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The McNaughton rules refer to the legal test for a defence of insanity. The McNaughton rules act as a legal safeguard preventing severely mentally unwell people from being unjustly punished by the criminal justice system. The McNaughton rules result from the case of Daniel McNaughton, who was found not guilty by reason of insanity after he shot and killed a person who he incorrectly believed to be the Prime Minister.

A person relying on a defence of insanity must show that:

• they had a defect of reason
• caused by a disease of the mind
• meaning that that the person did not know the nature and quality of their acts, or that they did not know that what there were doing was legally wrong.

If these criteria are found to be met by the court, then the defendant would be found not guilty. Psychiatric evidence can be important in assisting the court to come to these decisions.

The McNaughton rules have attracted criticism, including that physical conditions can sometimes impact the functioning of the mind, that psychiatrists often disagree on diseases of the mind and there is no standard way of resolving this, and that persons with defects of reasoning may not be acting as rational moral agents even if they know an act is legally wrong (such as a person who believes they have been given a command to kill by God).

Dr Emma McPhail

The Pritchard criteria are a means of assessing fitness to plead, and consider communication and cognition to ensure defendants with mental disorders are not subjected unfairly to criminal trials.

The Pritchard criteria were developed from a nineteenth century case (R v Pritchard (1836)) whereby the defendant, accused of bestiality, was deaf and mute. The criteria were set by judge Alderson B to determine if the defendant was fit to plead.

The Pritchard criteria have been reframed and expanded in subsequent cases. The accused will be found unfit to plead if they are not able: 

1. To comprehend the course of proceedings of the trial, so as to make a proper defence,
2. To understand the evidence involved in the case,
3. To instruct their legal representatives, or,
4. To challenge a juror to whom they may object.

If one or more of these criteria are not satisfied, a conventional trial should not proceed, and defendants are usually diverted from a criminal trial for treatment in psychiatric services. The decision can be made by a judge, on the basis of psychiatric assessment.

There have been some criticisms of the Pritchard criteria, mainly that the threshold for being unfit to plead is too high, and that there is no standardised way of assessing the criteria.

Assessment of Fitness to Plead is one of the most common requests made of Forensic Psychiatrists.

Anna Burns

As forensic psychiatrists we are used to assessing people charged with a range of offences. The Offences Against the Person Act dates back to 1861 and is very much common currency in Crown Courts throughout the country in the early 21st Century.

1861 saw the introduction of the Malicious Damage Act, which covers obstruction of the railway or trains. The most common cases involving this law in our experience have related to people standing on railway bridges and throwing items onto the railway. This most often occurs in moments of crisis, often relating to personality disorder but occasionally also to episodes of psychosis.

A recent case involved a prosecution under the Vagrancy Act of 1824. Much of the Act remains in force although some has been repealed. The Act was introduced following the end of the Napoleonic Wars in order

“to make further provision for the suppression of vagrancy, and for the punishment of idle and disorderly persons, rogues and vagabonds and incorrigible rogues”

The vast numbers of people returning from the Continent after the wars, both in uniform and civilians, led to a significant increase in homelessness in the years after the wars. The British Army and the Royal Navy cut their numbers dramatically once the old enemy had been defeated. This left former service personnel unemployed and, in the days before the welfare state, often destitute. Some of the repealed parts of the Act relate to

“every person pretending or professing to tell fortunes, or using any subtle craft, maeans or device, by palmistry or otherwise, to deceive…”

The repealed parts of the Act also prohibited unlicensed pedlars and prostitutes working on the street.

Although repealed in part over the years, the Act has also been extended by further legislation. The Vagrancy Act 1898 was initially seen as a means of limiting prostitution, but in the late Victorian period after it was enacted, it was commonly used to criminalise male homosexuality.

What relevance, then, does this almost 200 year old law have today? Concern has focused on the fact that the Act still criminalises rough sleeping and begging, with punishments ranging from fines to potential imprisonment. Under the ongoing provisions of the Act it remains a criminal offence to “wander abroad” or to be “in any public place, street, highway, court or passage[in order to] beg or gather alms”

Prosecutions under the Act have been relatively high in recent years, with almost 600 in 1988 and almost 1400 in 1989. A Freedom of Information request revealed that in 2018 there were just over 1300 prosecutions under the Vagrancy Act 1824.

The fact that prosecutions under the Act often involve the most disadvantaged in society behaving in ways which many people find difficult to condemn has led to increased concern over the last 10-15 years. 2014 saw three men prosecuted for taking food from bins outside a supermarket. The case was dropped.

