions placed on defence counsel, who were not permitted to address the jury directly.56 The changing demands on experts help to account for the presence, in the trial records, of generalized statements about mad conditions, and some evidence of restriction on the scope of the testimony of experts who had not seen the prisoner (to general questions such as ‘What are the symptoms of insanity? In what way do you judge such a symptom to be one of insanity or the reverse?’57), which are present in the OBPs from this period.58 These types of questions featured in some of the trials (p.147) subsequent to the M'Naghten decision, suggesting the progressive way in which the boundaries of expert testimony outlined in the M'Naghten Rules were worked out.

Bearing in mind the way in which adversarial criminal procedures were developing during this time, from my study of the OBPs, one particular aspect of expert medical evidence on insanity stands out—its largely non‐partisan flavour. The OBPs trial records convey a palpable sense of the baseline acceptability or non‐contentious nature of this evidence underlying the specific issue of a particular individual and charge. This palpable baseline acceptability hints at the broader social caché enjoyed by medical knowledge in the nineteenth century. A number of trial records feature more than one expert medical witness and there appears to have been significant cross‐referencing among experts (for instance, ‘I agree with Dr Bucknill that loss in business, hereditary taint, and habitual drinking, and a blow to the head, would be likely to create insanity’59). This cross‐referencing stretched across the still porous boundary between expert and lay person, encompassing the latter's witness evidence about an individual's mad condition. On hearing testimony from lay witnesses like parents, siblings, the owners of licensed establishments, fellow soldiers, co‐workers and the like, medical witnesses testified about insanity in the family (‘madness is notoriously hereditary’60), antecedent injuries (‘there is a very distinct mark on the upper part of his head…that injury would affect the brain at the time very decidedly’61), and conduct at the time leading up to the offence (‘It is only confirmatory of the opinion I had formed, that he was not in a sound state’62). The totality of the evidence sustained conclusions such as ‘I have heard a great deal more about him to‐day than before—the general’ [sic] evidence is that his mind is deranged’.63 This cross‐referencing—among experts and between experts and non‐experts, between the time of the offence (and even before this) and the time of the trial—produced a complex blend of the particular and the general and offered a critical weight to expert evaluation of ‘madness’ in a particular instance.

While experts came to be called by both prosecution and defence, the idea that their evidence was partisan seemed not to have been a concern for Old Bailey judges, up to and including the Victorian era. Three sets of factors account for the non‐partisan flavour of the expert medical testimony relating to insanity. The first of these relates to the nature of expert medical knowledge itself and the role of ‘medical men’. As a species of scientific knowledge, medical knowledge had (and has) powerful rhetorical claims to truth, accuracy, and impartiality, the significance of which I discuss in (p.148) Chapter 3.64 Further, as professional boundaries around the practice of ‘alienists’ were still emergent, the connections between types of medical expert meant that all traded on the standing of experts more familiar with the criminal courtroom, such as surgeons. The non‐partisan flavour of expert testimony on insanity also reflects the heritage of the involvement of ‘medical men’ in coronial inquiries (which continue to be oriented in a way that marks them out from other legal practices65) and was in part a product of the way in which experts came to be involved in insanity cases—through treatment, or observation once the individual came to be in some form of institution.66 As Carole Jones notes, up to this point, the state was the main client of those individuals who made up the body of medical experts.67 It is possible that any whiff of bias this produced was countered by the fact that, where such expert witnesses gave evidence that an individual was insane, it worked to the advantage of the defendant.

The second set of factors relates to the scope of the insanity doctrine at this time: it was loose and broad such that medical experts testified to matters other than those relating to insanity as we would now view it, from the vantage point of the current era. Even after the formulation of insanity in the M'Naghten Rules, insanity remained capacious, incorporating claims that would later fall into the category of automatism. The OBPs indicate that expert medical witnesses gave evidence in relation to what would now be conceptualized as automatism claims.68 More generally, it appears that experts were enlisted to explain what might appear to be motiveless or unconscious conduct.69 The scope of insanity was significant because it meant that testimony was not restricted to clinical diagnoses, in a strict sense, enabling expert medical witnesses to gain legitimacy on the basis of broad, non‐technical judgments. Nonetheless, the practice of introducing expert evidence under a broad and loose insanity doctrine contributed to the change in the basis of the doctrine, which would gradually narrow its scope. As I suggest in Chapter 5, (p.149) and in part as a result of the rise of an expert medical knowledge of ‘madness’, insanity has come to be grounded in a circumscribed notion of disability (as opposed to a broader, looser notion of incapacity), while the now stand‐alone doctrine of automatism continues to be founded in a broad, moralized notion of incapacity.

The features of the particular mode of criminal trial into which medical experts and others were introduced furnishes the final set of factors that accounts for the non‐partisan flavour of expert medical evidence on ‘madness’. As Duff and colleagues argue, this was the era of the ‘reconstructive trial’, a distinctive stage in the development of the adversarial trial. This stage was marked out by a fuller exploration of issues of guilt, intention and evidence at trial than had previously been the practice. Duff and colleagues pinpoint the passage of the Prisoners’ Counsel Act 1836 as marking the beginning of this era.70 As these authors argue, in this mode, the trial is concerned with the ‘reconstruction of past events, in order to make the court witness to the truth of the events and so test the guilt of the accused person’.71 This mode of trial was premised on a number of reforms to criminal procedure that took place from the first decades of the century and significantly affected the structure of criminal trials.72 By the end of the century, and by its end, trials were significantly longer, and, reflecting police control of prosecution processes, featured an increased number of witnesses.73 As Duff and colleagues write, scientific and medical witnesses played a key part in this reconstructive trial process, and their increasingly common appearance in court for both prosecution and defence hardened the distinction between fact and opinion, a distinction which would come to form the basis of the formalized evidentiary rules relating to expert testimony.74 The non‐partisan flavour of expert medical testimony I have been discussing coincided with the crystallization of the rules of evidence and procedure governing the fact‐finding process in insanity cases at this juncture. This has meant that these rules have retained a feel of the reconstructive trial, and are oriented to making the court a witness to the truth in a way that helps to (p.150) account for their distinctiveness in the criminal law of the current era. I discuss these rules below.

‘I have seen a great many insane persons, and I should put him down as such’:75 the Significance of Prudential Knowledge and the Ongoing Role of Lay Knowledge

The story of expert medical evidence of insanity—the strategic selection of particular individuals, certain kinds of evidence, and distinct scientific techniques for use as expertise in criminal processes—is complex. Here, by way of contribution to our understanding of this area of criminal process, I wish to comment on the particular issue of the place of expert knowledge of ‘madness’ alongside non‐expert knowledge in the criminal law context. Growing legal reliance on expert medical evidence of insanity and the development of specialist knowledges of ‘madness’ might be thought to herald the end of a role for common knowledge in ascriptions of non‐responsibility based on insanity. Certainly, broadly, it is incontrovertible that, with the rise of expert medical knowledge about insanity, the significance of ordinary peoples’ testimony about an individual's insane condition declined and the significance—both practical and symbolic—of expert witness evidence increased. But, while acknowledging the growing significance of expert medical knowledge of insanity, it is important to recognize that this expert knowledge shared the knowledge field with non‐expert knowledge of mental incapacity. Before the development of an expert knowledge of insanity, the knowledge of ordinary people had been common, and I referred to common knowledge above. The rise of an expert knowledge of ‘madness’, however, meant that the knowledge of ordinary people was reconstituted, and, as I discuss in Chapter 3, I refer to this type of knowledge as ‘lay’ in order to highlight that it is defined as non‐expert. This type of knowledge plays a role in legal practices along with expert knowledge of insanity.

A sense of the shared knowledge field relating to insanity in criminal law can be gleaned from the gradual way in which expert knowledge cleaved apart from the broader body of common knowledge relating to insanity. There are two aspects to this point: first, knowledge of insanity and second, evidence about insane conditions. Regarding knowledge of insanity, it is clear that, as Porter argues, the development of expert medical knowledge of insanity ‘emerged on the basis of ‘natural beliefs’ about madness already well entrenched within common culture’.76 This meant that there was significant overlap between lay and expert knowledge of insanity, and that, at least initially, expert knowledge was as much moralized as medicalized.77 While the fit between lay and ‘specialist’ knowledge of insanity (p.151) loosened over time, even by the mid‐Victorian era professional medical discourse had not separated itself from common moral discourse.78 Regarding evidence about insane conditions, it is important not to overstate the change wrought to the criminal trial by expert evidence about insanity. At least initially, the role of medical witnesses was an extension of their role as neighbour or friend; like other witnesses, experts, such as prison doctors, were likely to be familiar with defendants, and did not stress their expertise.79 As Tony Ward argues, experts built upon common sense views and relied on ‘widely recognized signs of madness’ in their diagnosis and testimony.80

Even once expert knowledge of insanity cleaved apart from common knowledge (producing a lay knowledge of insanity), it continued to share the criminal law field with other types of knowledge. To gain an appreciation of how this worked, it is necessary to think carefully about the precise significance of expert knowledge of exculpatory mental incapacity, and here, I suggest a slight recasting of the usual story told about the rise of expert knowledge of ‘madness’ for criminal law purposes. As I mention in Chapter 3, the development of an expertise on ‘madness’ entailed a large scale movement from a situation in which ‘madness’ was generally ‘known’ and ‘visible’, to a situation in which it was only ‘visible and legible to the trained eye’.81 In general, this development has been narrated primarily in terms of its ontological significance, with experts claiming to give meaning to ‘madness’. However, in terms of understanding the way in which specialist knowledge was received in the legal arena, and the way in which expert testimony was evaluated, the situation was more nuanced that this general story would suggest. When the quantum of experience of insanity is taken into account, it becomes clear that it is not so much that insanity became ‘hidden’ in the legal context, but rather that sheer volume of exposure to it became more important. That is, prudential knowledge of insanity rose to the fore, according a certain type of knowledge of insanity a distinctive authority.

To explain how this recasting is significant, it is first necessary to distinguish between prudential and ontological types of expertise, as different dimensions of expert knowledge. In the context of the development of expertise about dietetic medicine at the end of the seventeenth and beginning of the eighteenth centuries, (p.152) Steven Shapin suggests that prudential expertise, accumulated experience and judgment informed by that experience, is analytically distinct from ontological expertise, which refers to the type of expertise claimed on the basis of special knowledge about underlying or hidden structures of the world or the domain in question.82 As Shapin notes, prudential expertise is not necessarily based on ‘knowledge of underlying processes reckoned qualitatively different from, or superior in kind to, lay knowledge’.83 In addition, even ontological expertise has to be presented (in Shapin's context, to patients) in a way that allows possessors of this knowledge to capitalize on their knowledge.84 This analysis of the different dimensions of specialist medical knowledge is germane to expert medical knowledge of insanity, and, indeed, takes on a particular significance in the nineteenth century, when the increasingly prominent courtroom profile of expert medical professionals of all stripes coincided with the rise to prominence of statistical studies.85 Viewed from the perspective of the legal process, this analysis raises a question about the distinct significance of prudential expertise in relation to insanity, which risks being subsumed beneath ontological expertise in understanding the significance of expert knowledges of ‘madness’ for criminal law purposes.

