Citation: Brants, Chrisje, Jackson, Adam and Koenraadt, Frans (2016) Culpability compared:

Mental capacity, criminal offences and the role of the expert in common law and civil law
jurisdictions. Journal of International and Comparative Law, 3 (2). pp. 411-440. ISSN 2313-
3775

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Culpability Compared

Journal of International and Comparative Law

CULPABILITY COMPARED: MENTAL CAPACITY, CRIMINAL OFFENCES AND

THE ROLE OF THE EXPERT IN COMMON LAW AND CIVIL LAW

JURISDICTIONS

Chrisje Brants, Adam Jackson and Frans Koenraadt*

Abstract

This article compares the situation in which an individual with diminished mental capacity is

prosecuted for a criminal offence in England and Wales and in the Netherlands, with a

particular focus on the role of the expert medical witness.

It is not unreasonable to assume that, whatever the jurisdiction, the existence of a

condition affecting the mental capacity of the defendant may affect how the culpability of the

accused is assessed by the courts and translated into a verdict. By comparing culpability in the

context of the role of experts, consideration will be given to how substantive and procedural

law hang together in the different jurisdictions. A comparison between England and Wales (as

an example of a common law jurisdiction) and the Netherlands (as an example of a civil law

jurisdiction) may reveal very different outcomes with regard to the verdict and the way it is

reached that have far-reaching consequences for the person involved. This article will

examine why such differences may occur, in particular whether they are the result of the

common law’s reliance on just two possible reasons for the absence of culpability in such

cases (insanity or automatism, or, conceivably, diminished responsibility if murder is the

charge), while the civil law is based on a theoretically underpinned doctrine that allows for a

greater range of defences with regard to culpability (and its relative absence) in general.

The topic not only has possible practical implications, but could also contribute to the

growing body of comparative scholarship: comparisons of substantive criminal law, unlike its
many procedural aspects, are few and far between. One of the reasons is that substantive law

is shot through with moral considerations that are very difficult to ascertain and muddy the

comparative waters considerably. In this case, however, the issue is not the offence itself, but

whether and how a mental condition may affect culpability. While it could be said that the

recognition of such conditions is also contingent on their social and moral connotations, the

effect of this is likely to be much less than in a comparison of (perpetrators) of sexual

offences per se.

I. Introduction

The situation in which a person commits a criminal offence while affected by a condition that

influences their (mental) capacity to act and, more importantly, to understand the implications

of their actions, can occur, we may presume, in any country and therefore under any

jurisdiction. That condition may be an inherent medical or mental problem (temporary or

otherwise), it may be caused by ingesting certain substances (alcohol, drugs, medication), by

other external factors such as extreme fear or distress or by a combination of any or all of

these factors. It is also not unreasonable to assume that, whatever the jurisdiction, the

existence of the condition will affect how the culpability of the accused is assessed by the

courts and incorporated into the verdict.

While the outcome of a trial is a legal matter and culpability a normative legal

concept, the question of whether a defendant lacks (a degree of) mental capacity is not in

itself one that judges or average members of a jury are trained to answer. Experts such as

psychologists and psychiatrists therefore play an important role in helping determine whether

a defendant (1) suffers (or suffered at the time of the offence) from any medical and/or mental

problem and (2) what the effect of that problem was on their capability to act and to know or

correctly assess the consequences of their actions. So, the necessity of calling in the assistance
of experts is also a feature of all jurisdictions if the defendant raises a defence that calls his

mental capacity, and thus culpability, into question.

However, even a superficial comparison between common law and civil law

jurisdictions reveals that there are some major differences in both how experts define mental

conditions and how courts translate these situations into the possibility that the defendant

should not be held responsible under the law for what they have done. Such differences

influence the verdict and have far-reaching consequences for the person involved. This article

examines the factors that affect the occurrence of these discrepancies, drawing on (case) law

and (court) practice in England and Wales as an example of a common law jurisdiction with

an adversarial trial mode, and from the civil law jurisdiction of the Netherlands, where the

mode of trial is predominantly inquisitorial.

Our topic — capacity, culpability and the role of the expert — not only has possible

practical implications, but could also contribute to the growing body of comparative

scholarship. Comparisons of substantive criminal law, unlike its many procedural aspects, are

few and far between. One of the reasons is that substantive law is shot through with cultural-

moral considerations that are very difficult to ascertain and muddy the comparative waters

considerably. In this case, however, we are not concerned with the offence itself, but with

whether and how a mental condition may affect criminal liability, and the reasons for and

consequences of differences between jurisdictions. We are also concerned with the

relationship between these substantive questions and the procedural issue of the expert at trial.

Although it could be said that how such conditions are or are not recognised and defined in

law is also contingent on their social and moral connotations, the effect of this is likely to be

much less than in a comparison of (perpetrators) of criminal offences per se. In any event,

comparing culpability in the context of the role of experts will hopefully shed some light on

how substantive and procedural law hang together in different jurisdictions, thus providing a
framework for determining whether changes — be they substantive or procedural — are

feasible.

As always in a comparative study, a caveat is in order with regard to language. The

use of English, although the most widely accepted lingua franca of the academic world,

complicates matters, for it is also the language of the common law. English words in a legal

context therefore refer to common law concepts, but may mean something quite different in

the civil law world. Sometimes, the concept to which an English word refers derives its

meaning from the specific adversarial style of the criminal process that is characteristic of the

common law and simply does not, or rather cannot, exist in the inquisitorial process. A guilty

plea in the English (or American) sense, for example, is never entered in the Netherlands and

means nothing in the Dutch context, simply because defendants do not plead in order to end

the trial process; they may confess, but the court will still go on to investigate the case — the

confession being no more than a piece of evidence, albeit an important one. Sometimes the

words appear to mean the same thing, but have different connotations or consequences that

relate to differences in procedure (eg prosecutor, witness, impartiality), or in substantive law

(eg murder, manslaughter, intent, self-defence). We have tried to avoid the misunderstandings

that such discrepancies may cause by explaining, where necessary, the wider context in which

concepts are embedded and from which they draw their specific meaning.1

* Professor Chrisje Brants, Professor of Criminal Law, Northumbria Law School,

Northumbria University. Emeritus Professor, Willem Pompe Institute for Criminal Law and

Criminology, Utrecht University; Adam Jackson, Senior Lecturer and Deputy Director Centre

for Evidence and Criminal Justice Studies, Northumbria Law School, Northumbria

University; Professor Frans Koenraadt, Chair of Forensic Psychology and Psychiatry, Willem

Pompe Institute for Criminal Law and Criminology, Utrecht University.

 In the following, we first explore the differences between the Netherlands and England

and Wales with regard to matters of mental capacity and criminal liability. We then look more

closely at the role played by experts in helping the court reach a verdict. Given the differences

between the jurisdictions that are immediately obvious, our first question is whether these are

the result of the common law’s reliance on just two possible reasons for the absence of

culpability (insanity or automatism, or diminished responsibility if murder is the charge),

while the civil law is based on a theoretically underpinned doctrine that allows for a greater

range of defences with regard to culpability (and its relative absence) in general. This is

further compounded by the issue of “fitness to plead”, which, while it appears to exist in

Dutch law, is actually a different concept with different connotations (and consequences). An

additional reason to compare these two countries is that, despite substantive legal and

procedural differences, in the field of forensic mental health, both countries are eager to know

and learn from each other’s system. Most interest from abroad in the Dutch forensic mental

health system stems from the United Kingdom.2 Recent innovations in the UK were inspired

by the program and system in the Netherlands: the Medium Secure Units and the Dangerous

and Severe Personality Disorder program are recent examples in the UK, while in the 1960s,

1
For a discussion of how to try to surmount the conceptual difficulties of language and

difference in legal culture, see C Brants and S Field, “Legal Cultures, Political Cultures and

Procedural Traditions: Towards a Comparative Interpretation of Covert and Proactive

Policing in England and Wales and the Netherlands” in D Nelken (ed), Contrasting Criminal

Justice: Getting from Here to There (Aldershot, Dartmouth: Ashgate, 2000) pp.77–115.
2
MJF Van der Wolf, TBS veroordeeld tot vooroordeel (Oisterwijk: Wolf Legal Publishers,

2012) pp.687–698.
Maxwell Jones’s therapeutic community model was followed in Dutch forensic treatment

hospitals.3

Two major interrelated questions then arise. The first concerns the concept of capacity

and culpability in substantive law, and how this relates to specific defences. Could it be that

experts define conditions in a way that allows them to be translated into what the law and the

courts require? In other words, what is the relationship between the empirical knowledge of

the psychologist or psychiatrist and the normative demands of the criminal law? The second

question is related to differences in procedural styles. The position and role of the expert in an

adversarial and inquisitorial trial setting, respectively, differ significantly. Could the fact that

the expert in the Netherlands is appointed to the court, not as a witness but in a specific and

legally defined role (and moreover, since recently, needs to be included in the official register

of court experts), promote both greater consensus and a more specific, individual-based

approach to defences regarding mental capacity than is possible in a jurisdiction where expert

witnesses in an adversarial trial appear for either the defence or the prosecution?