The royal wedding in Windsor in 2018 saw calls for homeless people to be cleared from the streets using the Act. This would have marked a significant expansion of the use of the Act to deter, move on and criminalise homeless people over the years, by actual or threatened charges under the Act.

The most recent case in our experience involved a man with significant mental health problems who spent the night sleeping in an abandoned building and was subsequently charged with a series of offences, including the offence of

“[sleeping] in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of subsistence”

If it can be demonstrated that a defendant committed a crime as the result of an involuntary act they may be able to plead the defence of automatism.

Automatism is defined as “the performance of actions without conscious thought or intentions”. 

An automatism may occur secondary to physical or mental disorder; however, voluntary intoxication is not accepted as a cause.  It is may be pleaded as a full defence to any offence provided there is a total lack of control. 

Automatisms may be classified as insane or non-insane. 

For a defence of insane automatism, the involuntary action must have been caused by an “internal factor”.  In R v Hennessy (1989), the defendant (who had diabetes) committed the offence while in a hyperglycaemic state.  The hyperglycaemia was considered an “internal factor” and the plea of insane automatism was accepted.

By contrast, for a defence of non-insane automatism, the involuntary action must have been caused by an “external factor”.  A classic (hypothetical) example involves a van driver losing control of their vehicle when attacked by a swarm of bees (per Lord Goddard CJ, Hill vs Baxter [1958]).

If the defendant successfully pleads non-insane automatism this results in acquittal.  In the event of a successful plea of insane automatism a special verdict of not guilty by reason of insanity would be delivered which may result in the disposal of a Hospital Order (with or without a restriction order) under Section 37 of the Mental Act 1983 (as amended 2007). 

Diminished responsibility is a partial defence to murder which if proven can reduce the conviction to manslaughter. This allows the court a greater breadth of sentencing options.

In the late nineteenth and early twentieth century the mandatory sentence for murder was capital punishment. This was a major factor in the conception of diminished responsibility legislation.

The partial defence meant that the death penalty might be avoided in homicide cases where the accused was mentally disordered, but did not meet the threshold for insanity.

The Infanticide Act 1922 was an example from the same time period which reflected a will from Parliament to avoid harsh treatment for mentally disordered offenders.

Diminished responsibility was established in Scottish case law long before proposals were made to include the law in England and Wales. In 1867 a murder charge was downgraded in the case of Dingwall due to a ‘weakness of mind’ in the accused.

By the early twentieth century the phrase ‘diminished responsibility’ was being used regularly in Scottish courts to reduce murder convictions to manslaughter.

The  Homicide Act 1957 set out the criteria for diminished responsibility in England and Wales. Several years later the Murder (Abolition of Death Penalty) Act 1965 replaced capital punishment with a mandatory sentence of life imprisonment.

The criteria for diminished responsibility were amended by the Coroners and Justice Act 2009.

It’s an early start as I am due to give evidence in Sheffield Crown Court.  I’ve been asked to be there by 9am.  I leave my house at 6am as I don’t want to risk being late.  The traffic is terrible, but luckily I arrive on time.  I sit outside Court 3 and wait for the barrister to arrive. He arrives and we discuss the case. 

The defendant is a man in his early twenties charged with GBH.  He has a history of drug induced psychosis and personality disorder. After a period of assessment in hospital under Section 48 I am of the opinion that he has paranoid schizophrenia.  His mental state improved sufficiently on antipsychotic medication to render him fit to plead.

He has already pleaded guilty and I am giving oral evidence for a hospital order with a restriction order.  Unfortunately the required anticipated second report has not been submitted and the case is adjourned for six weeks.

I drive back to my NHS base.  I check my emails and go through the pile of paperwork that has accrued on my desk.  I go to the wards, where I review some of my ward patients and see my patients in seclusion. I ‘check in’ with the nursing staff to make sure there are no outstanding jobs / issues that need sorting out.

Back in my office I correct two reports that my PA has typed and write up my clinical notes for the day.  I leave on time at 5pm.  I take a file home with me as I’m seeing a man in prison tomorrow to assess his fitness to plead which I’ll read after dinner. 

Fitness to plead has traditionally been assessed in England and Wales according to the Pritchard Criteria. More recently the case of Jones has been cited.

The Pritchard criteria are generally accepted and are the criteria that most solicitors, barristers and judges are familiar with.

According to the Pritchard Criteria, a defendant will be unfit to plead if s/he is unable to one or more of:

• comprehend the course of proceedings of the trial, so as to make a proper defence
• understand the evidence against them
• instruct their legal representatives
• challenge a juror

The question of fitness to plead is generally raised by the defence, who must prove on the balance of probabilities that the defendant is unfit. If the prosecution raises the issue (which is rare) then they must prove unfitness beyond reasonable doubt.