NOTES OF CASES

DOIhttp://doi.org/10.1111/j.1468-2230.1957.tb00426.x
Publication Date01 Jan 1957
NOTES
OF
CASES
DEFECT
OF
REASON
FROM
DISEASE
OF
THE
MIND
THE
McNaghten Rules may well have been given a new meaning
by the decision of Devlin
J.
in
R.
v.
Kemp,’
a case heard at
the Bristol Summer Assizes. The celebrated formulation by the
judges in
1848
was couched in the following terms:-
‘;.
.
.
to establish a defence
on
the ground of insanity,
it
must be clearly proved that, at the time
of
the committing
of
the act, the party accused 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
. .
.”a
It
had come to be accepted that the phrase “defect of reason,
from disease of the mind
applied to persons suffering from one
of
the recognised forms
of
psychosis
or
major diseases of the mind,
and that minor forms of mental disorder (neurosis) were not
included.
It
seems that the decision under review renders possible
the inclusion under the McNaghten Rules of persons who can
scarcely be regarded as sdering from mental disease
or
disorder
at all but who are nevertheless not responsible
for
their conduct.
In this case we are told that the accused was suffering from
a physical disease, namely arteriosclerosis
or
hardening of the
arteries, which had not then reached a stage at which he displayed
any general
sign
of mental trouble. Apart from depression, not
an irrational depression, produced by his poor state of health,
there were
no
signs at all of mental trouble.”s
An
elderly man
of
excellent character, he suddenly made an entirely motiveless and
irrational attack upon his wife during the night, striking her with
a
hammer and causing a grievous wound. This was apparently
caused by a congestion
of
blood in the brain as a result of a
sudden rise in blood pressure, and the accused suffered a temporary
lapse of consciousness. Defence counsel argued that the accused,
not being conscious of the act which he committed at the time,
could not be held responsible for it.
As
the condition was not
due to disease of the mind, he was entitled to be acquitted.
It
is
understood4 that the first medical witness was called by the
1
[1956] 3
W.L.R.
724; [1956] 3
All
E.R.
249.
2
(1843) 10
C1.
&
Fin.
200,
at p.
207.
LOG.
cit.,
p.
725.
4
The writer obtained some additional information about the course
of
the
trial which does not appear
in
the report but which helps to clarify the
proceedings.
55
56
THE
MODERN
LAW
REVIEW
VOL.
20
prosecution to prove the injuries inflicted upon the accused’s wife.
He had known the accused for a considerable time, and under
cross-examination expressed the opinion that as a result
of
his
condition the accused was not conscious of his acts at the material
time. The defence then called a consultant physician, who agreed
with the view expressed by the prosecution’s previous medical
witness but who
in
addition expressed the opinion that the condition
from which the accused was suffering at the time was not a disease
of the mind and would not medically be treated as such. The
prosecution then tendered medical evidence to rebut the evidence
for the defence by proving that the accused was in fact at the
material time suffering from a mental disease, namely melancholia.
The defence objected to this evidence, but their objection was
overruled, and Devlin
J.
gave a judgment
on
the legal submissions.
The judgment is to the effect that whichever view the jury
took of the medical evidence-whether they held that the act was
done under a temporary clouding of the mind
or
under mental
disease-they must bring in a special verdict, which is what they
did. The learned judge held that the words “disease of the
mind
which qualify
‘‘
defect
of
reason
)’
in the McNaghten Rules
were not put
in
for any other purpose than
to
exclude defects
of reason
(‘
caused simply by brutish stupidity without rational
power.yys Hardening of the arteries is a disease which is capable
of affecting the mind in such a way as
to
cause a defect, tem-
porarily
or
permanently, of its reasoning and is therefore a disease
of the mind within the meaning
of
the Rules.
It
is not a question
whether there is disease of the brain,
nor
is it a question whether
there is physical
or
mental disease, for the law
is
not concerned
with the brain but with the mind and the faculties of reason,
memory and understanding.
It
is submitted that the following points emerge from this
case
:
-
1.
That defect of reason from disease of the mind is not
restricted to that form of mental disease
known
as psychosis.
It
is
interesting to note that the Report of the Royal Commission
on
Capital Punishment, while accepting that mental disease broadly
corresponds with psychosis, recognises that
it
may also arise
in cases such as epilepsy and cerebral tumour, which are not
ordinarily regarded by doctors as psychotic.o Moreover, the case
of
D.
P.
P.
v.
Beard
establishes that persistent drunkenness can
result in a condition of temporary insanity. In this respect there
is some authority for the learned judge’s view.
2.
That a person who commits a violent attack
on
another
when he is not conscious
of
the act is not necessarily entitled
to acquittal
on
a criminal charge.
6
p.
731.
6
Cmd.
8939,
September
1953,
0
912,
p.
73.
7
[1920]
A.C.
479.

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