II. Mental Capacity and Criminal Liability

English and Dutch criminal law and procedure differ fundamentally in two ways — in how

the law is found and in how the truth is found. The latter refers to the difference in procedural

style: adversarial or inquisitorial; the former to the primary source of law: tradition and

judicial interpretation and decision-making (and the related principle of stare decisis),4 or

codification by the legislature that is binding on the judiciary, respectively. This no longer
3
F Koenraadt, “The Boost of Forensic Psychiatry Embedded in Utrecht Cooperation” in F de

Jong (ed), Overarching Views of Delinquency and Deviancy: Rethinking the Legacy of the

Utrecht School (Den Haag: Eleven International Publishing, 2015), pp.89–134.

4
P Reichel, Comparative Criminal Justice Systems: A Tropical Approach (Upper Saddle

River, NJ: Pearson/Prentice Hall, 2005) pp.143–144.

holds entirely true for either country; certain inquisitorial elements have crept into English

procedure and England and Wales also have statutory criminal law, whereas Dutch procedure

has some moderately adversarial features and courts in the Netherlands interpret codified

provisions to an extent never envisaged in civil law theory. Nevertheless, this distinction

remains fundamental and has important implications for the issue of mental capacity and

criminal liability.

Because of its firm roots in the continental civil law system, the application of Dutch

criminal law is strictly regulated by a Criminal Code (CC) and a Code of Criminal Procedure

(CCP), and by the accompanying doctrinal rules. Case law plays a part because judges are

required to interpret the provisions of the Codes if necessary, on which the Supreme Court of

the Netherlands, should defendant or prosecution dispute the interpretation by the tribunal of

fact, has the final word (a process known as cassation). The Supreme Court’s decisions do not

have the status of stare decisis, ie a lower court is free to deviate from them. (This, of course,

risks the decision being overturned in cassation, but can also lead to the Supreme Court’s

accepting a new interpretation of the law.) True to these points of departure, binding

provisions of substantive and procedural law provide the framework within which Dutch

courts set about determining a defendant’s criminal liability.

A. The Netherlands

There is no jury in the Netherlands, indeed no lay participation at all, and in serious cases

criminal courts consist solely of panels of three professional judges (five on appeal, which

takes the form of a full retrial). Articles 348–350 CCP exhort the court to run through two sets

of questions to reach a verdict. The first concerns procedural matters (such as whether the

charge has been correctly formulated and the summons correctly served). Article 350 CCP is

concerned with the offence itself and the defendant’s guilt and responsibility. The court must

first decide whether there is sufficient evidence to sustain the charge, that is to say, have all
the elements contained in the offence as described in the CC been proven? Although to

English readers this may appear to refer to the actus reus, that is not necessarily the case,

because some provisions also explicitly contain mens rea elements; in others these are

implicit. The provision on intentional homicide, for example, explicitly mentions intent

(art.287 CC: “He who intentionally deprives another of life ”),5 which is thus an element

that the prosecutor must prove; if murder is the issue, then premeditation is an extra mens rea

element requiring proof. In cases of theft, however, (art.310 CC: “He who takes a commodity

belonging in whole or in part to another ”) intent is implicit in the verb “to take”. One

hardly “takes” by accident; and here, only the taking and not the intent to take requires

specific proof, although the prosecutor must prove the special intent behind the taking (“to

unlawfully appropriate that commodity”).

If there is insufficient proof of any element, the court must deliver a verdict of

acquittal. If there is sufficient proof, it must then decide first whether, under the circumstances

of the case, what has been proven actually constitutes a criminal act and, second whether, the

defendant can be held responsible for it. If the answer to either is “no”, the verdict is not one

of acquittal (not proven),6 but dismissal from prosecution (in Dutch: ontslag van alle

rechtsvervolging — ovar ). The reasoning behind this distinction is that it is impossible to not

prove an offence if there was none to prove in the first place, and that if criminal

5
The word “manslaughter” should be avoided here, as culpable homicide is a separate

offence, as is murder.
6
This does not have the same connotations or consequences as the Scottish verdict of not

proven. There is no distinction between not guilty and not proven in the Netherlands.

However, it is established doctrine that an acquittal can never mean “not guilty” in the sense

of absolute certainty; an acquittal reflects a legal truth based on the fact that the defendant’s

guilt has not been duly proven.

responsibility is lacking, the defendant has nevertheless been found guilty of a proven offence

and cannot be acquitted, but should not be further prosecuted. The distinction is important in

cases of lack of responsibility because an acquittal cannot be accompanied by forced

detainment in a mental hospital, but dismissal from prosecution can.

B. Justifications and excuses

Dutch criminal law doctrine therefore distinguishes clearly between whether the act is

punishable under the criminal law, and whether the defendant is punishable because he can be

held responsible.7 This is expressed in the distinction between justifications and excuses, the

definitions of which are found in the CC. It is not for the defendant to prove the existence of a

justification or excuse beyond reasonable doubt, only to convince the court of its likelihood.

The presence of a justification means that, although the elements of a potentially criminal act

have been proven, with hindsight, that act is not criminal at all. Because this is rarely, if ever,

the case if a defendant claims to have been suffering from a mental condition when the

offence was committed, the example of self-defence (art.41.1 CC) may suffice: in case of an

unlawful attack, a person has the right to defend themselves or their property, or another

person, by using force or violence that is reasonable and proportionate in the circumstances.

The justification removes the potentially criminal nature of the response, turning it into

legitimate action.

If the court is satisfied that there is no justification for the offence, it moves on to the

next question: Can the defendant be held responsible for his actions, or is there an excuse for

this law-breaking? This is not just a matter of mental capacity in the sense of insanity or

mental disorder. According to case law, it may well be that the defendant was mistaken as to

7
For a discussion on affirmative defences in Dutch criminal procedure, see P Bal and F

Koenraadt, Het psychisch onvermogen terecht te staan: Waarborg of belemmering van het

recht op een eerlijk proces (Den Haag: Boom Juridische uitgevers, 2004).
the circumstances in which the offence was committed.8 Take, for example, putative self-

defence: the defendant thought, wrongly, that they were being unlawfully attacked and

responded with violence or force while in reality there was no such attack. Obviously this

could occur as a result of a mental disorder, but it would be unlikely to be accepted as a

defence if only because the criterion of reasonability plays an important part: Would any

“normal”, reasonably thinking person have made the same mistake? That implies “normal”

reason, which is precisely what is usually lacking or impaired in defendants with mental

disorders.

The defence that one’s mental capacity was impaired can take different forms under

Dutch law: total incapacity or diminished capacity because of a mental disorder, or

temporarily diminished (or lack of) capacity because of psychological duress. Intoxication

may also cause impairment, but will only be recognised as contributing to an excusable lack

of capacity if the defendant is not to blame for the fact that they were intoxicated in the first

place (culpa in causa ): being drunk behind the wheel is not an acceptable excuse for causing a

car accident, though being under the influence of medication could be if the driver could not

reasonably be expected to have known that the medication would cause a lack of capacity.

Severe addictions, or even a (temporary) mental disorder such as a psychotic episode resulting

in severely diminished capacity, will not remove responsibility if caused by the use of a

substance the potential effects of which were known to and understood by the defendant.9

Psychological duress is not likely to succeed as a defence if the defendant is mentally

disturbed, because of the stringent criteria the law requires the court to apply: the defendant

cannot be held responsible for committing the offence due to psychological duress if their

8
Already established in 1914, the so-called Melk-en water arrest (Milk and Water decision):

HR 14 February 1916, W 9958, NJ 1916, p.861.

