Insanity Defence: The meaning of “wrong”

The central issue for consideration on an appeal against conviction of three charges of attempted murder was whether the trial judge misdirected the jury by failing to direct them that, even if the appellant knew what he was doing was wrong, the defence of insanity would be established if he believed that he had no choice but to commit the act in question: R v Jonathan Robert Keal [2022] EWCA Crim 341: Lord Burnett CJ, Thirlwall LJ, Morris J

Giving the judgment of the Court, the Lord Chief Justice endorsed the analysis of the authorities.[1]  In order to establish the defence of insanity within the M’Naghten Rules on the ground of not knowing the act was “wrong”, the defendant must establish both that (a) he did not know that his act was unlawful (i.e. contrary to law) and (b) he did not know that his act was “morally” wrong (also expressed as wrong “by the standards of ordinary people”).

In the Court’s judgment “wrong” meant both against the law and wrong by the standards of ordinary reasonable people.

Strictly, a jury must be satisfied that the defendant did not know that what he was doing was against the law nor wrong by the standards of ordinary people. In practice, how the jury was directed on the issue would depend on the facts and issues in the particular case.

The focus in Windle (and Johnson) on “wrong” meaning “contrary to law” flowed from the nature of each case. On the facts of both, each defendant knew what he was doing was “contrary to law”, but there was evidence that he did not consider that the act was “morally wrong”.

The defence failed because the defence could not establish (a) above. Equally, in the reverse, and likely rare, case, where the defendant did not know what he was doing was “contrary to law”, but did know it was “morally wrong”, the defence was not available.

Under the M’Naghten Rules the defence of insanity was not available to a defendant who, although he knew what he was doing was wrong, believed that he had no choice but to commit the act in question.

Posing the question Should the current law on insanity be interpreted as involving an element of choice? defence counsel invited the Court substantially to develop the law of insanity as it had been understood in the criminal law of England and Wales for over a century and a half.

The Court of Appeal was doubtful that it could do so properly in the light of the authorities which bound it. There were profound reasons why this matter was not suitable for judicial rewriting.

First, the Court was dealing with the facts of a single appeal without the wide-ranging exploration of the issues which should underpin significant law reform of the sort which informed the Law Commission’s work. An individual case did not provide an apt vehicle for the reconsideration of the “wrongdoing” elements of the M’Naghten Rules.

Secondly, this was an area of criminal law in which Parliament had been active. It had legislated in the past recognising that insanity was a defence to a criminal charge on the basis that the M’Naghten rules governed the underlying question: e.g. Criminal Procedure (Insanity) Act 1964.

In the context of murder Parliament had introduced the partial defence of diminished responsibility: section 2 of the Homicide Act 1957 as amended by section 52(1) of the Coroners and Justice Act 2009 which at the least had some overlap with reform of the law of insanity in crime.

Significant changes to an aspect of our criminal law that had remained undisturbed for so long, laden with policy choices as they would be, were more properly for Parliament.

The judge’s direction of law in the present case was appropriate. The jury was directed to consider whether the appellant knew that what he was doing was “wrong”.

On that issue the competing opinions of psychiatrists were placed before the jury. Two experts took the view that he did know; the other two considered that he was unable to decide that it was wrong.

On the basis of the evidence, and the judge’s direction, the jury could have found that the appellant did not have the relevant knowledge of wrongdoing and thus that the defence of insanity was established.

They chose not to do so, but instead reached verdicts consistent with the evidence of the prosecution experts.  On any view, the convictions were safe and the appeal was dismissed.

[1] R v Windle (1952) 36 Cr App R 856; R v Dean Johnson [2007] EWHC Crim 1978