Mental Abnormality

MENTAL ABNORMALITY MENTAL ABNORMALITY vis‑vis CRIMINAL LIABILITY OF AN ACCUSED BY Major Hafiz Zafar Iqbal, Judge Advocate, Judge Advocate‑General's Department, General Headquarters 1. INTRODUCTION: Criminal liability of an accused person may be determined only if the act contemplated by him falls within the ambit of a 'crime'; and an act cannot be regarded as an offence or crime unless it meets the following requirements, as propounded by the American Criminal Law Scholar Jerome Hall:‑‑ (a) The accused must have done an act. (b) The act must be a wrongful or an illegal one. (c) The act must be harmful. (d) The act must cause or produce the desired results. (e) The act was committed with a guilty intention. (f) The criminal act must be accompanied by an equal criminal mind. (g) The law has prescribed punishment for the act. If any of the above requirements are not met' with, the act will remain short of a crime and no criminal liability can be attached to the accused person. The basic principle of Criminal law, however, is that no criminal liability is attached to a person unless he has done a wrongful act with criminal intent. Thus, the actus reus and mens rea will determine the criminal liability of an accused person. Failure to prove actus reus and mens rea would obliviates the criminal liability of the accused. Since mental abnormality, provided it be a total abnormality or complete unconsciousness, negatives mens rea, it .is considered and accepted as an important legal defence in criminal law. But mental abnormality which renders the accused incapable of committing a crime and obliviates his criminal liability, is distinct from ordinary mental disorder or temporary obsession. Mental abnormality today, in legal parlance, may be visualized in phrases like: (a) Insanity. (b) Irresistible impulse. (c) Diminished responsibility 2. INSANITY: Insanity has been recognized as an important defence in criminal law. The mad man is exempted from criminal liability on the ground that his acts are unintentional and involuntary, he being unconscious of his conduct when doing the act. The insanity, which renders no criminal liability to the accused, is such an insanity which affects not only the cognitive faculties of the mind which guide our actions but also our emotions which promote our actions and the will by which our actions are performed. It is only the total unsoundness of mind which materially impairs the cognitive faculties of the mind that can form a group of exemption from criminal responsibility, the nature and extent of the unsoundness of mind required being such as would make the offender incapable of knowing the nature of the act or that he is doing what is wrong or contrary to law. It is this rule which is the basis of section 84 of the P.P.C., which reads:‑‑ "Noting is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is doing which is either wrong or contrary to law. " The section is based on the maxim "furisus furor solum punitar" i.e., a mad man is punished by his madness. Although the defence of insanity has been recognised in all. societies since ages but in its present form, the insanity defence was formulated by the British House of Lords, which is also England's highest Court, following the case of Danial M'Naghton [1] who was obsessed by the idea that the British Prime Minister, Sir Robert Peel, wanted to destroy the liberties of English subjects. As the story goes, in 1829 when Sir Robert was Home Secretary, with responsibility for security and internal affairs, he established a police force, and during 1830s and 1840s, he used the police to suppress public dissent. M'Naghten joined a campaign against Sir Robert. As a consequence of these activities, he became convinced that Sir Robert was spying on and persecuting him. When M'Naghten could no longer stand the pressure of his obsession, he travelled to London and loitered around 10 Downing Street, the British Prime Minister's Official residence. On Friday, January 20, 1843 he shot into the back of Edward Drummond, who was the Prime Minister's Private Secretary and whom he thought was Sir Robert, Edward Drummond died of the gunshot wounds after a few days but M'Naghten was acquitted by reason of insanity. The House, of Lords, however, formulated the now famous M;Naghten rules, which may be, summarised as under:‑‑ (a) Every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his acts, until the contrary is proved. (b) To establish a defence of insanity, the accused must prove that, at the time, of committing the act, he was labouring 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 what was wrong. The test of insanity/essentials of the defence of insanity.