9
See eg Hof `s Hertogenbosch, 30 June, 20/0011369-05neHR.
action was the result of external pressure such that they could not, and could not be expected

to, resist. Whether that is the case depends on how acute and pressing the circumstances were

and whether, in such circumstances, any other “normal” person would be expected to resist.10

The fact that the cause of the duress must be external and the shadowy presence of the

“normal other” that determines whether resistance could have been required, more or less

preclude a defence of psychological duress in cases of mental disorder, the latter being an

internal factor that also prevents comparison with “normality”.

C. Total mental incapacity and diminished capacity

That leaves the defence of total incapacity or diminished mental capacity, which in fact comes

first in the Code’s enunciation. Article 39 CC declares that “no person shall be punished for

actions for which they cannot be held responsible because of the defective development or

pathological disorder of their mental faculties”. This seems to imply no responsibility at all.

However, the law is not specific as to what pathological disorder or limited development

means, so the courts must interpret this provision. It is generally agreed that its abstract and

criminally relevant meaning is that mental incapacity inhibits the exercise of free will, a

concept to which much Dutch philosophical-legal literature is devoted:11 only those capable

of exercising their will freely are deserving of punishment for their actions, even though they

may need to be removed from society in some other way, ie by imposing an order for

10
Excessive self–defence, also a defence specified in art.41 CC — the situation in which

disproportional and unreasonable force was used as a result of the psychological pressures of

the situation, ie the unlawful attack — is a specific form of psychological duress that does not

justify, but does excuse.

11
See the special issue of the journal Justitiële Verkenningen: Vrije wil en

verantwoordelijkheid (“Free Will and Responsibility”) (Den Haag: Boom Lemma uitgevers,

2013).
detainment in a secure mental hospital (a so-called tbs-order ).12 Conversely, anything less

than total incapacity leaves room for punishment, although the defendant’s mental state can

be taken into consideration in sentencing. Courts, however, consider more than the degree of

mental capacity in determining the nature and length of a sentence: such matters as the risk of

reoffending, the seriousness of the offence and the shock to public opinion also play a part.13

Because of the way in which Dutch courts decide according to the questions they must

answer on the basis of the Code of Criminal Procedure, diminished or total lack of mental

capacity will often result in a defendant being found guilty, but then — in case of total

incapacity — dismissed from prosecution. This does not, however, imply that the defendant

will walk free: the court may issue an order that the offender be detained and treated in a

forensic mental hospital (tbs-order ).14 In cases where the court delivers a verdict of guilty, but

with diminished responsibility, it may take that mitigating circumstance into account in

sentencing, but may also impose a prison sentence combined with a tbs-order or a (partly)

12
TBS, an acronym for ter beschikking stelling, in literal translation means “to place at the

disposal of”.
13
T den Boer and J van Mulbregt, “Two Faces of Accountability: A Forensic Mental Health

Perspective” in F de Jong (ed), Overarching Views of Delinquency and Deviancy: Rethinking

the Legacy of the Utrecht School (Den Haag: Eleven International Publishing, 2015) pp.435–

453. The authors maintain that the severity of the mental disorder is not necessarily decisive

for the forensic mental health expert opinion on the degree of accountability of the accused

and on the court’s ruling on whether the assessed person is criminally accountable for a

specific criminal offence (p.449).

14
F Koenraadt and A Mooij, “Mentally Ill Offenders” in M Boone and M Moerings (eds),

Dutch Prisons (Den Haag: BJu Legal Publishers, 2007) pp.167–186; see Van der Wolf, TBS

veroordeeld tot vooroordeel (n.2).

conditional sentence requiring the offender to voluntarily submit to treatment, depending on

the severity of the disorder causing the incapacity. Sometimes, however, legal doctrine and

the civil law dependence on the written code make it impossible to address the underlying

psychological or psychiatric issue. This is the case if the description of the offence contains

the word “intentional” or “intent”. A person whose mental capacity is diminished to such a

degree that there is no free will, cannot be said to be capable of acting intentionally, so that

one of the (mens rea ) elements of the offence — intent — cannot be proven. The only logical

verdict then is acquittal.

Article 37 CC allows detainment in a mental hospital (tbs) only in cases of dismissal

from prosecution, not acquittal. The consequences become clear from the following case, in

which the defendant was charged with “intentionally destroying part of the electricity network

in a hospital and causing a life-threatening situation”.15 He was found, after the electricity had

failed, in a confused state and without shoes in one of the hospital corridors. The clinical

psychologist appointed as an expert in this case concluded that, at the time of the offence, the

defendant was schizophrenic, psychotic and suffering from delusions and hallucinations, in

particular that he was part of the computer game Silent Hill to which he was addicted, and in

which he thought he was acting when he committed the offence; he was, therefore, not

capable of making any free choice as to his actions — the classic description of mental

incapacity as a lack of free will — and thus incapable of acting “intentionally”. This opinion

was confirmed by the other reporting expert, a psychiatrist. However, the presence of the

word “intentional” in the description of the offence with which he was charged meant that in

this case, contrary to the wishes of the prosecution, the defendant could not be detained for

compulsory treatment.

III. England and Wales

15 Rb Zwolle-Lelystad 27 October 2009, LJN: BK 1516.

There is an immediately obvious difference between the Netherlands and England and Wales;

in England and Wales there is no general “diminished capacity” defence, although diminished

responsibility is a special partial defence to murder which, if successfully pleaded, reduces the

defendant’s liability to (voluntary) manslaughter.16 Aside from diminished responsibility in

murder cases, if a defendant denies liability based on some form of medical condition or

mental incapacity, the defence will usually be either insanity (sometimes referred to as

“insane automatism”) or automatism (sometimes referred to as “non-insane automatism”).

The defendant’s condition may also raise an issue regarding their “fitness to plead” (and

therefore stand trial).

A. Insanity (or insane automatism)

The elements of the insanity defence were established in R v McNaughten17 in 1843 (the

McNaughten rules) and have remained largely unaltered since. To successfully plead insanity,

it must be proved that:

“at the time of the committing of the act, [the defendant] 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 that

what he was doing was wrong”.18

To establish a “defect of reason” it must be proven that the defendant’s powers of reasoning

were impaired, more than to the extent of a simple inability to resist impulses or exercise

emotional control.19 In R v Clarke20 it was held that a “momentary failure” of the accused’s

16
Homicide Act 1957, s.2 as amended by Coroners and Justice Act 2009, s.52.
17
(1843) 10 Cl & F 200, 8 ER 718.
18
Ibid., 210.
19
R v Kopsch (1927) 19 Cr App R 50.
20
(1972) 56 Cr App R 225.
concentration was insufficient to constitute a defect of reason because the accused had not

been “deprived of the power of reasoning”.21 The term “disease of the mind” has been given a

wide interpretation by the courts and does not necessarily require that a mental illness be

established.22 In R v Kemp23 the court observed that “ [t]he law is not concerned with the

brain but with the mind, in the sense that ‘mind’ is ordinarily used, the mental faculties of

reason, memory and understanding”.24

Once it has been established that the accused person is labouring under a defect of

reason caused by a disease of the mind, the jury must then consider whether he understood the

nature and quality of the act committed or, if so, whether the accused knew that what they

were doing was wrong. In R v Sullivan25 the court interpreted the first limb, the requirement

that the accused did not know the nature and quality of the act, as meaning the accused “did

not know what he was doing”.26 The second limb, that the accused, despite “knowing what

they were doing”, did not know that what they were doing was wrong, has been interpreted as

meaning legally (rather than morally) wrong.27 Ronnie MacKay criticises this “extremely

21
Ibid., 228.
22
Examples include arteriosclerosis (R v Kemp [1957] 1 QB 399), epilepsy (R v Sullivan

[1984] AC 156) and diabetes (R v Hennessy [1989] 1 WLR 287).

23
R v Kemp (n.22).
24
Ibid., 407.

25 R v Sullivan (n.22).

26 Ibid., 173.

27 R v Windle [1952] 2 QB 826.

narrow cognitive approach towards the rules ensuring that their application would be

restricted to fundamental or extreme intellectual defects”.28

Where the defence of insanity is raised, the jury must be satisfied that the defendant

did the act or made the omission charged (ie that the defendant committed the relevant actus

reus of the relevant offence). The defendant then carries the burden of proof to satisfy the jury

on the balance of probabilities that he was insane at the time of committing the relevant act.