Reflecting on the prudential dimensions of expert medical knowledge of insanity, it appears that there are good reasons to take this dimension of expertise seriously when thinking about criminal law knowledge practices. What we see from examination of the OBPs is that the medical experts giving evidence in insanity trials reinforced their authority by way of reference to prudential expertise, to the expertise of experience. The following two records from the OBPs included questions that elicited responses referencing the expert's authority in these terms.86 For instance, Edward Oxford's trial for treason records the following exchange between the barrister for the Crown and an expert witness:

Q. Why could not any person form an opinion whether a person was sane or insane from the circumstances which have been referred to? A. Because it seems to require a careful (p.153) comparison of particular cases, more likely to be looked to by medical men, who are especially experienced in cases of unsound mind.87

Similarly, in the trial record of James Huggins’ trial for damage to property in 1850, Sir Alexander Morrison, a physician at Bethlehem Hospital, testified:

My attention has been directed for a great many years to persons of unsound mind—I have had the management, and charge of lunatics at Bethlehem Hospital for about seventeen years—I have had opportunities from my experience of paying attention to the subject of insanity—I have not had an interview with the prisoner—I have heard the whole of the evidence which has been given in court to‐day on the part of the prosecution and defence.88

These exemplary extracts suggest the importance of experts’ quantum of experience with insanity (in the latter case, apparently more important than an interview with the prisoner), which interacted with other factors influencing the evaluation of expertise such as the social status of the relevant expert.

The rise of a prudential expertise about insanity was premised on particular institutional conditions. These particular institutional conditions revolved around the designated spaces for the insane. Although asylums had appeared towards the end of the 1700s, it was only in the 1800s that they became the predominant way of managing and treating the insane.89 This development was significant in that it both reflected and enhanced the social profile of the insane, and regulated the handling of the insane in new ways.90 For my purposes in discussing the dimensions of expertise about ‘madness’, asylums have a particular significance because they created the institutional and organizational conditions for the development of prudential knowledge of ‘madness’. As Rose argues, these sorts of spaces provided the conditions for the ‘statisticalization and normalization of diseases’, creating a space in which any one case is located ‘within a field structured by norms’.91

The asylum movement ushered in a situation in which ‘state apparatus assumed a much greater role in the handling of insanity’.92 The enhanced role of the state spilled over from the civil administrative sphere into the criminal sphere. The second half of the nineteenth century saw the rise of an elaborate administrative framework for insanity and an affiliated change in the processing of the insane and the criminally insane. The Insane Prisoners Act 1840 provided that if two justices (p.154) of the peace certified that a prisoner was insane, either before or after trial, he or she could be transferred to an asylum.93 Under the Insane Prisoners (Amendment) Act 1864,94 the Home Office instituted its own medical examination of those who had been charged with capital offences and, when insanity was found, the defendants were removed to Broadmoor, which opened in 1863, or, later, to other mental hospitals.95 With the passage of the Criminal Lunatics Act 1884, the Home Secretary was obliged to order an examination of the defendant in certain circumstances.96 These changes to the administrative frame surrounding the insanity doctrine seem to have had an effect on the number of offenders who made the plea.97

The significance of the prudential dimension of expert knowledge about ‘madness’ as it relates to criminal law practices has not been fully appreciated. Scholars have emphasized the significance of ontological expertise over prudential expertise. But the latter seems to have been equally significant in understanding the patterns of proof of ‘madness’ in criminal process leading into the current era. This prudential dimension of expert knowledge was a distinctively modern inflection on knowledge of ‘madness’: what became relevant was knowledge of a class of people. These references to a quantum of experience, possible because of the institutionalization of the insane, expose the means by which expert knowledge of insanity acquired a distinctive basis of authority, and thus indicates one of the ways in which such knowledge was legitimated. In addition, the significance of this prudential dimension of expert knowledge of ‘madness’ was such that it meant that a space remained, within the legal context, and for the purposes of evaluation and adjudication, for lay or non‐expert knowledge of ‘madness’. The assessment of the particular condition of an individual, at a specified moment in time (the issue when claims of exculpatory ‘madness’ are made) was not and is not the exclusive jurisdiction of this type of knowledge. As I discuss in the next section, the role of lay knowledge is evident in the persistence of lay evaluation processes, and in the role of legal actors, who are lay for the purposes of knowledge of mental incapacity, meaning that expert knowledge continues to share the field with non‐expert knowledge of ‘madness’. When viewed in light of recent emphasis on safeguarding the domain of lay evaluation of insanity, which I discuss below, it seems that something of the blend of the general and the particular, referred to above in (p.155) relation to cross‐referencing among experts, and between experts and non‐experts, seems to have persisted, albeit in a different guise.

Knowing More Than They Can Say: Experts (and Non‐Experts) in the Current Era

In the period since the rise to prominence of expert medical knowledge of insanity in the nineteenth century, both legal processes and extra‐legal conditions relating to expertise have changed significantly. With the contemporaneous formalization of rules of evidence and procedure, an expert has come to be clearly differentiated from any other witness on the basis that he or she can give evidence of opinion on a question facing the court.98 Both formal and informal privileges attach to the distinct status of expert witnesses.99 More broadly, the proliferation of forms of knowledge falling within the broad category of scientific knowledge means that a dense matrix of individuals, methods, institutions, practices, and authority structures form the backdrop to legal reliance on expert evidence concerning matters such as insanity.100 Stretching beyond the confines of criminal law and process, the social and cultural status of expert knowledge has undergone a profound change, which is connected with the social, cultural, and political transformation from modernity to late modernity. Indeed, a changed attitude to expertise has been depicted as paradigmatic of this transformation. While this complex story is beyond the scope of this book, it is useful to note that, broadly, the transformation is characterized as one from automatic trust in experts, to self‐conscious or calculated trust.101

Against this larger frame, legal knowledge practices related to insanity continue to feature a mix of expert and non‐expert knowledges and the involvement of expert and non‐expert knowers. The significance of the mix of different types of knowledge on the mental incapacity terrain has been analysed in terms of the legitimization of criminal responsibility practices. For instance, Tony Ward has referred to the ‘dual authority of science and lay consensus’, which he argues underpins mental (p.156) incapacity doctrines such as insanity and diminished responsibility historically.102 To me, the conviction that both expert and non‐expert knowledge is crucial to this part of criminal law also applies in the current era. In my analysis, the broad continuity in knowledge practices related to exculpatory ‘madness’ (now divided across two doctrines, insanity and automatism) suggests that, under altered extra‐legal conditions, it continues to be a combination of types of knowledge of mental incapacity that provides a robust basis for adjudication and evaluation of claims to exculpatory ‘madness’.

In relation to the expert component of this mix of knowledges, the role of this type of knowledge is in part practical. Expert knowledge, in the form of expert evidence, helps to back up an individual's claim to exculpatory ‘madness’. The rules about the basis on which verdicts may be handed down evidences this role for expert knowledge in proof of exculpatory insanity. While expert medical evidence gradually became a common feature of insanity trials over the course of the nineteenth and twentieth centuries, it was only recently that expert evidence was mandated.103 The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 introduced a requirement that no jury is entitled to find insanity without evidence from two or more registered medical practitioners.104 By contrast, but in keeping with its grounding in a broader, more moralized notion of incapacity (as opposed to a more technical notion of disability), there is no requirement that expert evidence be adduced in support of an automatism claim. There are, however, a number of judicial comments suggesting that expert evidence plays a significant role in cases in which it is raised. In relation to automatism, the significance of expert evidence lies in part in overcoming the ‘presumption of mental capacity’.105 In Bratty, Lord (p.157) Denning stated that, in displacing the presumption of mental capacity, ‘the evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of mental incapacity’.106

The line between the admissibility and non‐admissibility of expert evidence—whether it be evidence concerning mental state at the time of the offence, or to support particular defence pleas, or going to the reliability of an individual's evidence107—demarcates the distinction between normality and abnormality. The rationale for expert evidence is that it addresses matters lying beyond the competence of the jury to evaluate. This role for expert medical evidence of incapacity has been invoked, for instance, in relation to automatism. In Hill v Baxter, Justice Devlin stated:

I do not doubt that there are genuine cases of automatism and the like, but I do not see how the layman can safely attempt without the help of some medical or scientific evidence to distinguish the genuine from the fraudulent.108

This rationale is premised on the opinion doctrine, which itself is a feature of the modern law of evidence. Expert evidence is an exception to the prohibition on opinion evidence.109

(p.158) In addition to this practical role for expert evidence and expert knowledge, it has an additional, more discursive significance: expert evidence assists in constructing the defendant as abnormal by making his or her condition the subject of specialist language of pathology. This role for expert evidence can be detected in relation to insanity (for instance, in connecting intoxication to the disease of alcoholism). This role for expert knowledge seems particularly significant in automatism cases because consciousness or voluntariness are matters of degree, and expert evidence plays a part in drawing a line at the point at which what might be (merely) a difference of degree becomes a difference of kind: the use of expert evidence to provide ‘credible support’110 for an automatism claim, for instance, provides a way of drawing a line at the point of abnormality. The process of drawing a line entails a reconstruction that ensures that the more slippery idea of a quantitative difference (impaired consciousness or voluntariness) is made to resemble a firmer qualitative difference (unconsciousness or involuntariness), and it is this kind of difference which is the basis of exculpation via the automatism doctrine.111

Turning now to the lay or non‐expert component of this mix of knowledges covering the field of exculpatory ‘madness’, and here too, this type of knowledge also plays a role in proof of insanity and automatism. Again, as is the case for expert knowledge, this role is multifaceted, but, with the rise of expertise about ‘madness’, it can no longer be said to provide an animating framework for decisions about exculpatory incapacity. The role of lay knowledge is easiest to detect in relation to lay evaluation practices (archetypally, the role of a jury in a serious criminal trial). In relation to automatism, the question of whether a defendant was in fact acting in a state of automatism is a question of fact for the jury,112 although the effect of the tight circumscription of automatism (via the tripartite requirements of a ‘total loss of voluntary control’, the external/internal factor distinction, and no prior fault), as well as the ‘presumption of mental capacity’, effectively limit the role of the jury because the circumstances in which the plea can be made are rare. The role of lay evaluation is wider when it comes to insanity. By contrast with other criminal law exculpatory doctrines, which are widely open to defence pleas, it is not possible for the prosecution to accept a plea of ‘not guilty by reason of insanity’ since the issue must go to a jury.113 This requirement has a symbolic (p.159) significance, as the jury must be seen to approve the insanity plea. The practical significance of the requirement that insanity go to the jury has, however, been questioned.114 But even acknowledging researchers’ claims about the greater importance of expert medical evidence in insanity trials, it should be recalled that this evidence may lead jurors to ‘reconsider their interpretations’ but ‘it does not compel them to abandon their own sense of what is plausible’.115

Beyond the specific role of lay jurors in the evaluation of insanity and automatism cases, lay knowledge has a broader if more diffused role in relation to exculpatory ‘madness’. This becomes apparent if, as I suggest in Chapter 3, it is recognized that legal actors—judges, prosecutors, and defence counsel—have lay knowledge when it comes to mental incapacity. This status as lay in relation to mental incapacity is not to deny legal actors their status as experts regarding legal practices and processes: rather, it is to acknowledge that, as Antony Giddens argues, in the current era, ‘all experts are themselves lay people most of the time’.116 It is my suggestion that, in relation to matters involving claims to exculpation on the basis of mental incapacity, legal expertise is mixed up with lay knowledge or non‐expertise. Approached this way, the role of lay knowledge of mental incapacity extends beyond lay evaluation, because legal actors employ such knowledge of mental incapacity in the execution of their roles. This is significant because, even if lay people have come to have a circumscribed role in the procedure relating to insanity, this does not entail a correspondingly minor role for the knowledge of ‘madness’ possessed by ordinary people. This type of knowledge continues to inform legal practices around mental incapacity. I take up this point again in Chapter 7.