‑‑In a case where, the accused claims that he committed the alleged offence while he was suffering from mental abnormality, he must prove three things: (a) Disease of the mind.‑‑The accused must prove that he was suffering from a disease of the mind when he did the act complained of: The disuse must be of the mind., it need not be of the brain. Transitory malfunctioning of mind due to some external . factor such as violence, drugs including anaesthetics or alcohol cannot be said to be due to disease and does not constitute a disease of mind. However, it is not always easy to draw a distinction between mental impairment due to disease or without disease. In Burgess case wherein the accused contended. that he had been sleepwalking when he wounded the woman,, the Queen's Bench Court of appeal held that on any view of medical evidence the accused had been suffering from disease of the mind at the material time and acquitted him. (b) Defect of reason.‑‑The accused must prove that he was suffering from a defect of reason due to disease of mind. A defect of reason is more than a memory confusion or absentmindedness, a deprivation of reasoning power is required. In Clarke v. R, wherein the accused took the stance that she had no intention to steal but had acted in a moment of absentmindedness caused by a diabetic depression due to sugar deficiency, the Court of Appeal while accepting her appeal held that her defence was simply one of lack of mens rea and not a defence of insanity, since temporary absentmindedness due to disease was not a defect of reason because of the disease. The defect of reason meant the deprivation of reasoning power and it did not cover people who retain their reasoning power but in moments of confusion or absent‑mindedness fail to use it fully. (c) Ignorance of the nature and quality of act.‑‑The accused must prove that he did not know‑ the nature and qualify of his act or, if he did know this, he did not know that he was doing a wrongful or illegal act, or what was contrary to law. It was held in Sullivan v. R. that an insane person who was acting in the state of automatism (a kind of unconscious involuntary action, a situation where an, act is beyond the control of a person's mind) would have neither known the nature and quality of his act nor had control over his action. In the same way, if an insane person squeezes someone's throat, thinking that he is squeezing an orange, he does not know the nature and quality of his act, but if he kills a boy, mistakenly believing the victim a girl, he knows the nature and quality of his act since his mistake is not material. 3. IRRESISTIBLE IMPULSE: The test of insanity, based upon the M'Naghten rules, may in short, be reduced to the following formula: As a result of mental illness, the accused either‑‑ (a) did not know the nature and quality of his act, or (b) did not know that the act was wrong. In either case there can be no crime. But there have been instances in which the accused contended that, although he knew perfectly well what he was doing and understood fully that what he was doing was wrong, somehow he lost control over his action, i.e. he lost the power to choose between right and wrong. Some process in his mind compelled him to do what he did. Such loss of self‑control has been called an 'irresistible impulse. To deal with that kind of a situation some American Courts in the second half of the 19th century added another component to the M 'Naghten rules: if as a result of mental illness, the accused was unable to control his action, he must be acquitted. But irresistible impulse which leads to acquittal is such an impulse which remained irresistible despite having been resisted, Thus if the impulse was irresistible the accused is entitled to acquittal if he resisted it because neither the act remained his own nor a voluntary one. Contrary to this if the impulse was resistible, the fact that it proceeded from a disease is no excuse at all. Likewise, if the impulse was irresistible but the accused also did not resist it which if resisted might have been resisted, no exculpation may be granted to the accused. For example:‑‑If a man's nerves were so irritated by a baby's crying that he immediately killed, his act would be murder. A similar decision was also made by the Bombay High Court where the accused was suffering from high fever and, annoyed by their crying, killed his children. It would also be not less than murder if the same irritation and the corresponding desire were produced by some internal disease. The great object of criminal law is to induce people to control their impulses and there is no reason why they should not control insane as well as sane impulses, if they can do so. The test of the defence of irresistible impulse.