Where the defence of insanity is successfully established, a special verdict of “not guilty by

reason of insanity” is returned.29 Following a successful insanity plea and by virtue of the

special verdict, the court has a number of disposal options available, specifically, a hospital

order (with or without a restriction order), a supervision order, or an order of absolute

discharge.30

B. Non-insane automatism

The distinction between insanity and non-insane automatism is an important one for an

accused because whereas insanity imposes a reverse burden of proof on the accused person,

an automatism defence must be disproved by the prosecution to the criminal standard of

proof.31 Moreover, where successfully pleaded, automatism provides a full defence to any

charge leading to a full acquittal rather than a special verdict and potential disposal options.

Although automatism does not have a single agreed definition, a plea of non-insane

28 R Mackay, Mental Condition Defences in the Criminal Law (Oxford: Clarendon Press,

1995) p.97.

29 Criminal Procedure (Insanity) Act 1964, s.1.

30 Ibid., s.5 as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act

1991 and the Domestic Violence Crime and Victims Act 2004, s.24(1).
31
The accused person bearing merely the “evidential” burden of raising some evidence of

automatism.
automatism essentially amounts to a denial of “voluntary control”32 by an accused person. In

Watmore v Jenkins 33 the court considered the term automatism to be a “modern catch-phrase

which the courts have not accepted as connoting any wider or looser concept than involuntary

movement of the body or limbs of a person”.34 The meaning of automatism was further

considered by the House of Lords in Bratty v A-G for Northern Ireland35 in which Viscount

Kilmuir LC accepted the Court of Criminal Appeal’s definition of automatism:

“as connoting the state of a person who, though capable of action, is not conscious

of what he is doing  It means unconscious involuntary action and it is a defence

because the mind does not go with what is being done”.36

This was articulated in Re A-G’s Reference (No 2 of 1992) by Lord Taylor CJ as requiring a

“complete destruction of voluntary control”.37

C. Distinguishing insanity and automatism

Where the accused’s defence is based on involuntary conduct and medical evidence is

adduced in support, the trial judge must decide whether the accused’s defence amounts to

insane or non-insane automatism. Making this determination can be difficult and requires the

judge to identify whether the defendant’s condition at the time of the offence was caused by

32 Law Commission of England and Wales, Insanity and Automatism: Supplementary

Material to the Scoping Paper (Law Com SP/SM, July 2012) para.1.12.

33 [1962] 2 QB 572.

34 Ibid., 586.

35 [1963] AC 386.

36 Ibid., 390.

37 [1994] QB 91, 105.

an external factor or whether it arose from a “disease of the mind”38 (an internal factor). A

cogent example of the difficulties caused by rigid adherence to the internal/external factor test

can be found by examining the approach of the courts to diabetic defendants. In R v Quick39

the defendant was acquitted following appeal of a charge of assault occasioning actual bodily

harm. The defendant suffered from diabetes and had taken insulin prior to the incident but had

not eaten. The Court of Appeal held that the defendant, suffering from hypoglycaemia, had

acted unconsciously and in a state of non-insane automatism caused by the external factor of

having taken the insulin. Conversely, in R v Hennessy,40 the Court of Appeal determined that

insanity was the appropriate defence where the defendant, again a diabetic, had failed to eat or

take insulin due to stress and depression and suffered a hyperglycaemic episode as a result.

The court held that the cause of D’s behaviour was “internal” (ie his medical condition) with

no identifiable external cause. As can be seen by reference to the two cases highlighted

previously, the distinction between whether the defendant’s condition was caused by an

external or internal factor is often an arbitrary one.

To Sum Up

At first sight and in comparison to the Netherlands, the defences on which a defendant in

England or Wales can rely seem much less nuanced in the sense of being geared towards the

many different situations that can arise. Neither is there any philosophical-theoretical

underpinning of criminal liability as dependent on the exercise of free will. However, the

concepts of “voluntary control” and “mind” (“the mental faculties of reason, memory and

understanding”) that have been developed in English case law come very close to the Dutch

38 R v Quick [1973] QB 910; R v Sullivan (n.22); R v Hennessy (n.22); R v Burgess [1991] 2

QB 92.

39 R v Quick (n.38).

40 R v Hennessy (n.22).
court’s terminology: the “capability to make free choices as to one’s actions”. Indeed,

although Dutch law distinguishes possible underlying reasons for a lack of free will and

different degrees of capacity which are binding on the courts, “defective development or

pathological disorder of the mental faculties” is a broad and non-specific description that

leaves the specifics to be developed in case law.

Moreover, English case law reveals many similarities in the factors that courts must

take into account in both countries. The most important question, at least in terms of the

consequences of the answer, is whether mental impairment (of the “mind” or “free will”) is

the result of internal or external factors, for in both countries the former may result in a

hospitalisation order. In this context, a closer look at how Dutch and English courts deal with

the defence that the crime was committed while the accused was asleep or was suffering from

some sort of sleep disorder — and thus had no voluntary control over their actions — is

illuminating. Sleep disorders (parasomnias) are frequently seen in mental patients and in

Western countries increasingly regarded as comorbid problems or disorders that need careful

diagnosis and effective treatment (sexsomnia is a special category of sleep disorder, in which

particular — sometimes violent — sexual behaviour or experiences occur, mostly in the early

non-REM-sleep).41 In the majority of cases, sleep disorders do not lead to a criminal

accusation.42 In some cases, however, a criminal process follows and, like in many domestic

41
M Lancel, “Slaapstoornissen in de psychiatrie: Prevalentie en mogelijke gevolgen” and M

Gordijn, “Slapen als onderdeel van een gezonde leefstijl” in M Lancel, P. Meerlo and J

Koolhas (eds), Gestoorde slaap: Een onschuldig probleem? (Oisterwijk: Wolf Legal

Publishers, 2016).
42
See eg DGH Krol, “Sekssomnia tijdens behandeling met een selectieve

serotonineheropnameremmer” [Sexsomnia during treatment with a selective serotonin

reuptake inhibitor] (2008) 50(11) Tijdschrift voor Psychiatrie 735–739.

violence offences, witnesses are lacking or are victims. Where in forensic mental health

assessment malingering always has to be taken into consideration, Schenck warns that

“experts should be very cautious when they are diagnosing sexsomnia in order to prevent

legal exploitations”.43

Sleep disorder as an incapacity defence is interesting for a number of reasons and not

only because it apparently offers an opportunity to “exploit the law”. To start with, it is

usually part of wider mental health issues and does not often (in either country) give rise in

itself to a defence of incapacity. In most cases, sleep disorders are compounded by, or the

result of, other existing mental problems (post-traumatic stress disorder, attention-deficit

hyperactivity disorder, borderline personality, psychosis) and/or the accompanying

medication or other intoxication. Sleep disorder is then simply one of the possible

contributing factors or consequences, or more usually, part of a vicious circle. As a specific

mental health issue, sleep disorder is relatively new and not always accepted; indeed, a senior

Dutch judge remarked of sexsomnia that “there are believers and non-believers, especially

where violent sexual activities are concerned”;44 currently, in cases of sexual abuse or incest,

being asleep or sleepwalking are normally not accepted in the Netherlands as forms of lack of

(or diminished) capacity.45 Given the unfamiliarity with the condition, and because the

43
CH Schenck, “Update on Sexsomnia, Sleep Related Sexual Seizures, and Forensic

Implications” (2015) 13(4) NeuroQuantology 518–541.

44
Y Van Kuijck, “Het fenomeen van de slaapstoornis in de rechtspraak” in M Lancel, P

Meerlo and J Koolhas (eds), Gestoorde slaap: Een onschuldig probleem? (Oisterwijk: Wolf

Legal Publishers, 2016).

45
See eg Rb Utrecht 12 September 2011, ECLI:NL:RBUTR:2011:BS8705; this appears to be

the only Dutch case in which a defence of sexsomnia seems to have been raised — and

rejected by the court.

relation between sleep disorders and a criminal offence is seldom clear cut, courts struggle to

fit a defence of parasomnia into the legally relevant categories of acceptable defences. This

results in discrepancies in expert assessments and court decisions in both the Netherlands and

England and Wales, in which the distinction between internal and external factors appears to

be particularly difficult.