Proving Exculpatory ‘Madness’: Reconstruction and Due Process

The final aspect of knowing and proving exculpatory mental incapacity to examine is the rules of evidence and procedure governing claims of ‘madness’. The crystallization of procedural and evidentiary practices relating to exculpatory ‘madness’ (p.160) occurred in two broad stages. In the first, the conditions of the ‘reconstructive’ criminal trial prevailed, and both this and the non‐partisan flavour of expert evidence of insanity pertaining at the time, informed the distinctive rules that govern claims to insanity. By the second stage, coinciding with the appearance of a discrete automatism doctrine, the adversarial trial had come to be oriented around an idea of due process, and the defendant viewed in part as a suspect.117 As a result of these different sets of conditions, the evidentiary and procedural rules that developed to govern automatism claims stand in contrast with those of insanity. I structure my discussion of these rules along the lines of a comparison between those applying to insanity and those applying to automatism.

The ‘Presumption of Sanity’ and the ‘Presumption of Mental Capacity’

Presumptions have a prominent role in structuring proof of mental incapacity. It has been said that presumptions are rules of law, not rules of evidence—and their purpose is a practical one as they assign tasks in the courtroom (between, say, prosecution and defence counsel)—but they connote particular epistemological positions.118 The two presumptions governing exculpatory mental incapacity—the ‘presumption of sanity’ and the ‘presumption of mental incapacity’—are predicated on an idea of what it is regarded as reasonable to believe about ‘madness’. The significance of the presumptions is two‐fold: they work to construct the individual relying on the doctrine as exceptional, and they limit the scope of the doctrines by screening out weaker cases. Taken together, this means that the presumptions have a circumscribing effect on the law of insanity and automatism.119

The M'Naghten Rules refer to the ‘presumption of sanity’, stating that ‘jurors ought to be told in all cases that every man is to be presumed sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction’.120 In order to structure the relationship between insanity and automatism, the courts have relied on what Lord Denning called the ‘presumption of mental capacity’, whereby ‘a man's act is presumed to be voluntary unless there is evidence from which it can reasonably be inferred that it was involuntary’.121 The ‘presumption of mental capacity’ is different from the (p.161) ‘presumption of sanity’, as the former does not place a legal burden on the defence.122 It does, however, require the defence to raise a ‘proper foundation’ for an automatism claim.123 Once a ‘proper foundation’ for the plea has been laid, the trial judge must determine whether, as a question of law, the condition alleged by the defendant is non‐insane automatism, as opposed to insanity.124

A close look at Bratty v Attorney‐General for Northern Ireland illustrates the significance of presumptions in circumscribing the scope of exculpatory mental incapacity. At trial, the defence put forward three arguments in the alternative: first, that Bratty was in a state of automatism due to psychomotor epilepsy; second, that his mental condition was such that he was not capable of forming intent to murder and should be liable only for manslaughter; and, third, that he was insane within the meaning of the M'Naghten Rules. The trial judge left insanity to the jury, but not automatism or lack of mens rea. Bratty was convicted and appealed. The House of Lords dismissed the appeal. The issue of the defendant's mens rea was given very little consideration. The Lords concluded that, as the jury must have found the defendant sane and responsible at the time of the killing because he was convicted, there were no grounds for the view that he lacked the intent to kill or commit grievous bodily harm. As this case suggests, however, claims that a defendant did not form the requisite mens rea, and claims that he or she was in a state of automatism (and could not form the mens rea) may be difficult to untangle in a particular case. But the presumption attached to automatism ensures that it is hard to argue that the prosecution has not made out one of the elements of the offence in cases such as Bratty—the defendant is in effect directed into a mental incapacity claim. A concern that an acquittal could too readily flow from a claim by the defendant to have been in a state of automatism at the time of the offence is detectable between the lines in the Bratty decision: a ‘presumption of mental capacity’ provides an evidential barrier to thin claims for exculpation on the basis of automatism.

(p.162) Raising Insanity or Automatism

Either the defence or the prosecution can raise the issue of an individual's insanity. The original position at common law was that only the defence could raise insanity,125 but in the mid‐twentieth century, the rule was reinterpreted retrospectively. In Bratty, the House of Lords held that, if the defendant adduces evidence of mental disorder to deny the requisite mens rea for an offence, the prosecution may adduce similar evidence in order to secure a special verdict rather than an acquittal.126 Further, as a result of the decision in Bratty, the judge may direct the jury on the issue of insanity even if it has not been raised by the defence or the prosecution.127 By contrast, the general rule is that automatism may only be raised by the defence. If the defence raises automatism, it will be open to the prosecution to raise insanity because the defendant's state of mind has been put in issue.128 The rule about the defence raising automatism arguably reflects the fact that, if successful, it results in an unqualified acquittal. In this respect, automatism stands in contrast to the insanity doctrine, unfitness to plead, and infanticide. But, it is similar to common law defences, such as self‐defence, which may only be raised by the defendant.

The rule about raising automatism may be understood through the general lens of due process, according to which the trial is now oriented to the efficient processing of criminal cases.129 Under these conditions, it makes sense to leave the question of automatism to the defence. The rule about raising insanity demands a different explanation. The rule about raising insanity may be interpreted as a device to ensure that potentially dangerous defendants are not granted ordinary acquittals on the grounds that they did not form the requisite mens rea due to mental abnormality—the rule ensures that the defendant cannot achieve an acquittal with evidence of mental incapacity and avoid the disposals that are triggered by a (p.163) successful insanity plea.130 Alongside this concern with dangerousness, the rule is premised on a distinctive basis—the idea that all parties have both the interest and the capacity to signal the presence of an insane defendant in the courtroom, and in avoiding the general verdict (an acquittal or conviction) that would otherwise follow. To me, viewed in this light, the rule echoes the concerns of the older ‘reconstructive’ criminal trial process, suggesting that the court continues to be a ‘witness to the truth’ of insanity.131

The Burden of Proof: Legal or Evidentiary

The M'Naghten Rules provide that the legal burden of proving insanity lies with the defence. The ‘presumption of sanity’ means that, unless the issue of insanity is raised by the prosecution, as discussed above, the defence must prove the defendant's insanity to the balance of probabilities standard.132 By contrast, after an initial period of uncertainty,133 in Bratty, the House of Lords held that, unlike insanity, the defence need only raise evidence of automatism, rather than prove it to a legal standard. Thus, if sufficient evidence of automatism is raised by the defence, the prosecution bears the burden of proving beyond reasonable doubt that the defendant was not acting in an automatistic state.134 The rule that an evidential burden is borne by the defence in relation to automatism has been interpreted as a means of safeguarding the defence from abuse via bogus claims.135

In its famous decision on burdens of proof, the House of Lords in Woolmington stated that it is the duty of the prosecution to prove the guilt of the prisoner, but classed the insanity doctrine as an exception to this principle, stating that it was one situation in which ‘it is incumbent upon the accused to prove his innocence’.136 The Court gave no explanation as to why insanity was considered an exception to the general rule. Rather, the House stated:

(p.164) M'Naghten's case stands by itself. It is the famous pronouncement on the law bearing on the question of insanity in cases of murder. It is quite exceptional and has nothing to do with the present circumstances. In M'Naghten's case the onus is definitely and exceptionally placed upon the accused to establish such a defence…It is not necessary to refer to M'Naghten's case again in this judgment for it has nothing to do with it.137

As a result of the decision in Woolmington, the insanity doctrine became an ‘anomaly’ in the common law.138 What is referred to as the reverse burden of proof marks the insanity doctrine out from other common law doctrines: where a burden on the defence exists elsewhere in the common law, it is an evidentiary one (as in duress and self‐defence).

The traditional explanation for the anomalous burden of proof for insanity gestures towards a diffused concern with the ‘provability’ of exculpatory incapacity—it rests on the idea some facts are peculiarly within the provenance of the defendant, resulting in a perceived difficulty in proving abnormal mental states. According to this idea, inferences about an insane defendant's mental state cannot be made with the confidence with which inferences about the mental state of non‐insane defendants may be made.139 Reasoning based on this concern is found in Lord Woolf's comment that the burden of proof in insanity is reversed because ‘proof of the commission of any offence requires the existence of a guilty mind and the ability to prove this depends on courts being able to rely on the presumption of mental capacity in the absence of evidence to the contrary’.140 Relatedly, the reverse burden of proof has also been explained as a result of concern with feigned insanity. The concern here is that juries might be duped by fabricated claims of insanity. Smith has suggested that ‘fear of fakery’, coupled with anxiety about the ‘indeterminacy’ of criminal responsibility, aggravates ‘uncertainty over the level of moral, cognitive, and volitional capacity necessary to incur criminal liability’.141 Smith's argument does not explain how the reverse burden in particular came to be conceived of as a solution to that indeterminacy, and, overall, the traditional explanation for the anomalous burden of proof for insanity is not entirely persuasive.

My own reading of the reverse burden is two‐part, seeking to account separately for the placement of the burden on the defence in the M'Naghten Rules, and the burden remaining on the defence, even as a contemporary anomaly. The burden of proof was placed on the defence at the time of M'Naghten in 1843 because, in this era, such a burden was not anomalous, but rather an instance of the general (p.165) practices of English courts.142 On this reading, the reverse burden was originally one instance of a general rule that something like a nascent burden of proof for all defences rested on the defence.143 This explanation fits with the account of Woolmington that regards it as altering rather than affirming the law on burdens of proof.144 Why, then, was insanity left behind when, after Woolmington, burdens of proof became ‘progressively more favourable’ to defendants?145 Here, successive failures to reform the M'Naghten insanity doctrine must bear a significant portion of the responsibility. Beyond this, it seems to me that the effect of older ideas about the court as a ‘witness to the truth’ of insanity can still be felt here. When viewed in light of continuities around the substantive significance of a defendant's conduct in insanity cases,146 the idea of a heavier burden on the defendant than is otherwise placed on him or her via the common law seems to reflect the stamp of the distinctive ‘reconstructive’ criminal trial process.

The Special Verdict or the General Verdict

A verdict of ‘not guilty’ following a successful automatism plea is an ordinary acquittal. This means that it is a typical full defence.147 By contrast, if the jury finds the (p.166) defendant insane, the result is the special verdict, ‘not guilty by reason of mental disorder’. As I discuss in Chapter 5, the Criminal Lunatics Act 1800 provided that, where a ‘person was insane at the time of the commission’ of a felony offence, he was to be acquitted and ‘the jury shall be required to find specially whether such person was insane at the time of the commission of such offence’, after which the court ‘shall order such person to be kept in strict custody’. In contrast to a general verdict (‘guilty’ or ‘not guilty’), the special verdict includes a statement of the factual basis on which the verdict has been reached.