‑‑The proof that an impulse was irresistible or not depends upon the circumstances of each particular case. The most common cases are those of women who without motive or concealment kill their children after recovery from child‑bed. In this connection reference may be made to the case of Wazir v. R.[2], where the accused was showing some abnormality of conduct ever since the shock of his wife's death as a result of delivery of a child. He got up in the night and killed his two children which were no burden on him. Such conduct of the accused could only be explained by the hypothesis that he had gone mad and was not conscious of his crime of killing his children. In Hayes's case [3], the test for irresistible impulse has been laid down by Bramwell, J., in his advice to the jury in the following words:‑‑"It has been urged that you should acquit the prisoner on the ground that, it being impossible to assign any reason for the perpetration of the offence, he must have been acting under what is called a powerful' and irresistible influence, or homicidal tendency, but the circumstances of an act being apparently motiveless, is not a ground from which you can safely infer the existence of such an influence. Motives exist unknown and innumerable, which might prompt the act. A morbid and restless, but resistible, thirst for blood would itself be a motive urging to such a deed for its own belief. But if an influence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it. There are three powerful restraints existing, all tending to the assistance of the person who is suffering under such an influence, the restraint of religion, the restraint of conscience and the restraint of law. But if the influence itself be held a legal excuse, rendering the crime dispunishable, you at once withdraw a most powerful restraint the forbidding and punishing its perpetration. We must return, therefore, to the simple question you have to determine: did the prisoner know the nature of the act he was doing, and did he know that he was doing what was wrong". It may also be mentioned that other forms of impulsive insanity like morbid mania, Kleptomania, and Erotomania are only recognised by medico legal writers. The criminal laws of U.S.A., England and Pakistan also do not recognise any of these manias as a legal defence. However, in State v. Arshad Javaid [4] where the accused was sentenced to death for an offence under section 295‑C of the P.P.C., Mr. Justice Tassaduq Hussain Jilani of the Lahore High Court recognised the mania and hypomania (a State where a person has feelings of elation, euphoria, grandiosity relating himself to God, pressure of. speech, increased energy) as a defence and acquitted the accused, as he did not know the nature and quality of his act and that he was doing a wrongful act. Other notable cases in the legal history of Pakistan, wherein Courts at the apex recognised and laid down certain criteria for the recognition of the defence of mental abnormality are:‑‑ (a) Lal Khan v. Crown PLD 1952 Lah. 502. (b) Yousaf v. Crown PLD 1953 Lah. 213 (c) Muhammad Shafee v. State PLD 1962 SC 472 The criminal laws of Pakistan and England even do not recognise irresistible impulse as a valid defence, as has been held in Bazlur Rehman v. Emperor[5], R v. Holt[6] and R v. Kopsch[7]. The Courts rejected the defence of uncontrollable or irresistible impulse, and refused to extend the test of insanity as laid down in M Naghten's case so as to include uncontrollable impulse, because of the difficulty in distinguishing between an impulse which proves irresistible because of insanity and one which‑ is irresistible because of motives of greed, jealousy or revenge. It is apparently impossible to distinguish between an uncontrollable impulse and an uncontrolled one. 4. DIMINISHED RESPONSIBILITY: Although the English Law does not recognise 'irresistible impulse' as a complete defence, and M'Naghten Rules are still unaltered, it has incorporated a partial defence of 'diminished responsibility'. The concept of diminished responsibility has been adopted from Scots Law and introduced into English Law by section 2(l) of the Homicide Act, 1957 which provides: "Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind and substantially impaired his mental responsibility for his acts and omissions in‑doing or being a party to the killing." According to this section, the accused 'may rely on the defence although he knew that he was doing a wrongful act. The fact that the killing was pre‑meditated does not