Because of the scarcity of cases and the case-specific considerations that underlie

verdict and sentencing, it is impossible to give any sort of general indication of how Dutch

courts deal with sleep disorders and their relation to total or diminished mental capacity.

Indeed, the case in which both prosecution and defence defended the position that the

defendant lacked intent (will and awareness) to kill her husband by taking a hammer to him in

her sleep, and the court concluded that she was guilty of intentional attempted homicide but

could not be held responsible, possibly because of a sleep disorder, is highly unusual. 46 It is

also a debatable verdict, given that Dutch legal doctrine regards an attempt as inherently

intentional (an inadvertent attempt is a contradiction in terms), which was the position argued

in this case by prosecution and defence. The verdict should, therefore, have been an acquittal

(the defendant lacked the freedom of choice necessary for the required intent), but instead she

was dismissed from further prosecution.

Other cases in the Netherlands (drawn from a trawl though the case law databank for

cases relating to sleep disorder) reveal inconsistencies in judgment and sentencing. Consider,

for example, two cases involving arson.47 In one case, according to the expert psychologist,

the defendant suffered from sleep disorder, pain disorder, benzodiazepine dependency and

46
Rb ’s-Gravenhage 24 May 2012, ECLI:NL:RBSGR:2012:BW6539.
47
See also L Dalhuisen and F Koenraadt, “The Observation of Mental Disorder and

Dangerousness in Arsonists: A Contemporary Appraisal of Changes in Dutch Forensic Mental

Health Cases” (2015) 21(8) Psychology, Crime and Law 733–746.

borderline personality, and the court concluded diminished responsibility.48 In the other case,

a personality disorder and a sleep disorder led the court to conclude “slightly diminished

responsibility”.49 While this difference may have been due to the relative severity of the

respective defendants’ mental conditions and the related risks of reoffending as assessed by

mental health experts, other cases show more obvious discrepancies. There is the lorry driver,

convicted of drunk driving and attempted homicide for driving on the wrong side of the road

while a motorcycle was approaching and punching the motorcyclist in the head. According to

the mental health expert, during the offence, the defendant was prey to paranoid delusions due

to stress at work, and suffered from a sleep disorder because of the stress and financial and

domestic problems. The court found him guilty, but not responsible and dismissed him from

further prosecution on the basis of Art.39 CCP, the latter an indication that the underlying

condition was regarded as the result of internal factors.

A comparable case in which the defendant hit the victim several times on the head,

arm and fingers with an axe while, according to the expert, suffering from fear, stress and lack

of sleep, also ended in a guilty verdict and dismissal from prosecution, but in this case

because of psychological duress. The defendant had been mentally and probably physically

abused by her victim for months prior to the offence, which had undermined her capacity for

rational thought and caused extreme anxiety — an external cause, and therefore, not an

internal mental disorder.50 In a very similar case, in which a man could not sleep because of,

and had become obsessive about, the noise made by his neighbour and eventually attacked her

with an axe, expert opinion that the defendant suffered from a pervasive development

disorder, apparently led the court to find him guilty of attempted homicide, but with

48
Rb Noord-Holland 16 August 2013, ECLI:NL:RBNHO:2013:8270.
49
Rb Zutphen 20 November 2012, ECLI:NL:RBZUT:2012:BY3608.
50
Rb Rotterdam 9 November 2005, ECLI:NL:RBROT:2005:AU6707.
diminished responsibility.51 It is therefore unclear how the courts assess the causal role of

external factors that would give rise to a defence of psychological duress (not usually a reason

for a tbs-order): To what extent has some external event (such as a noisy neighbour or abusive

ex-partner) pushed an already mentally unstable and exhausted defendant over the edge?

In England and Wales, as in the Netherlands, there are only a small number of reported

cases of either sleepwalking or sexsomnia being used as the basis for a criminal defence; and

in respect of sexsomnia, there are no appellate court decisions. Usually where a sleep disorder

is used as the basis for a defence, it is as a denial of voluntary conduct in relation to the

commission of the offence itself. The approach of the courts when such a defence is raised,

however, seems somewhat arbitrary in that there is a clear contrast in legal outcome (and

consequences for the defendant) between somnambulism in the form of “sleepwalking”

(usually where the defendant has engaged in some form of violent behaviour during the

sleepwalking episode) and cases of sexsomnia (where the defendant engages in sexual activity

whilst asleep), notwithstanding the fact that both are considered medically to be forms of

parasomnias or “abnormal episodic events occurring during sleep”.52

In R v Burgess53 the defendant was charged with wounding with intent after stabbing a

woman. The defendant claimed that he was asleep at the relevant time and adduced evidence

of two psychiatrists who each testified that he was sleeping at the time. The trial judge

directed the jury that, if they accepted the medical evidence, the correct defence was one of

insanity and the jury returned the special verdict. The trial judge’s direction was confirmed by

the Court of Appeal which held that the appropriate defence was insanity because “this was an

51
Rb Limburg 11 April 2014, ECLI:NL:RBLIM:2014:3623.
52
See eg ICD–10 and DSM–V; CM Shapiro, NN Trajanovic and JP Fedoroff, “Sexsomnia: A

New Parasomnia?” (2003) 48 Can J Psychiatry 311–317.

53
R v Burgess (n.38).
abnormality or disorder, albeit transitory, due to an internal factor whether functional or

organic which had manifested itself in violence”.54 In 2005 Jules Lowe was found not guilty

by reason of insanity and made subject to a hospital order for the murder of his father, whom

he had stabbed to death whilst sleepwalking.55 By contrast, in cases involving sexsomnia as a

defence to a charge under the Sexual Offences Act 2003,56 the courts in England and Wales

appear to have favoured the use of the automatism defence resulting in acquittal in cases

where the jury accepts that the defendant was in fact asleep when engaging in the sexual

activity.57 In England and Wales over the last ten years, there have been approximately two to

three cases per year in which the sexsomnia defence has been raised and, to our knowledge,

all have resulted in a conviction for the substantive offence or a full acquittal on the basis of

automatism.58

54
Ibid., 101.
55
I Morrison, JM Rumbold, and RL Riha, “Medicolegal Aspects of Complex Behaviours

Arising from the Sleep Period: A Review and Guide for the Practising Sleep Physician”

(2014) 18(3) Sleep Medicine Reviews 249–260.

56
Sexual Offences Act 2003; usually a charge of rape (s.1) or sexual assault (s.3).
57
See eg Bilton, The Guardian (20 December 2005); A Jackson, G Rees, and N Wortley,

“Sleep Disorders/Sexsomnia: The Role of the Expert and the External/Internal Factor

Dichotomy” in L Ben, R Alan and W Nikola (eds), Mental Condition Defences and the

Criminal Justice System: Perspectives from Law and Medicine (Cambridge: Cambridge

Scholars Publishing, 2015) pp.236–274.

58
Morrison, Rum Bold and Riha, “Medicolegal Aspects of Complex Behaviours Arising from

the Sleep Period” (n.55).

 Defences based on (different forms of) parasomnia are also raised in other common-

law jurisdictions.59 Canada, for example, that already adopts a slightly more liberal approach

to applying the internal/external factor test in cases involving insanity or automatism, has

managed to avoid the peculiar dichotomy between the (temporarily) insane sleepwalker and

the sane sexsomniac on automatic pilot. In R v Parks,60 the Ontario Court of Appeal held that

the appropriate defence in a case where the defendant killed whilst sleepwalking was that of

non-insane automatism. On appeal, the Canadian Supreme Court61 decided against following

the approach adopted by the Court of Appeal in England and Wales in Burgess,62 and upheld

the earlier decision of the Ontario Court of Appeal, La Forest J determining that the

external/internal factor test should be used as an “analytical tool, and not as an all-

encompassing methodology”.63 This was followed in Canada in R v Stone,64 in which the

court suggested a “holistic approach” should be taken when attempting to identify whether the

defendant was suffering from a disease of the mind. Successful sexsomnia defences raised in

Canada also appear to result in an acquittal on the basis of non-insane automatism.

