Psychopaths and Criminal Responsibility
| Author | Elizabeth Shaw |
| Date | 01 June 2009 |
| DOI | 10.3366/E136498090900064X |
| Published date | 01 June 2009 |
| Pages | 497-502 |
The Criminal Justice and Licensing (Scotland) Bill
Introduced into the Scottish Parliament on 5 March 2009. The Bill, accompanying explanatory notes and other documentation are available at
Scottish Law Commission, Report on
See
The Bill refers to psychopathy as “… a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct”. The Scottish Law Commission observed that this phrasing “may be criticised from a psychiatric perspective as focusing on only some aspects of the disorder. But in a legal context the expression is clearly understood to mean psychopathy”.
Scottish Law Commission, Report (n 2) para 2.62.
This statement is ambiguous. The Commission could mean that the courts use the term “psychopathy” to refer to nothing more than the definition just quoted. If this is the case, it is unclear why psychopathy should provide a possible basis for diminished responsibility as the Commission recommended – since this definition merely describes a typical criminal rather than a genuinely exculpating medical condition. In addition, if the legislative concept of psychopathy is meant to exclude all the other features of the richer psychiatric definitions, then it is misleading to call the legal concept “psychopathy” at all. Alternatively, the Commission could mean that this legislative phrasing is an accepted short-hand for a richer, more medically informed, concept. If this is the case, then the legislation should spell out precisely what this richer concept is, in order to make the law more transparent and in order to achieve consistency between casesThe standard tool psychiatrists use for diagnosing psychopathy is the “Psychopathy Checklist – Revised” (PCL-R).
R D Hare,
This distinction is not rigid, however. N Poythress and J Skeem, “Disaggregating psychopathy”, in C Patrick (ed)
The Scottish Law Commission expressed some doubt about whether psychopathy was a mental disorder, but concluded that this was an issue for psychiatrists, rather than legislators. The psychiatric profession is divided about the status of psychopathy and matters are further complicated by the absence of any generally agreed psychiatric definition of mental disorder.
Many, perhaps most, British psychiatrists are sceptical about personality disorders in general and about psychopathy in particular: see R E Kendell, “The distinction between personality disorder and mental illness” (2002) 180 British Journal of Psychiatry 110. Nevertheless, anti-social personality disorder, which is similar in many respects to psychopathy, is included in the two most influential classifications of mental disorder: World Health Organisation,
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