The longstanding and intimate connection between the insanity doctrine and the special verdict has been explained as the result of a policy concern with marking out those defendants who are to be subject to the special coercive powers of the state from those who are either to be acquitted or convicted through the normal processes of the criminal law. In this light, and reflecting the interaction of social welfare and policy concerns and the principles of criminal liability in this area of the law, the special verdict is a unique device by which the detention of insane defendants in the interests of social protection was brought within the bounds of the criminal law.148 It is clear that the special verdict is both premised on and signals that the insane defendant is dangerous, a construction that has proved remarkably durable, as I discuss in Chapter 5. As George Fletcher puts it, ‘a finding of insanity answers the question: is the accused sufficiently dangerous to be justifiably committed?’149 An additional dimension of the special verdict is illuminated by Paul Robinson's analysis: according to Robinson, the special verdict avoids any ‘potential for misapprehension’ about why the defendant has been exculpated, ensuring that the interests of ‘condemnation and general deterrence’ remain intact.150

(p.167) Some commentators have advocated the possibility of reforming the law to introduce a special verdict to follow a successful automatism plea. This law reform proposal has two variants, an older and a newer variant. In its older variant, in order to foster an expanded scope of automatism, some commentators have argued that a set of disposal options should be available in cases of automatism. Citing historical precedent for conditional acquittals, Walker argues that ‘the logical course would have been to ask for legislation to allow the court to insist on precautions in such cases [as Charlson]’.151 The modern variant of this proposed reform, advocated by R M Mackay (among others) involves extending the special verdict to automatism. This would preserve automatism as a legal entity but provide some control over automatistic defendants considered to be dangerous.152 Neither conditional acquittals nor an extension of the special verdict disposal options is on the current law reform agenda. An alternative law reform proposal, although one also motivated by concern with disposals of dangerous defendants, would alter the boundary between the insanity and automatism doctrines.153

Disposal or No Disposal

Reflecting concerns with dangerousness that marked the development of the insanity doctrine itself, and procedural features such as the special verdict, for all but the recent decades of a formal insanity law, there has only been one disposal option following a successful insanity plea: indefinite detention. As a result of the Criminal Procedure (Insanity) Act 1964, the outcome of an insanity verdict became hospitalization.154 The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 amended the law to introduce a range of disposals to follow an (p.168) insanity verdict.155 These disposal options did not initially apply where the defendant had been charged with an offence for which the sentence is ‘fixed by law’.156 But the Domestic Violence, Crime and Victims Act 2004 (which removed guardianship orders as one of the disposal options) provided that, where the sentence for an offence is ‘fixed by law’, the courts have power to order a hospital order only if the necessary medical criteria are satisfied.157 Post the 2004 Act, the disposal of insane defendants is more flexible than it has been since 1800.

Statutory reforms to provide for a range of disposal options can be readily interpreted as a response to fairness and human rights concerns about indefinite hospitalization. The criticisms of indefinite detention under the 1964 Act were legion: it possibly meant longer detention than the defendant would face had he or she been convicted of the offence and may not have been an appropriate response to the condition which gave rise to the insanity plea.158 These considerations meant that there was little reason for defence counsel to make a plea of insanity except in those cases where the defendant was charged with a serious offence (something which has arguably skewed popular understanding of the operation of the law of insanity). Even after the 1991 Act was passed, concerns remained about the lawfulness of indefinite hospitalization imposed on individuals charged with murder but found ‘not guilty by reason of insanity’, which were only addressed in 2004.159 Underscoring specific concerns with the human rights of insane individuals appears to be a different attitude on the part of legislators and others to the criminally insane. These recent reforms to the disposal of insane defendants represent something of a decoupling of insanity and dangerousness, although, reflecting the rise of concerns with risk (which I discuss in Chapter 5), some sort of disposal still follows a successful insanity plea.

To conclude this discussion of evidence and proof of exculpatory ‘madness’, it is appropriate to refer to the empirical profile of both insanity and automatism. These emprical profiles serve to highlight the way in which the symbolic significance of these doctrines outstretches their practical role in the criminal law. Empirical research indicates that findings of ‘not guilty by reason of insanity’ have increased since the passage of the 1991 Act, although overall rates of success in raising (p.169) insanity remain low.160 Mackay and colleagues suggest that this increase is due to the flexibility in disposal orders introduced in the Act, concluding that the Act has removed disincentives for pleading insanity.161 Several writers note that the number of defendants with mental illnesses is significantly higher than the insanity doctrine figures suggest.162 There seem to be three explanations, which, together, provide a persuasive explanation for the low numbers of individuals successfully relying on the insanity doctrine. First, defendants who raise insanity might instead be found unfit to plead, or, if they have been charged with murder, may rely on diminished responsibility rather than insanity.163 A second explanation is that even after reforms to introduce of a range of disposal options, the prospect of a hospital order or other disposal may seem unattractive. A third explanation for the low number of defendants utilizing the insanity doctrine is the limited reach of the M'Naghten doctrine,164 although, as several commentators note, the insanity doctrine has a more flexible application in practice than is apparent on the face of the law.165 (p.170) If the law of insanity is to be reformed following the Law Commission's current programme of reform (which I canvass in Chapter 5),166 it seems reasonable to expect that it might be with a view to increasing the numbers of individuals successfully raising insanity.


(1) See Chapter 3.

(2) As I suggest in Chapter 3, what marks out the terrain of mental incapacity in criminal law is not the presence of one particular type of knowledge, but the interaction between different types of knowledge—expert and non‐expert knowledge.

(3) A Duff et al The Trial on Trial (Vol 3): Towards a Normative Theory of the Criminal Trial (Oxford: Hart, 2007) 47.

(4) J P Eigen Witnessing Insanity: Madness and Mad Doctors in the English Court (New Haven: Yale University Press, 1995) 5. This movement was part of a broader transformation which had major epistemological implications: for a discussion in the context of theology and natural sciences, see L Dalston ‘Marvelous Facts and Miraculous Evidence in Early Modern Europe’ (1991) 18 Critical Inquiry 93.

(5) R Porter Mind‐Forg’d Manacles: A History of Madness in England from the Restoration to the Regency (London: Athlone Press, 1987) 43; see also D Rabin Identity, Crime and Legal Responsibility in Eighteenth Century England (New York: Palgrave Macmillan, 2004) 15.

(6) Mind‐Forg'd Manacles 108, 81.

(7) This is evident for instance in the treatment of witches. For discussion, see O Davies Witchcraft, Magic and Culture, 1736–1951 (Manchester: Manchester University Press, 1999).

(8) Porter Mind‐Forg'd Manacles 35.

(9) See further Chapter 3, where, under the ‘manifest madness’ label, I analyse the mental incapacity terrain as marked by two topographical features, one ontological and one epistemological.

(10) It has been suggested that ‘trial by ordeal’ was not strictly a proof outcome, as in proof of facts: rather, it was an adjudication outcome in that it marked the termination of a dispute: see H L Ho ‘The Legitimacy of Medieval Proof’ (2003–04) 19(2) Journal of Law and Religion 259. See also A Duff et al The Trial on Trial (Vol 3) 22–5.

(11) See A Duff et al The Trial on Trial (Vol 3) 26.

(12) See T A Green ‘A Retrospective on the Criminal Trial Jury, 1200–1800’ in J Cockburn and T A Green (eds) Twelve Good Men and True: The Criminal Trial Jury 1200–1800 (Princeton: Princeton University Press, 1988) 358–400; D Kerlman ‘Was the Jury Ever Self‐Informing?’ in M Mulholland and B Pullan (eds) Judicial Trials in England and Europe 1200–1700 (Manchester: Manchester University Press, 2003) 58–80.

(13) For an overview, see J C Oldham ‘The Origins of the Special Jury’ (1983) 50 University of Chicago Law Review 137 and S Landsman ‘Of Witches, Madmen and Products Liability: An Historical Survey of the Use of Expert Testimony’ (1995) 13 Behavioral Sciences and the Law 131, 134–8. Regarding the ‘jury of matrons’, see J C Oldham ‘On Pleading the Belly: A History of The Jury of Matrons’ (1985) 6 Criminal Justice History 1.

(14) A Duff et al The Trial on Trial (Vol 3) 27.

(15) For instance, the older device of oaths, grounded in earlier beliefs about conscience and governed by fear of divine sanction, was retained while newer criteria for assessing witnesses (such as the exclusion from civil trials of witnesses with financial interests) were introduced. Witnesses could provide evidence of what they had seen or heard and courts could rely on documents that recorded actions or rights to supplement such evidence: see B Shapiro A Culture of Fact, England, 1550–1720 (Ithaca: Cornell University Press, 2000) 12–13. As Dear argues, the truth could be accepted by others on the basis of personal and institutional authority: see P Dear, ‘The Meanings of Experience’ in K Park and L Dalston (eds) The Cambridge History of Science Vol 3 Early Modern Science (Cambridge: CUP, 2006) 106–31.

(16) A Duff et al The Trial on Trial (Vol 3) 31–2.

(17) See B Shapiro ‘The Concept of “Fact”: Legal Origins and Cultural Diffusion’ (1994) 26(2) Albion: A Quarterly Journal Concerned with British Studies 230. The idea of ‘matter of fact’ did not admit of mere probability that something was true: see P Dear ‘From Truth to Disinterestedness’ (1992) 22(4) Social Studies of Science 619, 627.

(18) See Dear ‘From Truth to Disinterestedness’ 620–1. A ‘matter of fact’ was a social as well as epistemological category, with the social status of witnesses a relevant factor in the production of truth. Indeed, assumptions about reliable witness testimony roughly corresponded to the existing social hierarchy, with factors such as gender, status and reputation, and property‐holding affecting witness credibility: see Shapiro A Culture of Fact 14–17.

(19) In general, see A Duff et al The Trial on Trial (Vol 3) 29–40. In relation to the ‘middling sort’, see C Herrup The Common Peace (Cambridge: CUP, 1987) 2. Regarding the notion of a ‘moral certainty’, as Peter Dear argues, a ‘moral certainty’ (as opposed to physical or metaphysical certainty) was ‘guaranteed by prudent and truthful men’, rather than by the possibility of independent confirmation: see P Dear ‘From Truth to Disinterestedness’ 624. Dear charts the ways in which, over the seventeenth century, objectivity came to be attached to disinterestedness rather than truth, and the way in which it thus affected experimental philosophy.

(20) B Shapiro ‘The Concept of “Fact” ’ 252. Shapiro argues that this lesson about impartiality drawn from the English legal system was transferred to other ventures, such as scientific practice, which were seeking methods to truthfully ascertain matters of fact and to give observed and experimentally derived natural matters of fact, for instance, the status of knowledge. Shapiro regards the ‘peculiar faith’ of the English in the ability of lay people to ascertain the truth as a cultural matter (233).

(21) Porter Mind‐Forg'd Manacles 19.

(22) See Chapter 3. In his work on ‘manifest criminality’, George Fletcher refers to ‘general knowledge, on which judgments of criminality depended (G P Fletcher Rethinking Criminal Law (Oxford: OUP, 2000) 82. Nicola Lacey refers to ‘local knowledge’: N Lacey ‘Responsibility and Modernity in Criminal Law’ (2001) 9(3) Journal of Political Philosophy 249, 265.

(23) Porter Mind‐Forg'd Manacles 14, 18.

(24) See for discussion Herrup The Common Peace ch. 3.