V. Fitness to Plead (or to Stand Trial)

59
A Organ and JP Fedoroff, “Sexsomnia: Sleep Sex Research and Its Legal Implications”

(2015) 17(5) Current Psychiatry Reports 34; CH Schenck, I Arnulf and MW Mahowald,

“Sleep and Sex: What Can Go Wrong? A Review of the Literature on Sleep Related Disorders

and Abnormal Sexual Behaviors and Experiences” (2007) 30(6) Sleep 683–702.
60
(1990) 56 CCC (3d) 449.
61
R v Parks [1992] 2 SCR 871.
62
R v Burgess (n.38).
63
R v Parks (n.61), [11].
64
[1999] 2 SCR 290.
Where the defences of insanity or automatism (and in the Netherlands art.39 CC or

psychological duress) hinge on the substantive criterion of external or internal cause, the

defence of fitness to plead takes us into the realm of procedural law, where differences

between jurisdictions are attributable to the distinction between the adversarial procedure

characteristic of common law jurisdictions and the inquisitorial procedural style that obtains

in civil law jurisdictions. Much has been made of the fact that adversarial and inquisitorial are

adjectives indicative of ideal types that no longer exist in practice. In Europe, harmonising

factors such as binding fair trial norms emanating from the European Union and the case law

of the European Court of Human Rights and Fundamental Freedoms (ECtHR) have led to a

degree of convergence that mitigates many distinguishing features, in particular in

inquisitorial procedure.65 However, criminal procedure in England and Wales and the

Netherlands still display fundamental characteristics of these ideal types, which profoundly

influence the issue of fitness to plead.

While both procedural styles are concerned with establishing the truth in a fair

manner, the most immediately obvious difference is not, as is often maintained, that the

“truth” in an adversarial trial is the truth according to the most persuasive party whereas state

officials in an inquisitorial trial seek to establish “the real truth” (although there is some truth

65
S Field and A West, “Dialogue and the Inquisitorial Tradition: French Defence Lawyers in

the Pre-trial Criminal Process” (2003) 14 Criminal Law Forum, 261–316; Brants and Field,

“Legal Cultures, Political Cultures and Procedural Traditions” (n.1), pp.77–115; C Brants and

A Ringnalda, Issues of Convergence: Inquisitorial Prosecution in England and Wales?:

Preadvies voor de Nederlandse Vereniging voor Rechtsvergelijking (Nijmegen: Wolf Legal

Publishers, 2011).
in this),66 but how they set about truth finding and thus define fairness (and vice versa, given

that this is a dialectical relationship). In adversarial procedure, the truth is considered best

found in open debate between equal autonomous parties (defence and prosecution), each

presenting their own version of events before an impartial tribunal of fact; this corresponds

with the basic common law tenet that individuals have intrinsic rights which they can invoke

to defend themselves against intrusion into their freedom by the state. Fairness and truth are

interrelated in that both require that defendants be able to present their case, through a legal

representative, on an equal footing with the prosecution; should there be no such possibility or

equality, the different versions of the truth that the tribunal of fact will hear will not carry

equal weight, which will unfairly skew “the truth” even before it is found.

In inquisitorial systems, true to basic tenets of the civil law in which the state is

considered the guarantor of the individual freedom of citizens, truth finding is regarded as

best entrusted not to individual parties, but to state officials who conduct investigations

thoroughly and impartially. Here, fairness depends on the thoroughness of the investigation

and the impartiality of the prosecutor and his commitment to taking all interests, including

those of the defendant into account.67 Brants and Field offer the following:

66
The implication of this, that a party’s truth cannot be the real truth, while those from

adversarial jurisdictions do not care if it is or not, seems obviously unacceptable, while the

truth established in an inquisitorial trial is established in a process, the agenda for which (as

set out in the case dossier) is set by the prosecutor.

67
C Brants and S Field, “Truth-Finding, Procedural Traditions and Cultural Trust in the

Netherlands and England and Wales: When Strengths Become Weaknesses” The International

Journal of Evidence and Proof (forthcoming 2016).

 <blockquote>“Thus in the Netherlands, a thorough investigation supervised by an

impartial prosecutor68 with the resulting evidence both for and against guilt

recorded in an official file, is assumed to provide an active fact-finding judge with

the capacity to find truth at trial. Within the adversarial tradition in England and

Wales, autonomous party rights to collect the evidence that suits their case are

said to provide a basis for strong defence narrative building and the opportunity to

effectively challenge prosecution witnesses at trial through cross-examination.

This allows the equality of arms in argument at trial upon which accurate

adversarial fact-finding is thought to depend”.69</blockquote>

Insanity and automatism both concern the mental state of the accused person at the

time that they committed the alleged offence with which they are charged. Consideration of

the mental state of the accused may also be relevant at the time that they fall to be tried if their

mental state might render them unfit for such a process or unable to obtain a fair trial.

Whether or not an accused person is fit to stand trial in England and Wales is determined by

identifying whether or not that person is “fit to plead”.70 Fundamentally, according to the Law

Commission:

68
Originally this would have been an investigating judge comparable to the French juge

d’instruction.
69
Brants and Field, “Truth-Finding, Procedural Traditions and Cultural Trust in the

Netherlands and England and Wales” (n.67).

70 The Law Commission of England and Wales in its consultation paper Unfitness to Plead:

A Consultation Paper (Law Com No 197, 2010) describes the term “unfit to plead” as

“somewhat misleading” observing that it “conflates the issues of the accused’s ability to enter

a plea to the charge and his or her ability to stand trial” (para.1.18). In practice, the term
 “[u]nfitness to plead differs from insanity [and automatism] in that it is concerned

with the question of an accused’s mental state at the time of his or her trial and not

at the time of the offence”.71

Arlie Loughnan states that, at least in common law jurisdictions:

“unfitness to plead has two main functions: it provides a safeguard for a defendant

who cannot be tried fairly, and at the same time, if he or she is ‘dangerous’ (in the

sense of likely to reoffend), protects victims of his or her alleged offence, and the

public more broadly, by providing the court with special disposal powers”.72

The test for identifying whether an accused is fit to plead (and therefore to stand trial)

was set out in R v Pritchard73 in 1836 and considers, in general terms, whether the accused

person “has sufficient understanding to comprehend the nature of [the] trial, so as to make a

proper defence to the charge”.74 In most cases the question of whether the defendant is fit to

plead will be raised by the defence; however, it may also be raised by the prosecution or by

the court (judge).75 It is not sufficient that the judge is satisfied that the accused is not capable

of acting in their best interests;76 instead the accused must satisfy the requirements of the

“fitness to plead” is used almost interchangeably with “fitness to be tried”; see eg R v Ghulam

[2010] 1 WLR 891.

71 Law Commission, Unfitness to Plead (n.70) para.1.16.

72 A Loughnan, “Between Fairness and ‘Dangerousness’: Reforming the Law on Unfitness to

Plead” (2016) 7 Crim LR 451–466, 451.

73 (1836) 7 Car & P 303, 173 ER 135.

74 Ibid., 304, 135.

75
Criminal Procedure (Insanity) Act 1964, s.4(1).
76
See eg R v Robertson [1968] 1 WLR 1767; R v Berry (1978) 66 Cr App R 156.
Pritchard test, which were expressed in R v M (John)77 in 2003 (John M). The formulation

adopted in John M identified that an accused should be found unfit to plead if it was beyond

his capability to do one or more of the following things: understand the charges; decide

whether to plead guilty; exercise his right to challenge jurors; instruct solicitors and/or

advocates; follow the course of proceedings; and give evidence in his own defence. 78 The

decision as to whether the accused is fit to plead is made by a judge in the absence of the

jury.79 To make such a determination, the judge must receive evidence from “two or more

registered medical practitioners at least one of whom is duly approved”.80 In this context,

“duly approved” means a medical practitioner who is approved under s.12 of the Mental

Health Act 1983, meaning: “a practitioner approved  by the Secretary of State as having

special experience in the diagnosis or treatment of mental disorder”.81 In practice, the finding

of unfitness to plead requires a “consensus of psychiatric opinion”,82 however, there is

currently no prescribed test for use by psychiatrists in making assessments of fitness to

plead.83 Rogers et al., identify that:

“In England and Wales, the all-or-nothing finding of unfitness is rare. It requires a

very high level of disability, at the extreme end of a spectrum of ‘psycho-legal’

77 [2003] EWCA Crim 3452.

