Forensic psychiatry, the English Common Law and the history of the insanity defence
All legal systems, for there to be a criminal act, require the accused person to have done a crime and to have been in a state of mind where they were capable of knowledge of doing a crime and/or capacity to control themselves. For this reason, young children and people with many forms of insanity are not judged guilty. In a criminal trial, there is the possibility of a “defence of insanity”. Most decisions, however, are in fact not reached in court but through professional medical report within a legal-administrative framework. Nevertheless, occasionally there are highly public and emotional arguments about how to decide whether someone is “mad or bad”, that is, responsible, e.g. the case (in 2011) of the Norwegian mass murderer, Anders Behring Breivik. There is a historically significant difference between Anglo-American Common Law and European Continental Codified Law systems as they deal with these questions.
My talk will introduce the historical background to the issues, comment on the importance of Common Law and Codified Law systems for a professional speciality of forensic psychiatry, and illustrate the richness of historical sources in this area with discussion of one Victorian case (see my article, ‘Mad or Bad? Victorian Stories of the Criminally Insane’, L.S.E. Quarterly, 3 (1989): 1-20).