(25) Porter Mind‐Forg'd Manacles 38. For a discussion of the idea of community in the early modern era, see P Withington Society in Early Modern England: The Vernacular Origins of Some Powerful Ideas (Cambridge: Polity Press, 2010).

(26) OBP, Philip Parker, 8 December 1708 (t17081208–34).

(27) OBP, Alice Hall, 17 January 1709 (t17090117–19).

(28) R v Ferrers (1760) 19 St Tr 885, extracted in Rabin Identity, Crime and Legal Responsibility 22. See also D Hay ‘Property, Authority and the Criminal Law’ in D Hay, P Linebaugh, J G Rule, E P Thompson and C Winslow (eds), Albion's Fatal Tress: Crime and Society in Eighteenth Century England (London: Allen Lane, 1975) 33–4.

(29) Porter Mind‐Forg'd Manacles 35.

(30) See Chapter 3. See also A Loughnan ‘ “In a Kind of Mad Way”: A Historical Perspective on Evidence and Proof of Mental Incapacity’ (2011) 35(3) Melbourne University Law Review 1047.

(31) OBP, Thomas Reed, 4 December 1723 (t17231204–20).

(32) OBP, Thomas Nash, 12 April 1727 (t17270412–21).

(33) See A Duff et al The Trial on Trial (Vol 3) 40.

(34) Defendants’ right to a full legal defence in felony trials was only formally realized with the Prisoners Counsel Act 1836. Defendants did not gain the right to give evidence at trial until the end of the nineteenth century: Criminal Evidence Act 1898. See D J A Cairns Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Clarendon Press, 1998) 169–76; C Emsley Crime and Society in England 1750–1900 (London: Pearson Longman, 2005) 183–211.

(35) This has been referred to as the ‘silencing’ of the defendant in the adversarial criminal trial. For a discussion by way of contrast with the inquisitorial system, see J Hodgson ‘Conceptions of the Trial in Inquisitorial and Adversarial Procedure’ in A Duff et al The Trial on Trial (Vol 2): Judgment and Calling to Account (Oxford: Hart, 2006) 223, 235–9. See also A Duff et al The Trial on Trial (Vol 3) 203–13.

(36) A Duff et al The Trial on Trial (Vol 3) 44.

(37) OBP, William Newton Allnutt, 13 December 1847 (t18471213–290).

(38) See S Shapin Never Pure: Historical Studies of Science as if it was Produced by People with Bodies, Situated in Time Space, Culture and Society, and Struggling for Credibility and Authority (Baltimore: Johns Hopkins University Press, 2010) 293, and more generally, his ch. 13. As Shapin notes, while the humanist movement associated with the Renaissance was intended as a revival of the classical tradition, the scientific revolution of the seventeenth century was self‐consciously a process of intellectual innovation.

(39) Opposition to ‘the new philosophy’ in universities led to the creation of ‘scientific societies’, such as the Royal Society of London (established in 1660), existing outside their boundaries: see P Burke A Social History of Knowledge: From Gutenberg to Diderot (Cambridge: Polity Press, 2000) 38–44.

(40) A Social History of Knowledge 46, and, more generally, 44–9.

(41) See A Giddens Modernity and Self‐Identity: Self and Society in the Late Modern Age (Berkeley: Stanford University Press, 1991) and The Consequences of Modernity (Cambridge: Polity Press, 1990).

(42) See generally N Rose ‘Medicine, History and the Present’ in C Jones and R Porter (eds) Reassessing Foucault: Power, Medicine and the Body (London: Routledge, 1994). As Mary Poovey argues, efforts to represent and conceptualize the population of Britain as an aggregate and to delineate a social sphere, distinct from a political and economic domain date from this period: see M Poovey Making A Social Body: British Cultural Formation 1830–1864 (Chicago: University of Chicago Press, 1995) ch. 1. In this process, medicine has been implicated in the ways in which society came into existence, representing the first positive knowledge to be taken as expertise: see Rose ‘Medicine, History and the Present’ 56.

(43) See T Forbes Surgeons at the Bailey: English Forensic Medicine to 1878 (New Haven: Yale University Press, 1985).

(44) N Rose Powers of Freedom: Reframing Political Thought (Cambridge: CUP, 1999) 138, and, more generally, ch. 12. For Rose, these ‘psy’ knowledges, are bound up in the form of political power, and in the relations between self and others and state.

(45) See generally J P Eigen Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (Baltimore: Johns Hopkins University Press, 2003).

(46) See Lacey ‘Responsibility and Modernity in Criminal Law’ 268. The ‘factualisation’ of mens rea was a prerequisite for subsequent doctrinal requirements like a requirement of ‘abnormality of mind’ in diminished responsibility: see Chapter 9.

(47) By the end of the 1800s, this reorganization would result in a professional cohesion that was buttressed by a core body of licensing, recognized educational institutions, and learned societies. See generally C Lawrence Medicine in the Making of Modern Britain (London: Routledge, 1994) and ‘Incommunicable Knowledge: Science, Technology and the Clinical Art in Britain 1850–1914’ (1986) 20(4) Journal of Contemporary History 503. It has been suggested that the combination of a collective desire to expand medical knowledge, and the rise of an administrative rationality that augured for the governance of large populations through classifications prompted the acceptance of specialisms in medicine in the last decades of the century: see G Weisz ‘The Emergence of Medical Specialization in the Nineteenth Century’ (2003) 77 Bulletin of Historical Medicine 536, 572–4.

(48) The new ‘knowledge associations’ marked the professionalization of groups such as natural scientists, surgeons, and ‘alienists’. For discussion, see M Daunton ‘Introduction’ in M Daunton (ed) The Organisation of Knowledge in Victorian Britain (Oxford: OUP, 2005) 1–27.

(49) For a discussion in the context of medical knowledge, see W F Bynum Science and the Practice of Medicine in the Nineteenth Century (Cambridge: CUP, 1994).

(50) See generally, J P Eigen ‘“An Inducement to Morbid Minds”: Politics and Madness in the Victorian Courtroom’ in M D Dubber and L Farmer (eds) Modern Histories of Crime and Punishment (Berkeley: Stanford University Press, 2007) 66–87.

(51) J P Eigen ‘Delusion's Odyssey: Charting the Course of Victorian Forensic Psychiatry’ (2004) 27(5) International Journal of Law and Psychiatry 395, 399.

(52) For instance, Roger Smith pits the ‘voluntarist’ discourse of law against the ‘determinist’ discourse of medicine (R Smith Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981) 3) and argues that a strident conflict characterized the encounter between an ‘established criminal administration’ and the newly emerging profession of psychiatry in the nineteenth century (Trial by Medicine 168). According to Smith, the ‘vehemence’ of this conflict has died away in the current era because ‘psychiatry has become a profession’ and because courts are using ‘deferential language and accepting extra‐judicial medical institutions’ ((Trial by Medicine 169). See also P Bartlett ‘Legal Madness in the Nineteenth Century’ (2001) 14(1) Social History of Medicine 107, 110.

(53) J P Eigen and G Andoll ‘From Mad‐Doctor to Forensic Witness: The Evolution of Early English Court Psychiatry’ (1986) International Journal of Law and Psychiatry 159, 169; see also Eigen ‘Delusion's Odyssey’ 411; T Ward ‘Observers, Advisors, or Authorities? Experts, Juries and Criminal Responsibility in Historical Perspective’ (2001) 12 Journal of Forensic Psychiatry 105, 110. In addition, as Martin Wiener argues, accounts of such conflict neglect the extent to which Victorian psychiatry and law shared concerns, in relation to the control of impulses, for example: see M J Wiener Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge: CUP, 1990) 84. In relation to the current era, Norrie argues that, crucially, law and psychiatry share the ‘individuation of social problems’, meaning that they have ‘more in common as co‐workers at the coal face of social order than their ideological disagreements’ would suggest (A Norrie Crime, Reason and History: A Critical Introduction to Criminal Law (London: Butterworths, 2001) 195).

(54) For instance, OBP, John Francis, 26 November 1849 (t18491126–41) (in which Alexander John Sutherland, a physician, stated ‘Yes, I should think that if he was really mad in 1846 because he expected to be transported, it would not be at all improbable that if he expected to be transported in 1849, it would produce a temporary state of madness’). I discuss this point about the capaciousness of ‘clinical’ assessments in relation to infanticide in Chapter 8. Here, it is useful to note that, by the end of the nineteenth century, while rules had hardened to exclude certain social considerations from general inquiries into criminal liability, the open‐textured nature of medical diagnoses facilitated their inclusion in relation to insanity. See Norrie Crime, Reason and History 191.

(55) As I discuss in Chapter 5, reliance on expert medical evidence did not resolve broader disputes about the scope and purpose of the insanity doctrine, which continued over the course of the nineteenth century. For example, the difficulty of distinguishing between an ‘irresistible impulse’ and an impulse that was merely unresisted beset the law on insanity until ‘irresistible impulse’ was brought within the doctrine of diminished responsibility after it was introduced by statute in 1957: see R v Byrne [1960] 2 QB 396.

(56) See S Landsman ‘One Hundred Tears of Rectitude: Medical Witnesses at the Old Bailey, 1717–1817’ (1998) 16(3) Law and History Review 445.

(57) See OBP, John Francis, 26 November 1849 (t18491126–41) (in which the judge restricted the scope of the questions that could be put to the expert witness). See also my Chapter 3 for a discussion of the relevance of expert testimony on the general nature of the mental condition suffered by the defendant.

(58) This period is also notable for a growing awareness of the different status of experts who saw the defendant close to the time of the offence, and those who had not seen him or her until closer to the trial, or, indeed at the trial. For instance, in Mary Ann Hunt's trial for murder (OBP, Mary Ann Hunt, 16 August 1847 (t18470816–1797)), after the issue was raised by defence counsel, the Court referred to M'Naghten in admitting an additional expert medical professional, who was present in Court, to testify to the defendant's sanity (‘I have attended to the evidence in the case since my arrival here… [the witness statements] do not, in my judgment, indicate any unsoundness in the prisoner’).

(59) OBP, James Sweetland, 28 June 1880 (t18800628–423).

(60) OBP, William Tuchet, 21 October 1844 (t18441021–2396).

(61) OBP, William Parker, 12 January 1874 (t18740112–123).

(62) OBP, Charles Broadfoot Westron, 4 February 1856 (t18560204–263).

(63) OBP, John Cuthbert, 25 October 1875 (t18751025–588).

(64) See my ‘manifest madness’ analysis in Chapter 3. For a discussion of the particular workings of expert medical evidence in a trial taking place in the Victorian era, see G Edmond ‘The Law‐Set: The Legal‐Scientific Production of Medical Propriety’ (2001) 26(2) Science, Technology and Human Values 191–226.

(65) On the historical practice of the coroners’ inquests, and their gradual recasting as medical tribunals over the course of the nineteenth century, see I Burney Bodies of Evidence: Medicine and the Politics of the English Inquest, 1830–1926 (Baltimore: Johns Hopkins University Press, 2000).

(66) Regarding the period 1717–1817, see Landsman ‘One Hundred Tears of Rectitude’ 445.

(67) C Jones Expert Witnesses: Science, Medicine and the Practice of Law (Oxford: Clarendon Press, 1994) 22. Stephen Landsman argues that the role of medical witnesses was often ‘that of quasi‐official inquirers’ called into the case by public officials such as magistrates and coroners: see Landsman ‘One Hundred Tears of Rectitude’ 453.