78 Ibid., [20].

79 Criminal Procedure (Insanity) Act 1964, s.4(5), as amended by Domestic Violence, Crime

and Victims Act 2004, s.22(2).

80 Criminal Procedure (Insanity) Act 1964, s.4(6) as amended by the Criminal Procedure

(Insanity and Unfitness to Plead) Act 1991, s.2.

81 Mental Health Act 1983, s.12.

82
Law Commission, Unfitness to Plead (n.70) para.4.2.
83
Ibid., para.4.1.
 ability. Many defendants who undergo trial suffer significant levels of impairment

without ever reaching this threshold”.84

This criticism is echoed by De Than and Elvin, who argue that the “binary” nature of

the fitness-to-plead rules fail to provide an adequate safeguard for defendants with diminished

but partial capacity.85 The binary nature of the distinction between the defendant who is fit to

plead and the defendant who is not fit, can be equally applied to the defences of insanity and

automatism (discussed previously); the availability of either defence (and indeed the decision

as to which defence applies) determined by whether the defendant meets the required legal

threshold.

If the judge finds that an individual is fit to enter a plea, then the trial proceeds as

normal. If, however, the judge determines that the accused person is unfit to plead, then a

hearing must take place pursuant to s.4A of the Criminal Procedure (Insanity) Act 1964

(CP(I)A).86 Section 4A provides that, following a finding that the accused is unfit to plead, the

trial shall not proceed and a jury shall determine whether the accused did the act or made the

omission charged against him as the offence. This process is often called a “trial of the

issue”87 or “trial of the facts”88 and relates only to establishing that the accused committed the

84
T Rogers, N Blackwood, F Farnham, G Pickup and M Watts, “Fitness to Plead and

Competence to Stand Trial: A Systematic Review of the Constructs and Their Application”

(2008) 19(4) The Journal of Forensic Psychiatry & Psychology 576–596, 593.
85
Cf. C De Than and J Elvin, “How Should the Criminal Law Deal with People Who Have

‘Partial Capacity’?” in L Ben, R Alan and W Nicola (eds), Mental Condition Defences and

the Criminal Justice System (Cambridge: Cambridge Scholars Publishing, 2015) pp.295–317,

296.

86 As inserted by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s.2.

87 Law Commission, Unfitness to Plead (n.70) para.1.5.

actus reus of the relevant offence.89 If, following a trial of the facts, the jury is not satisfied

that the accused person did the relevant act or made the relevant omission, then the correct

verdict is an acquittal as if the trial had proceeded to conclusion.90 If, however, the jury is

satisfied that the accused person did the relevant act or made the relevant omission, then it

must make a finding to that effect.91 Where a finding against an accused person is made, the

disposal options available are the same as those following the return of a special verdict of not

guilty by reason of insanity (discussed previously), namely, a hospital order (with or without a

restriction order); a supervision order; or an order for the accused person’s absolute

discharge.92 Once a finding of unfitness to plead has been made against an individual, a

criminal prosecution can only be recommenced where the court has made a hospital order and

imposed restrictions on the individual.93

The ECtHR considered the circumstances in which the detention of a person of

“unsound mind” could be compatible with art.5(1) of the European Convention on Human

Rights in Kolanis v United Kingdom.94 The ECtHR applied the so-called Winterwerp

Criteria 95 (a decision against the Netherlands involving a commitment order in a civil case) in

the following terms; there must be reliable objective medical expertise showing the patient to

88 Loughnan, “Between Fairness and ‘Dangerousness’” (n.72) p.459.

89 R v Antoine [2001] 1 AC 340.

90 Criminal Procedure (Insanity) Act 1964 (as amended), s.4.

91 Ibid., s.3.

92 Ibid., s.5.
93
Criminal Procedure (Insanity) Act 1964, s 5A(4).

94 (2006) 42 EHRR 12.

95 Derived from the earlier ECtHR decision in Winterwerp v Netherlands (1979–80) 2 EHRR

387.
be suffering from a mental disorder; the disorder must be of a “kind or degree” warranting

compulsory confinement; and the validity of any continued detention depends upon the

persistence of a true mental disorder of a kind or degree warranting compulsory detention,

established upon objective medical expertise.96 In the context of this decision and the

jurisprudence of the ECtHR, the Law Commission conducted a detailed evaluation of the

fitness to plead procedure in England and Wales, publishing a Consultation Paper in 2010, 97

an issues paper98 in 2013 and finally a two-part report in January 2016.99 It suggests that

“national law will be compatible with the Convention as long as it requires some objective

medical evidence which establishes that the person is suffering from a mental disorder

warranting compulsory detention”.100 Ultimately the Law Commission concluded that the

common law test should be abolished and replaced with a statutory test (outlined in volume 2

of their report).101 The proposed statutory test would be based on the defendant’s “capacity to

participate effectively in the trial”.102 The government’s interim response, however, suggests

that implementation is unlikely in the short term.103

96
Kolanis v United Kingdom (n.94), [67].
97
Law Commission, Unfitness to Plead (n.70).
98
Law Commission, Unfitness to Plead (n.70) para.4.1.
99
Law Commission of England and Wales, Unfitness to Plead: Volumes 1 & 2 (Law Com No

364, 2016).
100
Law Commission, Unfitness to Plead (n.70), Appendix A: Mental Health Legislation,

para.A.6.
101
Law Commission, Unfitness to Plead (n.99).
102
Clause 1(2) Criminal Procedure (Lack of Capacity) Bill.
103
M Penning, MP, Ministry of Justice, “Government Interim Response to the Law

Commission’s Report on Unfitness to Plead” (30 June 2016), available at

 The issue of fitness to stand trial can occur in the Netherlands too (art.16 CCP) and is

in some ways similar, yet also very different. Article 16 CCP also pertains to the situation at

the time of the trial and not to criminal responsibility at the time when the offence was

committed.104 Whether or not the defendant is fit to stand trial is also assessed by a forensic

mental health expert. However, the issue seldom arises (at most just a few times a year in the

whole country) and the criterion for the assessment is very much simpler: To what extent does

this defendant have any idea of the fact that he will have to stand trial at all? Article 16

therefore really only applies to defendants suffering from severe mental disorders like

psychosis, in which they have lost touch with all reality. If that is found to be the case, the

trial will be postponed and the accused committed to a mental hospital, where they will

remain until their situation has improved to the extent that hospitalisation is no longer

necessary. Having been discharged from hospital, they may well be considered fit to stand

trial. Given this scenario, it is not impossible that the court could as yet deliver a verdict of

total or diminished (in) capacity and impose a tbs-order. Indeed, a mental health expert might

be required to advise the court on both issues at the same time, although with a different

perspective in time and, of course, different further implications. In England and Wales,

where the defence of unfit to stand trial is raised much more often than in the Netherlands, the

http://data.parliament.uk/DepositedPapers/Files/DEP2016-

0605/Mike_Penning_Government_interim_response_on_Unfitness_to_Plead.pdf (visited 22

August 2016).
104
PL Bal and F Koenraadt. Het psychisch onvermogen terecht te staan. Waarborg of

belemmering van het recht op een eerlijk proces (Den Haag: Boom Juridische uitgevers,

2004); L Van den Anker, L Dalhuisen and M Stokkel, “Fitness to Stand Trial: A General

Principle of European Criminal Law?” (2011) 7(3) Utrecht Law Review 120–136.
question of accountability does not arise because a defendant committed to hospital due to

chronic mental disorder will remain there and never come to trial.

The difference between unfit to stand trial in England and Wales and the Netherlands

derives directly from the differences between adversarial and inquisitorial procedure. By

definition, the adversarial criterion must depend on whether the accused is capable of

conducting a defence; the very nature of the trial requires that defendants are autonomous and

capable of determining whether they should plead guilty or not and of putting forward their

own case, or at least instructing another to do so for them. This matter does not arise in the

same way in inquisitorial jurisdictions, where the prosecutor — whose impartiality and task of

finding the “real” truth require that he include both inculpating and exculpating evidence in

the dossier — is expected to take the defendant’s case into account. A fair trial here depends

less on the autonomy of equal parties than on the prosecutor fulfilling his role according to the

expectations that flow from inquisitorial proceedings, ie impartially and thus fairly. That it

would be unfair to try someone who has not the faintest idea of what is going on seems to

derive more from humanitarian criteria than from any procedural necessity (although it is true

that the defendant should be available for the trial judge to question, in order to test the

prosecution case).105

The definition and form of “unfit to stand trial” can thus be seen to depend on the style

of procedure and concomitant roles and expectations of the participants. That is also true of

the position of experts in criminal proceedings, where they are expected to assist the court

105
In terms of human rights and fair trial, it could also be said that the right to know the

charge and the evidence and to challenge it (Art.6 of the ECHR) implies that defendants must

be capable of at least understanding that there is a charge and evidence that may be brought

against them and of mounting a challenge.