destroy a plea of diminished responsibility. Also it is the accused on whose shoulders the burden of proving the defence lies. However, there is one exception to this rule. Section 6 of the Criminal Procedure (Insanity) Act, 1964, provides that where, at a murder trial, the accused contends that he was insane under M'Naghten Rules, the prosecution may adduce or elicit evidence that the accused was suffering from diminished responsibility. Proof of diminished responsibility: There are three ingredients of the defence of diminished responsibility, which ought to be proved, to claim the defence: (a) The accused was suffering from 'abnormality of mind'. In the famous English case, R v. Byrne[8.], Lord Parker, C.J. said "Abnormality of mind" which has been contrasted with the M' Naghten rule "Defect of reason". means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It (abnormality of mind) appears to us to be wide enough to cover all aspects of mind's activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgment whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment". In view of the above definition of abnormality of mind, 'seriously impaired self‑control' though not relevant to the defence of insanity under M'Naghten Rules, is highly relevant to the question whether the accused was suffering from diminished responsibility. (b) The abnormality of mind must result from one of the causes, like arrested or retarded development of mind or any inherent cause or induced by disease or injury. Abnormality of mind due to hate, jealously, greed, revenge or intoxication is outside the scope of this defence. (c) The abnormality of mind must have substantially impaired the responsibility of the accused's mind for his acts and omission in doing or being a party to the killing. The defence of diminished responsibility, however, is distinguished from insanity defence. Insanity is a complete defence in most of the cases and may lead to acquittal; whereas, diminished responsibility is a mitigating factor and that too in murder cases where the liability may be reduced from murder to manslaughter. 5. MENTAL ABNORMALITY VIS‑A‑VIS CRIMINAL LIABILITY OF AN ACCUSED. In view of .the above, we may appreciate well that insanity, irresistible impulse and diminished responsibility may incur no criminal responsibility on an accused person. But this is not true in all the societies and under all the circumstances. In Pakistan, the accused is exempted from any criminal liability under section 84 of the P.P.C. The accused is protected under the section ibid not only when, on, account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law. However, the section limits non‑liability of the accused on the ground of insanity only in those cases in which the insanity affects only the cognitive faculties. The cases in which insanity affects only emotions and the will which subjects the offender to impulses (resistible or irresistible) while leaving the cognitive faculties unimpaired has been left outside its scope. The section does not apply merely because the accused's mind is partially deranged or that he is not enjoying good health and being short tempered and emotional, gets upset over petty matters. The plea of diminished responsibility, as recognised in England under the Homicide Act, 1957, is not available in Pakistan. That is why Manzoor Hussain Sial, J., in Abdul Haque v. State [9] had held that the concept of diminished liability in respect of offences relating to human body committed under grave and sudden provocation (a situation where a person is likely to lose self‑control and becomes unaware of his acts in certain cases) as such, in his view had not been recognized under section 300 of the P.P.C. (as amended by Criminal Law Amendment Act, 1997), as it contained no exception. However, the majority held that the plea of grave and sudden provocation on account of abusive language can be treated as mitigating ‑factor in awarding sentence under Tazir even if this plea is not available (in the amended law, as it now exists. Notwithstanding the omission to incorporate above Exception I of the repealed section 300 in the amended section 300 of the P.P.C., grave and sudden provocation remains a relevant factor for deciding the question of sentence under clause (b) of section 302 of the P.P.C. but it has no relevance under clause (a) thereof. Similarly, in Federation of Pakistan v. Gul Hasan[10], it was held that, in Qatl‑i‑Amd, Qisas will not be imposed in the cases when husband sees his wife in the act of Zina with another person and kills him, Zina being an offence the punishment for.which even otherwise under Islam is death by