(68) An example is provided by William Crouch's trial for the murder of his wife (OBP, William Crouch, 6 May 1844 (t18440506–1363)), in which the defendant argued he was in a state of concussion from a blow to the head. Several experts testified about concussion and head wounds, one of whom stated that ‘it was not at all a serious wound’. Crouch was convicted and sentenced to death.

(69) For instance, OBP, James Huggins, 7 July 1851 (t18510707–1502) (in which John Conolly, a physician to the Asylum at Hanwell is recorded as saying ‘if a man who appeared to be fond of his wife for many years, beat her frequently and violently, I should strongly suspect that he was mad’). See Eigen ‘An Inducement to Morbid Minds’ 66–87.

(70) A Duff et al The Trial on Trial (Vol 3) 46–7. This year also saw the passage of the Medical Witnesses Act, which meant that medical witness at coronial inquests were to be paid.

(71) The Trial on Trial (Vol 3) 47. See also L Farmer ‘Arthur and Oscar (and Sherlock): The Reconstructive Trial and the “Hermeneutics of Suspicion”’ (2007) 5(1) International Commentary on Evidence 1.

(72) These reforms, which continued over the century, included the introduction of defence counsel in felony trials (Prisoners’ Counsel Act 1836 (6 & 7 Will IV c.114)), the creation of public prosecutors (Prosecution of Offences Act 1879 (42 & 43 Vict. c.22)), and the introduction of a limited appeal system in criminal cases (Crown Cases Act 1848 (11 & 12 Vict. c.43)) and the defendant's right to give evidence at the end of the century (Criminal Evidence Act 1898). See generally Cairns Advocacy and the Making of the Adversarial Criminal Trial 169–76; Emsley Crime and Society 183–211.

(73) As Lindsay Farmer observes, the primary aim of the various reforms to criminal trial process was to expedite the criminal process with concern about the rights of the accused merely a secondary consideration: see L Farmer ‘Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45’ (2000) 18(2) Law and History Review 397, 413. For a discussion of the significance of the development of a sizable summary jurisdiction, which also occurred over this period, see L Farmer Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law 1747 to the Present (Cambridge: CUP, 1997).

(74) See L Farmer ‘Arthur and Oscar (and Sherlock)’ 51, and, regarding expert evidence more generally, see M Redmayne Expert Evidence and Criminal Justice (Oxford: OUP, 2001).

(75) OBP, Robert Pate, 8 July 1850 (t18500708–1300).

(76) Porter Mind‐Forg'd Manacles 33.

(77) Some evidence for the ongoing significance of lay knowledge as a framework for understanding insanity outside the bounds of the criminal law may be found in Akihito Suzuki's study of the care of the insane at home. In an account of what he calls ‘domestic psychiatry’, Akihito Suzuki examines the attitudes and beliefs of those nineteenth-century middle and upper class families who cared for an insane member at home. He argues that lay frameworks formed an important lens for understanding madness. In Suzuki's words, rather than depend on the ‘dictates of learned medicine, laypersons employed their own cultural framework to understand, treat and cope with the madness of their family members’ (93): see A Suzuki Madness at Home: The Psychiatrist, the Patient, and the Family in England 1820–1860 (Berkeley: University of California Press, 2006).

(78) Wiener Reconstructing the Criminal 123. Shapin's words about the vocabulary of dietetic culture—that it was the subject of ‘joint ownership’ by doctors and patients—seem apposite here: see Shapin Never Pure 289.

(79) Eigen and Andoll ‘From Mad‐Doctor to Forensic Witness’ 168.

(80) T Ward ‘Law, Common Sense and the Authority of Science: Expert Witnesses and Criminal Insanity in England, CA. 1840–1940’ (1997) 6(3) Social and Legal Studies 343, 353.

(81) Rose Powers of Freedom 138, and, more generally, ch. 12.

(82) Shapin Never Pure 311. This type of expertise was not new in the seventeenth and early eighteenth centuries, but the mechanical ideas of the scientific revolution gave it new bases for cultural authority (312).

(83) Never Pure 310–11. Shapin discusses this distinction in relation to the kinds of expertise that might be claimed by ‘empirics’ and ‘rational physicians’ (although he notes that neither these categories of expertise nor associated professional communities were mutually exclusive).

(84) For Shapin, even as scientific language (for example of ‘particles’ and ‘blood vessels’) began to separate from everyday language, this ontological knowledge had to be displayed in a way that permitted physicians to capitalize on their expertise: see Never Pure 312.

(85) As Ian Hacking argues, during the nineteenth century, following the rise of probability in the years to 1850, notions of normalcy and deviations from the norm came into existence—it became possible to class individuals in new ways, producing knowledge that was harnessed for new means of social control. I Hacking The Taming of Chance (Cambridge: CUP, 1990). Hacking chronicles the ways in which, buttressed by statistical information gathered—on suicides etc—for the purposes of social control, it became possible to define new classes of people, to conceptualize society in new ways and to speak of ‘laws of probability’.

(86) Other trials could be referenced here: see, for instance, OBP, Ann Cornish Vyse, 7 July 1862 (t18620707–745) and OBP, John Selby Watson, 8 January 1872 (t18720108–117).

(87) OBP, Edward Oxford, 6 July 1840 (t18400706–1877). For detailed discussion of this case, see J P Eigen ‘ “I answer as a physician”: Opinion as Fact in pre‐McNaughtan Insanity Trials’ in M Clark and C Crawford (eds) Legal Medicine in History (Cambridge: CUP, 1994) 184–91.

(88) OBP, James Huggins, 7 July 1851 (t18510707–1502).

(89) See generally A Scull Museums of Madness: The Social Organization of Insanity in Nineteenth‐Century England (London: Allen Lane, 1979), but, for a critical account of the historiography on the asylum movement, and a discussion of the care of the insane outside the bounds of the asylum, see Suzuki, Madness at Home Introduction.

(90) As Andrew Scull argues, asylums ensured that the insane were a prominent feature of the social landscape: see A Scull ‘The Insanity of Place’ (2004) 15(4) History of Psychiatry 417, 427. These asylums are now somewhat notorious for the ways in which they were open to the public: see Porter Mind‐Forg'd Manacles 36–7.

(91) Rose ‘Medicine, History and the Present’ 60.

(92) A Scull ‘The Social History of Psychiatry in the Victorian Era’ in A Scull (ed) Madhouses, Mad‐Doctors and Madmen: The Social History of Psychiatry in the Victorian Era (London: Athlone, 1981) 6.

(93) See N Walker Crime and Insanity in England (Vol 1: The Historical Perspective) (Edinburgh: Edinburgh University Press, 1968) 204.

(94) 27 & 28 Vict. c.29.

(95) See M J Wiener Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: CUP, 2004) 281–2.

(96) 47 & 48 Vict. c.64. Walker argues that, by this time, the narrowness of the M'Naghten Rules was beginning to be appreciated, and the Home Secretary's power to look beyond them was welcome: see Crime and Insanity in England (Vol 1) 210.

(97) Referring to the national statistics for murder, Walker identifies an ‘upward trend’ in the success of the plea in the last decades of the 1800s (Crime and Insanity in England (Vol 1) 85–6). In Wiener's study, the proportion of offenders charged with murder who were certified as criminal lunatics increased markedly between 1857 and 1890 (Wiener Reconstructing the Criminal 272; see also M J Wiener Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: CUP, 2004) 284).

(98) In addition, an expert is not generally compellable (that is, required to be present in court) and can be paid. For discussion, see P Alldridge ‘Forensic Science and Expert Evidence’ (1994) 21(1) Journal of Law and Society 136.

(99) The practical dimension of the expert's status in the criminal courtroom is his or her ‘social capital’. See M Lynch ‘Circumscribing Expertise: Membership Categories in Courtroom Testimony’ in S Jasanoff (ed) States of Knowledge: The Co‐production of Science and Social Order (London: Routledge, 2004) for discussion.

(100) Given this, a strong case has been made for the close sociological study of experts and expertise in law: see G Edmond and D Mercer ‘Experts and Expertise in Legal and Regulatory Settings’ in G Edmond (ed) Expertise in Regulation and Law (Aldershot: Ashgate, 2004) 1–31.

(101) See Giddens Modernity and Self‐Identity and Consequences of Modernity. Over this period, scientific knowledge has been subject to large scale demystification and deconstruction. Science studies scholars have argued that science (and technology) no longer stand far above common knowledge, a situation that has been contrasted with the high‐water mark of scientific infallibility, the post‐war era: see H Collins and R Evans Rethinking Expertise (Chicago: University of Chicago Press, 2007).

(102) Ward ‘Observers, Advisors, or Authorities?’ 105.

(103) There is no requirement at common law that medical evidence be adduced in relation to a plea of insanity: Rex v North (1937) 1 Criminal Law Journal 84. Given that a formalized insanity doctrine has existed since 1843, and expert medical evidence had been introduced in court even earlier, it is notable that the statutory evidence requirement comes very late on in the development of the law on evidence and procedure that governs insanity claims.

(104) Section 1(1) of the Act requires ‘written or oral evidence of two or more registered medical practitioners at least one of whom is duly certified’ before the jury may deliver a special verdict. This requirement had been suggested in the Butler Report (para 18.37). Commentators have offered different explanations for its inclusion in Section 1(1) in the 1991 Act. These explanations include that it was introduced in order to promote consistency between the criminal law and the civil law (P Fennell ‘The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991’ (1992) 55 Modern Law Review 547, 549); to alleviate judicial anxiety about ‘the corrupt and/or unreliable medical expert’ (T H Jones ‘Insanity, Automatism and the Burden of Proof on the Accused’ (1995) 111 Law Quarterly Review 475, 510); or to satisfy the European Convention on Human Rights (E Baker ‘Human Rights, M'Naghten and the 1991 Act’ [1994] Criminal Law Review 84, 86). Parliamentary discussion at the time the 1991 Act was introduced sheds little light on the legislative motivation for the evidence provision. Discussion of the Bill indicates that the provision seemed to be uncontroversial. The private member who proposed the Bill stated that Section 1 was an ‘important’ component of the Bill, which gave ‘statutory backing to the M'Naghten Rules’ (HC Deb 19 April 1991, vol 186, col 727). Given that the Bill left the substantive insanity doctrine unaltered, and the fact that the M'Naghten Rules do not require expert medical evidence, it is hard to see how this is the case.

(105) R D Mackay ‘Mentally Abnormal Offenders: Disposal and Criminal Responsibility Issues’ in M McConville and G Wilson (eds) The Handbook of the Criminal Justice Process (Oxford: OUP, 2002) 464. It has also been suggested that expert evidence plays a role in filtering out spurious claims to exculpation based on automatism. As several commentators have pointed out, the cases that form the mainstay of automatism litigation are those in which the defendant performs apparently purposeful criminal actions (I D Elliott, ‘Automatism and Trial by Jury’ (1967–1968) 6 Melbourne University Law Review 53, 53; R D Mackay Mental Condition Defences in the Criminal Law (Oxford: Clarendon Press, 1995) 68; Walker Crime and Insanity in England (Vol 1) 165). A defendant's ability to perform complex and perhaps violent actions either involuntarily or unconsciously may be greeted with disbelief (R Cartwright ‘Sleepwalking Violence: A Sleep Disorder, a Legal Dilemma and a Psychological Challenge’ (2004) 161 American Journal of Psychiatry 1149, 1149). The evidence given by medical, psychiatric and psychological experts about the cause of a state of automatism (such as diabetes in Quick or dissociation in Burgess) or, perhaps whether a particular defendant suffered a ‘total loss of self‐control’, would seem to provide support for the plausibility of a claim to automatism.

