An insanity plea may be a crazy option

By Jonathan Goldberg, February 3, 2011
Congresswoman Gabrielle Giffords is rushed to hospital after being shot. The gunman is reported to be considering a plea of  insanity

Congresswoman Gabrielle Giffords is rushed to hospital after being shot. The gunman is reported to be considering a plea of insanity

Anthony from Oxford writes: I have been following with keen interest reports about the recent shooting in Arizona of the Jewish Congresswoman, Gabrielle Giffords. She survived the attack in which many other bystanders were killed by a lone gunman. I have read that he is now reportedly planning an insanity defence at trial. What are the limits of such a defence, and would it be open to him equally in the UK?

Anthony, it happens that I was recently in America and witnessed myself the enormous shock and outrage caused by these crimes. The story still features prominently in almost every news bulletin. Gabrielle Giffords was the first Jewish woman ever elected to Congress and despite being born and raised in the somewhat remote state of Arizona, she has proudly proclaimed both her Jewish identity and her support of Israel at every possible opportunity. Many Americans are asking how there can possibly be any defence, when the gunman had carefully stalked her beforehand and had premeditated his crime, according to documents found in his home, and was captured red-handed when on the verge of reloading his pistol to kill others.

The origins of the defence of insanity, in fact, arise from the English common law, and have broadly been adopted in similar terms in the USA and also numerous other common law jurisdictions. Their history is interesting. In 1843 a deranged assassin called Daniel M'Naghten attempted to shoot dead the Prime Minister Robert Peel. He missed Peel, but killed his private secretary. Unusually the House of Lords requested a panel of judges presided over by the Lord Chief Justice to codify guidance for juries whenever a defendant raised the plea of insanity in future. The result has become known as "The M'Naghten Rules".

They apply to any crime, not only to murder. In essence, a defendant who can prove on the balance of probabilities that at the time of committing his crime, he laboured under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing wrong, is entitled to a verdict of "not guilty by reason of insanity". In this context, not knowing his act was wrong means legally wrong, not morally wrong.

To take examples from real cases, the killer who strangled his girlfriend believing her to be a poisonous snake, or another who knifed his friend to death believing he was slicing a loaf of bread, would be entitled to the benefit of this defence. In effect of course, it boils down to a matter of public policy by which the criminal law acknowledges that it would be inhumane to punish and stigmatise as criminal someone who is genuinely incapable of forming the criminal intent necessary to commit a crime, by reason of severe mental illness. In the ancient legal words "…they are without sense and reason and can no more commit a felony than a brute animal. "

However it must be understood that this insanity plea is not easy to prove before a jury either in England or America, and that statistically it rarely succeeds. Even when it does succeed, it does not of course mean an acquittal in the normal sense of leaving the courtroom without a stain on one's character. In a murder case for instance, the court will make an order committing the accused to a mental hospital without restriction of time. Paradoxically in the UK, a murderer who is convicted in the normal way may face on average something like 18 years actual incarceration, whereas one who is technically acquitted by reason of insanity is likely to face confinement for life in a mental institution such as Broadmoor.

In America, however, the present facts will almost certainly attract the death penalty, and an insanity plea can therefore be expected at trial because it is the only defence realistically open to this man. In 1982 a man called John Hinckley who had unsuccessfully attempted to assassinate President Ronald Reagan, succeeded in running this defence. There has subsequently been a public backlash which would make it much harder to succeed in America today, I think. On the other hand, the latest news is that this trial is to be moved from Arizona to San Diego, by reason of the inflamed feelings in Arizona. The defence team must be rubbing their hands in glee. A plea of insanity which would probably stand no chance in Arizona, might even now succeed before the notoriously relaxed and liberal jurors of southern California.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC, of Ely Place Chambers, is a leading London barrister

Last updated: 2:10pm, February 3 2011