stoning. Contrary to the law in Pakistan, the laws in U.S.A. and England are more flexible. The laws of these countries through M Naghten Rules extend no criminal liability towards the accused provided he pleads total insanity or complete mental abnormality. The law in U.S.A. also protects the accused if he takes the defence of irresistible impulse. The Court, in Wazir v. R, accepted the defence of irresistible impulse. The accused, in this case, was showing abnormality of conduct ever since the death of his wife as a result of delivery of a child and murdered his two children. But the defence of 'irresistible impulse' was not accepted in Bazlur Rehman v. Emperor [11] by the English Court. In England, however, partial defence of irresistible impulse in the form of diminished responsibility is available to an accused, under section 2(1) of the Homicide Act, 1957. But non‑liability of the accused under the said Homicide Act only extends to the cases of murder, and diminished responsibility is taken as a mitigating factor only. The accused, thus, may be guilty of manslaughter instead of murder. The criminal law of Islam also attaches no criminal liability on an insane person since his act is not voluntary. It is, however, left on the discretion of the Court to award Tazir if the circumstances so require or permit. The provisions of Islamic laws, as applicable to Pakistan, and Chapter. XVI (sections 299 to 338) of the P.P.C. as amended vide Criminal Law Amendment Act, 1997 provide that no 'Hadd' or 'Qisas' shall be enforced if the accused is an insane person. For example: section 306 of the P.P.C provides that no Qatl‑i‑Amd shall be liable to Qisas if the offender is insane. Section 337‑M reads, inter alia, that hurt shall not be liable to Qisas if the offender is insane. Section 5 of Offence of Zina Ordinance, 1979 also lays down that Zina shall only be liable to Hadd if committed by person who, inter alia, is not insane. The provisions of the Islamic Laws, as applicable to Pakistan, though not specifically mentioned therein, indicate that the defence of irresistible impulse or diminished responsibility is acceptable as a mitigating factor. For example: under section 10(g) of Offences Against Property Ordinance, 1979, 'Hadd' may not be imposed when the offender committed theft under 'Iztirar' i.e., a situation in which a person is in apprehension of death due to extreme hunger or thirst; and has no choice except to resort to theft. Again, according to section 5 of the Offence of Zina Ordinance, 1979 punishment for the Offence of Zina if committed by 'Muhsan' is stoning to death; whereas if the offence is committed by a person who is 'not Muhsan', i.e., inter alia is not married, or is insane, is one hundred stripes. This mitigation in sentence for a person who is not Muhsan appears to be justified due to the fact that an unmarried (and even an insane) person is less likely to resist the temptation of satisfying his or her sexual lust as compared to a married person who had all the facilities permissible under the Islamic Law to satisfy his/her sexual urge with his/her spouse. 6. CONCLUSION To conclude with, mental abnormality affects criminal liability of an accused person with varying degrees depending upon the nature and severity of mental abnormality. Total mental abnormality or insanity is no doubt recognised as a valid defence in almost all the societies in their respective legal systems; but the defence of irresistible impulse or diminished responsibility, though recognised as a partial defence and a mitigating factor, is undergoing a transitional stage and reduces the culpability and criminal liability of an accused person to some extent. It is also an admitted fact that the defence of the three kinds of mental abnormality as discussed in preceding paragraphs is very rare but is being raised by the defence counsel and applied by the Courts. NOTES AND REFERENCES NOTES [1] M'Naghten's Case (1843) 8 ER 718 [2] Wazir v. R. (1948) 23 Lucknow 141 [3] Hayes's Case I. F. & F 666, [4] State v. Arshad Javaid 1995 MLD 667 [5] Bazlur‑Rehman v. Emperor AIR 1929 Cal. 1. [6] R v. Bayme (1960) 3 All ERI. [7] R v. Kopsch (1925) 19 Cr.APP. Rep. 50. [8] 6 ibid [9] PLD 1996 SC 1 (40). [10] PLD 1989 SC 633. [11] 5 ibid REFERENCES: (1) Ahmad Siddqui, Criminology, 1983 (2) Freda Adler, Criminology, 1995 (3) H. Jenner Wily and KR.S. Tall Worthy, Mental Abnormality and the Law, 1962 (4) Joseph F.Sheley, Exploring Crime, 1984, (5) Ratan Lal and Bhirajlal, The Law of Crimes, 1966. (6) Dr. S. Siddiq Husain: A Synopsis of Medical Jurisprudence, 1967, (7) Sue Titus Reid, Crime and Criminology, 1982 (8) Taylor: Medical Jurisprudence