(106) Bratty, 413. Similarly, in Stripp, the Court concluded that the appellant's evidence that he had hit his head and suffered concussion was, in the absence of medical evidence, insufficient to provide a foundation for automatism: R v Stripp (1979) 69 Cr App R 318, 323.

(107) See Chard (1971) 56 Cr App R 268; Turner [1975] QB 834; and Pinfold and Mackenney [2004] 2 Cr App R 5 respectively. For discussion, see I Dennis, The Law of Evidence 4th edn (London: Sweet and Maxwell, 2010) 887–93. In relation to proof of mental incapacity in particular, see A Colman and R D Mackay ‘Excluding Expert Evidence: A Tale of Ordinary Folk and Common Experience’ [1991] Criminal Law Review 800 and R D Mackay and A Colman ‘Equivocal Rulings on Expert Psychological and Psychiatric Evidence: Turning a Muddle into a Nonsense’ [1996] Criminal Law Review 88.

(108) See Hill v Baxter [1958] 1 QB 277, 285. Another illustration of this rationale is provided by the decision of the Court in Smith where the Court of Appeal stated that ‘this type of automatism—sleepwalking—call it what you like, is not something, we think, which is within the realm of the ordinary juryman's experience’: R v Smith [1979] 1 WLR 1445, 1451.

(109) At least in theory, the expert is not able to give evidence on the ‘ultimate issue’, which is for the jury to decide. In Holmes ([1953] 2 All ER 324), the Court of Criminal Appeal approved a cross‐examination in which the psychiatric expert was asked if the defendant knew the nature of his act and that it was wrong. It has been recognized that the ‘ultimate issue’ rule has been applied unevenly, and there is some suggestion that it is being abandoned by courts: see Dennis The Law of Evidence 903–7. See also B J Mitchell ‘Putting Diminished Responsibility Law into Practice: A Forensic Psychiatric Perspective’ (1997) 8(3) Journal of Forensic Psychiatry 620 regarding expert evidence of diminished responsibility.

(110) Bratty, 414.

(111) I discuss this issue of differences of kind versus differences of degree in the context of a discussion of diminished responsibility: see Chapter 9.

(112) R v Harrison‐Owen [1951] 2 All ER 726.

(113) R v Crown Court at Maidstone ex parte London Borough of Harrow [2000] 1 Cr App R 117 at 123; see also S Dell ‘Wanted: An Insanity Defence that Can be Used’ [1983] Criminal Law Review 431, 431. The M'Naghten rules included the requirement that the issue of insanity go to the jury, and thus, like the reverse burden of proof, its durability may be explained as a consequence of the ‘quasi‐legislative status’ of the Rules: see Dennis The Law of Evidence 459. The Butler Committee recommended that the prosecution be allowed to accept a plea (Butler Report para 18.50). However, this recommendation has not been implemented. This feature of the M'Naghten Rules has put the practical advantages of a plea option, canvassed by the Court in Cox in relation to the defence of diminished responsibility, beyond the reach of the insanity doctrine. See R v Cox [1968] 1 WLR 308 and Chapter 9.

(114) In empirical studies of the operation of the insanity doctrine since the passage of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, several commentators have observed that, in a number of trials, juries were directed to return a special verdict or presented with a situation where all parties, and all expert evidence, supported the special verdict (R D Mackay, B J Mitchell and L Howe ‘Yet More Facts about the Insanity Defence’ [2006] Criminal Law Review 399, 404; R D Mackay and G Kearns ‘More Fact(s) About the Insanity Defence’ [1999] Criminal Law Review 714, 721). Some of this research concludes that expert medical evidence is of primary importance in relation to the outcome of an insanity trial: Mackay and Kearns ‘More Fact(s) About the Insanity Defence’ 721. It appears that, in certain instances, the requirement that the issue of insanity go to the jury may be a mere formality. Of course, in other instances, the existence of the requirement that the defence go to the jury means that there is potential for an independent determination on the question of the defendant's insanity. Nonetheless, this research suggests that caution is needed in assessing the requirement that the insanity doctrine go to the jury so as not to overstate its significance.

(115) T Ward ‘English Law's Epistemology of Expert Testimony’ (2006) 33(4) Journal of Law and Society 572, 585.

(116) See Giddens Modernity and Self‐Identity 138, and, more generally, ch. 4.

(117) See A Duff et al The Trial on Trial (Vol 3) 50–3.

(118) As H L Ho puts it, presumptions deal with the question ‘what to do’, rather than ‘what (it is reasonable for one) to believe’: see H L Ho A Philosophy of Evidence Law (Oxford: OUP, 2008) 97. But, it has been suggested that a presumption indicates that there are good grounds for believing a particular claim, although these grounds are somewhat incomplete. See R Hall ‘Presuming’ 11(42) The Philosophical Quarterly (1961) 10.

(119) Moreover, whether the defendant is making a claim of automatism or one of insanity is a question of law for the judge (see Bratty 412 per Lord Denning), which can be interpreted as another circumscribing aspect of these presumptions.

(120) Extracted in R Moran Knowing Right from Wrong: The Insanity Defense of Daniel McNaughtan (New York: The Free Press, 1981) 173. See also OBP, Charles O'Donnell, 20 November 1876 (t18761120–27).

(121) Bratty 413. ‘Normally’, the presumption of mental capacity is sufficient to prove that the defendant acted ‘consciously and voluntarily’: Bratty 407 per Viscount Kilmuir.

(122) Bratty 413 per Lord Denning.

(123) Bratty 413; R v Budd [1962] Crim LR 49; Burgess 96 per Lord Lane. A ‘proper foundation’ has been interpreted ‘to come very close to saying that there must be a prima facie case raised by the defence’: R v Stripp (1979) 69 Cr App R 318 at 322 per Lord Justice Ormrod.

(124) Watmore v Jenkins [1962] 2 QB 572 586; Broome v Perkins (1987) 85 Cr App R 321 at 331; R v Burgess 96 per Lord Lane. If the condition amounts to (non‐insane) automatism, the doctrine will be left with the jury. If the condition amounts to insanity (on the basis that it arises from a ‘disease of the mind’), the doctrine of insanity will be left with the jury. Thus, if, as was the case in Bratty, the evidence that the defendant was acting in an automatistic state was held to be consistent only with an insanity doctrine because it was caused by a ‘disease of the mind’, the judge need not leave automatism to the jury. As I D Elliot argues, this means that there is a possibility that the jury will find that the elements of M'Naghten insanity have not been proved on the balance of probabilities and convict the defendant, although they are not satisfied that the defendant acted consciously (Elliott ‘Automatism and Trial by Jury’ 64–5). As Elliot concludes, a defendant who is convicted in these circumstances has been denied the protection of the decision in Woolmington as the prosecution has been absolved of its obligation to prove the elements of the offence (‘Automatism and Trial by Jury’ 65–6; see also P Fairall ‘Automatism’ (1981) 5 Criminal Law Journal 335, 339).

(125) Rex v Smith (1910) 6 Cr App R 19. It is possible that the genesis of this original common law position lay in the medieval court practice of acquitting insane defendants, referred to above. Even after this practice ended, and insane defendants had to rely on the royal prerogative to escape punishment, the fact that the insanity doctrine resulted in an acquittal may have meant it was only in the interests of the defence to raise the issue, ensuring the procedural rule about raising insanity remained in place.

(126) Bratty 411–12. In addition, if the defence raises diminished responsibility, the prosecution is entitled to raise evidence tending to prove insanity (Criminal Procedure (Insanity) Act 1964, s 6, overruling R v Price [1963] 2 QB 1). If the prosecution raises insanity, it bears the burden of proving insanity beyond all reasonable doubt (Podola [1960] 1 QB 325; Grant [1960] Crim LR 424).

(127) In that case, Lord Denning cited with approval the decision of Kemp, in which Justice Devlin stated that judges are entitled to raise insanity of their own accord (R v Kemp [1957] 1 QB 399, cited in Bratty at 412).

(128) When the defence has raised automatism, the prosecution may counter with insanity so that, if the defendant suffers from a ‘disease of the mind’, he or she will not receive a complete acquittal but will be subject to the disposal options flowing from a special verdict: Bratty 411 per Lord Denning; Kemp, 408 per Justice Devlin. In this respect, automatism has a parallel with diminished responsibility, which, if raised by the defence, may be met with prosecution evidence of insanity: see Chapter 5 on automatism and Chapter 9 on diminished responsibility.

(129) A Duff et al The Trial on Trial (Vol 3) 50.

(130) This interpretation of the rule has been adopted by a number of commentators. See, for example, J Monahan ‘Abolish the Insanity Defense? Not Yet’ (1973) 26 Rutgers Law Review 719, 727; G Williams Textbook of Criminal Law (London: Stevens, 1978) 596.

(131) A Duff et al The Trial on Trial (Vol 3) 47.

(132) R v Soderman (1935) AC 462; R v Carr‐Briant [1943] KB 607.

(133) The issue of the burden and standard of proof was not addressed in Harrison‐Owen, Charlson, or Kemp and specifically reserved in Hill v Baxter (285). In Hill v Baxter, Justice Devlin stated, obiter, that ‘as automatism is akin to insanity in law there would be great practical advantage if the burden of proof was the same in both cases’ (285). Despite Justice Devlin's comment, when determined, the burden and standard of proof in insanity and automatism differ.

(134) Bratty 408 per Viscount Kilmuir; see also R v Burns (1973) 58 Cr App R 364 at 374. In refusing to follow the earlier suggestion in Hill v Baxter and impose a reverse burden for automatism, the Court in Bratty was mindful of the principle of Woolmington, ‘that it is for the prosecution to prove every element of the offence charged’: 407 per Viscount Kilmuir; 416 per Lord Morris of Borth‐y‐Gest.

(135) R D Mackay argues that the burden of proof represents a ‘controlling factor’ in automatism, allowing the courts to distinguish between genuine and fraudulent cases (Mackay Mental Condition Defences 35).

(136) Woolmington v DPP 8.

(137) Woolmington v DPP 5.

(138) Jones ‘Insanity, Automatism’ 477. For a critical discussion of the reverse burden in insanity, see E Colvin ‘Exculpatory Doctrines in Criminal Law’ (1990) 10 Oxford Journal of Legal Studies 381; for an analysis of the ‘peculiar knowledge’ doctrine, see A Stumer The Presumption of Innocence (Oxford: Hart, 2010) 172–6.

(139) P W Ferguson ‘Reverse Burdens of Proof’ (2004) 22 Scots Law Times 133, 138.

(140) R v Lambert [2002] QB 1112, 1122; see also Hill v Baxter 282.

(141) K J M Smith Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence 1800–1957 (Oxford: Clarendon Press, 1998) 95.

(142) G P Fletcher ‘Two Kinds of Legal Rules: A Comparative Study of Burden‐of‐Persuasion Practices in Criminal Cases’ (1968) 77 Yale Law Journal 880, 902. Fletcher argues that the reverse burden reflects the criminal law's debt to ‘private litigation’, to use his term for the civil (as opposed to criminal) law (Fletcher ‘Two Kinds of Legal Rules’ 917; see also Jones ‘Insanity, Automatism’ 478). According to Fletcher, reflecting the norms of private litigation, criminal law conceptualized the prosecution and defence as two equal parties, each with ‘duties to persuade’ on the issues in the case (‘Two Kinds of Legal Rules’ 899). Thus, the burden of proof fell on the defence for denials of the relevant facts (as opposed to affirmative statements of the facts): a plea of insanity was such a denial (‘Two Kinds of Legal Rules’ 899).

(143) Jones ‘Insanity, Automatism’ 477–8. For this reason, Jones suggests that the M'Naghten judges may have been applying to insanity what they understood as a general rule (‘Insanity, Automatism’ 477).

(144) Fletcher ‘Two Kinds of Legal Rules’ 903. As Ian Dennis suggests, in altering the law, the Court in Woolmington may have been unwilling to challenge M'Naghten because of its ‘quasi‐legislative status’ (Dennis The Law of Evidence 459; see also Cairns Advocacy and the Making of the Adversarial Criminal Trial 178).

(145) Fletcher ‘Two Kinds of Legal Rules’ 890.

(146) The ongoing significance of a defendant's conduct over time may have blunted both pragmatic and normative arguments that the prosecution should bear the burden of disproving a defendant's insanity (beyond all reasonable doubt). For instance, Morse's claim that ‘no substantial injustice to the defendant will result from placing the persuasion burden on the defendant because, when legal insanity is truly present under a narrow test of insanity, most cases will be quite clear’ (S J Morse ‘Excusing the Crazy: The Insanity Defence Reconsidered’ (1985) 58 Southern California Law Review 777, 825), is based on the premise that abnormality is evident or obvious. See A Loughnan, ‘“Manifest Madness”: Towards A New Approach to the Insanity Defence’ (2007) 70(3) Modern Law Review 379. See also Chapter 3.

(147) Because a verdict of ‘not guilty’ on the basis of automatism results in an ordinary acquittal, which cannot be distinguished from other ‘not guilty’ verdicts, there is no empirical data available about the use of the automatism defence in England and Wales. In the absence of statistical data, there is, however, some suggestion that automatism is not a popular defence (see, eg Mackay Mental Condition Defences 67). Why is the automatism defence unpopular? As Mackay notes, the explanation lies in part in the restricted parameters of the defence which means that only a select group of defendants fall within its bounds (Mental Condition Defences 67). In addition, it is possible that those defendants who are eligible to raise automatism are unwilling to do so because, by putting their mental state in issue, they may face a special verdict if the insanity doctrine is raised by the prosecution. This is perhaps a weaker argument since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 introduced a range of disposal options to follow a special verdict. Another possible explanation for the unpopularity of automatism is uncertainty about how a jury would receive an automatism plea. It is possible that claims by defendants that they are engaged in purposeful, complex, and violent behaviour while in automatistic states are regarded as implausible; see Cartwright ‘Sleepwalking Violence’ 1149). Arguably, the strength of this explanation for the unpopularity of automatism would vary according to the cause of a particular defendant's automatistic actions (and perhaps also the nature of the offence with which he or she is charged).

(148) See, for example, Jones ‘Insanity, Automatism’ 515; Colvin ‘Exculpatory Defences in Criminal Law’ 392; Mackay Mental Condition Defences 73, 90–2.

(149) Fletcher ‘Two Kinds of Legal Rules’ 920. According to Walker, the special verdict pays lip‐service to the idea that the insane defendant is innocent but avoids the danger of treating him or her as such: see Crime and Insanity in England (Vol 1) 81.

(150) Robinson suggests that it may be because of this ‘potential for misapprehension’ that the insanity doctrine takes the form of a special verdict (‘not guilty by reason of insanity’) and concludes that more ‘excuse defences’ should take this form: see P Robinson ‘Criminal Law Defences: A Systematic Analysis’ [1982] 82(2) Columbia Law Review 199, 247; see also G Williams ‘The Theory of Excuses’ [1982] Criminal Law Review 732, 741. As part of his wider analysis of ‘disability excuses’, Robinson argues that the ‘disability requirement’ of the defence, whereby the defendant must have a particular abnormality (insanity) at the time of the offence, ‘serves to distinguish the defendant from the general population’ (‘Criminal Law Defences’ 226; see also P Robinson Structure and Function in Criminal Law (Oxford: Clarendon Press, 1997) 84). Distinguishing the defendant from the general population is essential because, according to Robinson, ‘excuses have a great potential for undercutting the condemnation and general deterrence of the harmful conduct’ which is the subject of the offence (‘Criminal Law Defences’ 246). For Robinson, because an excuse is based on ‘subjective criteria’ like mental illness, and not on approval or tolerance of the act, the reason for an acquittal will only be clear to those who are aware of what evidence was adduced at trial (‘Criminal Law Defences’ 246).

(151) Walker Crime and Insanity in England (Vol 1) 175. Other commentators have suggested that an acquittal with certain conditions would be appropriate for defendants, such as diabetics, seeking to rely on automatism (G Maher, J Pearson and B Frier ‘Diabetes Mellitus and Criminal Responsibility’ (1984) 24(2) Medicine, Science and Law 95, 100). The legal basis for such conditional acquittals is not clear (R D Mackay ‘The Automatism Defence—What Price Rejection?’ (1983) 34(1) Northern Ireland Legal Quarterly 81, 85).

(152) See R D Mackay ‘Craziness and Codification—Revising the Automatism and Insanity Defences’ in I Dennis (ed) Criminal Law and Justice (London: Sweet and Maxwell, 1987) 116–18.

(153) The Butler Committee advocated this approach. In order to extend the special verdict to cases which would otherwise receive a complete acquittal, the Butler Committee proposed retaining the (non‐insane) automatism defence, but redefining the boundary between insane and non‐insane automatism (paras 18.20, 18.25). The Committee proposed that (non‐insane) automatism be restricted to ‘transient states not related to other forms of mental disorder arising solely as a consequence of’ the consumption of drugs or alcohol or physical injury (para 18.23). The Committee proposed that all other cases of what was regarded as (non‐insane) automatism would fall within the bounds of the special verdict, which the Committee relabelled as ‘not guilty on evidence of mental disorder’ (para 18.22). This proposal would have ensured that most defendants who commit offences while in states of automatism would be formally acquitted but subject to a disposal order by the court.

(154) Criminal Procedure (Insanity) Act 1964, s 5.

(155) With the passage of the 1991 Act, Crown courts could issue: a hospital admission order; a guardianship order; a supervision order; or an order for absolute discharge (s 5(2)(b)(iii)).

(156) Section 5(3)) (that is, murder, to which a mandatory penalty of life applies)—in that case, the only option open to the court was a hospital order,

(157) Domestic Violence, Crime and Victims Act 2004, s 24; see also Mackay, Mitchell and Howe ‘Yet More Facts’ 408. The most recent empirical research available covers the operation of the insanity doctrine between 1997 and 2001, thus encompassing the reforms introduced in the 1991 Act (but not the 2004 Act). According to a study conducted by Mackay, Mitchell and Howe, just over half the total number of special verdicts resulted in community‐based orders, such as hospital admission orders and supervision and treatment orders (Mackay, Mitchell and Howe ‘Yet More Facts’ 407).

(158) E Griew ‘Let's Implement Butler on Mental Disorder and Crime!’ [1984] Current Legal Problems 47, 49–50.

(159) See P J Sutherland and C A Gearty ‘Insanity and the European Court of Human Rights’ [1991] Criminal Law Review 418 for discussion.

(160) There is no statistical information about the number of defendants who raise the insanity doctrine, but the number of defendants who raise it successfully is low. A recent study, found 116 special verdicts in the 10 years to 2001 (Mackay, Mitchell and Howe ‘Yet More Facts’ 400). In the first five years after the passage of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, there were a total of 44 special verdicts returned (Mackay and Kearns ‘More Fact(s) About the Insanity Defence’ 716). As there were just 52 special verdicts returned between 1975 and 1989 (Mackay Mental Condition Defences 102), these figures indicate that findings of ‘not guilty by reason of insanity’ have increased since the passage of the 1991 Act.

(161) Mackay, Mitchell and Howe ‘Yet More Facts’ 400. Elsewhere, Mackay suggests that the 1991 Act represents a shift towards restoration of the defence as one of practical importance (Mental Condition Defences 73).

(162) See, for example, Dell ‘Wanted’ 434. It is widely acknowledged that the majority of mentally disordered offenders are processed through the ordinary procedures of guilty pleas, trials, and plea bargains (see, for example, Griew ‘Let's Implement Butler’ 48).

(163) Mackay Mental Condition Defences 181; Walker Crime and Insanity in England (Vol 1) 160. In relation to diminished responsibility, some commentators have suggested that defendants choose to plead guilty to manslaughter rather than risk the stigma of a special verdict and the indefinite detention order (Butler Report para 18.9; Dell ‘Wanted’ 433). If defendants who might raise the insanity doctrine are instead relying on other defences, they are losing the right to a trial (through unfitness to plead provisions) or receiving a conviction rather than an acquittal (in the case of diminished responsibility).

(164) The contemporary insanity doctrine is widely recognized as overly narrow (Butler Report para 18.7; K W M Fulford ‘Value, Action, Mental Illness and the Law’ in S Shute, J Gardner and J Horder (eds) Action and Value in the Criminal Law (Oxford: Clarendon Press, 1993) 300; Griew ‘Let's Implement Butler’ 48). With its restricted base in cognitive impairment, the M'Naghten insanity doctrine excludes many defendants who, although they do not come within the Rules, are nevertheless so disordered that they should not be held responsible for their actions (Butler Report para 18.5; Dell ‘Wanted’ 433).

(165) See, for example, T Ward ‘A Terrible Responsibility: Murder and the Insanity Defence in England 1908–1939’ (2002) 25 International Journal of Law and Psychiatry 361, 361. The practical operation of the insanity doctrine has been depicted as a ‘benevolent conspiracy between psychiatrists and the court’ that widens the scope of the Rules (Williams Textbook of Criminal Law 599). Empirical research suggests that, in practice, the M'Naghten insanity test seems to have a wider reach than a strict reading of M'Naghten would suggest. In particular, the ‘wrongness’ limb of the M'Naghten test is more important in practice than its technical construction would suggest. Mackay's empirical study found that ‘wrongness’ is the limb most commonly used to secure a special verdict (R D Mackay ‘Fact and Fiction About the Insanity Defence’ [1990] Criminal Law Review 247, 250). Mackay and Gerry Kearns argue that the ‘wrongness’ limb of the M'Naghten Rules is frequently used by psychiatrists in a broad, common sense way, to cover both legal and moral wrong, in a way that effectively expands the scope of the M'Naghten Rules (Mackay and Kearns ‘More Fact(s) About the Insanity Defence’ 722–3).

(166) See 〈http://www.justice.gov.uk/lawcommission/areas/insanity.htm〉 (last accessed 9 September 2011), and 10th Programme of Law Reform, Law Commission No 311 (London, 2008), available at 〈http://www.justice.gov.uk/lawcommission/publications/programmes‐law‐reform.htm〉 (last accessed 9 September 2011).