(judges or jury) in determining whether the defendant has mental capacity and can therefore

be held responsible for the offence he has committed.

VI. The Position of the Expert

In both the Netherlands and in England and Wales, cases where the mental condition of the

defendant is in question mean that the court and jury must rely heavily on the opinion of

psychological and/or psychiatric experts (known in the Netherlands as forensic mental health

experts). It is, of course, obvious that the difference between an adversarial court setting with

a jury as in England and Wales, and an inquisitorial court with professional judges as in the

Netherlands, is huge and is immediately significant for the fact that the expert in the first case

will be acting for one of the parties and in the second as an appointee to the court. While both

are subject to professional and ethical standards that are, we may presume, if not the same,

then at least very similar, their position in court and role in the process are very different.

Adversarial experts (if we may call them that) are witnesses for the defence or prosecution,

will expect to give oral evidence, possibly to be contradicted by the expert for the other side

and to be subject to cross-examination; their evidence will be geared towards the defence

raised. Inquisitorial experts are not witnesses but have their own position as “experts”,

reporting pro Justitia as a regular part of their job; their most important task is to produce a

written report on the defendant’s mental condition, and if required, to appear in court to

clarify their opinion by answering any questions the judges may have as to the mental state of

the defendant, the risks of reoffending and the chances of successful treatment. That raises the

question of how experts fulfil the role demanded of them in the respective court settings, what

procedural and professional rules guide their actions, how they define mental (in)capacity and

how their definitions and opinions relate to categories that are meaningful in criminal law.

A. England and Wales

In all cases involving insanity/automatism based on the medical/mental condition of the

defendant (and indeed the question of the defendant’s fitness to plead), expert evidence will

play a vital role. A verdict of not guilty by reason of insanity can only be returned if there is

written or oral evidence from two or more registered medical practitioners of whom at least

one is approved by the Home Secretary as having special experience in the field of mental

health.106 In the context of diminished responsibility, whilst there is no statutory requirement

that expert medical evidence is adduced, the courts have described it as a “practical

necessity”.107 Because the burden of proof rests on the defence to establish the defences of

insanity or diminished responsibility, the jury must be satisfied that the defences have been

proven on the balance of probabilities. In practice, if the medical evidence is uncontested, the

judge will direct the jury to return the appropriate verdict.108 In cases involving a defence of

automatism, expert medical testimony will often be necessary to identify the “external” cause

of the defendant’s condition.

Recent changes to Pt.19 of the Criminal Procedure Rules and the Criminal Practice

Direction (CrimPD) on expert evidence109 have sought to introduce a pre-trial consideration

of the reliability of expert evidence in criminal proceeding. Factors which the court may now

take into account in determining the reliability of expert opinion, and especially of expert

scientific opinion, include:110

(1) the extent and quality of the data on which the expert’s opinion is based, and the validity

of the methods by which they were obtained;

106
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s.1.
107
R v Dix (1982) 74 Cr App R 306; R v Bunch [2013] EWCA Crim 2498.
108
See eg R v Brennan [2015] 1 WLR 2060.
109
Criminal Practice Direction [2015] EWCA 1567, V Pt. 19A.
110
Ibid., Pts.19A.5, 19A.6.
(2) if the expert’s opinion relies on an inference from any findings, whether the opinion

properly explains how safe or unsafe the inference is (whether by reference to statistical

significance or in other appropriate terms);

(3) if the expert’s opinion relies on the results of the use of any method (for instance, a test,

measurement or survey), whether the opinion takes proper account of matters, such as the

degree of precision or margin of uncertainty, affecting the accuracy or reliability of those

results;

(4) the extent to which any material upon which the expert’s opinion is based has been

reviewed by others with relevant expertise (for instance, in peer‐reviewed publications), and

the views of those others on that material;

(5) the extent to which the expert’s opinion is based on material falling outside the expert’s

own field of expertise;

(6) the completeness of the information which was available to the expert, and whether the

expert took account of all relevant information in arriving at the opinion (including

information as to the context of any facts to which the opinion relates);

(7) if there is a range of expert opinion on the matter in question, where in the range the

expert’s own opinion lies and whether the expert’s preference has been properly explained;

and

(8) whether the expert’s methods followed established practice in the field and, if they did not,

whether the reason for the divergence has been properly explained.

Furthermore “in considering reliability, and especially the reliability of expert

scientific opinion, the court should be astute to identify potential flaws in such opinion which

detract from its reliability”.111 Such potential flaws include the expert’s opinion: (a) being

based on a hypothesis which has not been subjected to sufficient scrutiny (including, where

111
Ibid., Pt. 19A.6
appropriate, experimental or other testing), or which has failed to stand up to scrutiny; (b)

being based on an unjustifiable assumption; (c) being based on flawed data; (d) relying on an

examination, technique, method or process which was not properly carried out or applied, or

was not appropriate for use in the particular case; or (e) relying on an inference or conclusion

which has not been properly reached.112

B. The Netherlands

In the Netherlands, approximately 5,000 forensic mental health reports are made each year on

the order of the public prosecutor or examining magistrate in a particular case. Pre-trial

forensic mental health assessment can be carried out on an outpatient basis or in a special

residential setting. There are several types of forensic mental health assessment that can be

ordered in the Dutch criminal justice system. The examining magistrate or public prosecutor

is guided in his decision to order a particular type by staff of the Netherlands Institute of

Forensic Psychiatry and Psychology (NIFP), and before making recommendations, the NIFP

forensic psychiatrist or psychologist visits the accused for a brief consultation. After it has

become clear that there is a need for a forensic mental health report, by a forensic psychiatrist,

a forensic psychologist, or both, the public prosecutor asks the NIFP for one or two experts.

The NIFP approaches the expert(s) and in fact matches the request by the public prosecutor

and the supply of the available and specialised expert(s). The public prosecutor decides and

appoints the expert.

The types of assessment are as follows: A single psychological assessment may occur

on an outpatient basis when there is a suspicion of personality problems, or a single

psychiatric assessment may occur on an outpatient basis when there is a suspicion of disorders

of a specifically (medical) psychiatric nature. A psychological and psychiatric assessment

may occur on an outpatient basis (if a TBS order is on the cards). A TBS order with

112
Ibid., Pt. 19A.6. See also Law Commission, Expert Evidence in Criminal Proceedings in England and Wales,
LAW COM No 325 at [5.17].
compulsory care requires recently written and signed reports from two different mental health

experts. The results of the assessment may be set out in two separate reports or a single report

signed by both experts. A triple mental health assessment may occur on an outpatient basis,

and is carried out by a psychiatrist, a psychologist and a social worker, who collaborate to

produce a report. The results of the assessment may be set out in three separate reports or a

single report signed by all three experts. A multidisciplinary in-patient assessment may occur

in a (specialist) psychiatric hospital or at the Pieter Baan Centre (PBC). This centre of the

Ministry of Security and Justice is a forensic psychiatric hospital, not meant for treatment but

for forensic mental health observation and assessment. In cases of serious, strange or bizarre

offences, legally complex cases, cases with a lot of publicity, cases of (young) recidivists with

an ongoing or escalating pattern of offences, extra dangerous detainees or cases of detainees

with a high risk of escape, the assessment is likely to take place at the PBC where the

intensive observation and assessment takes six weeks. Other indications for assessment in the

PBC might be a strange or bizarre detainee, a strange or bizarre exchange between the

detainee and his social environment (eg network of incest, offence in a relationship), a

possible starting criminal career in a young detainee, an insufficient previous assessment, or

already a long-lasting tbs-measure, with the question of whether to extend the measure or not.

The assessment in the PBC is an integral part of a residential stay in a ward, on an involuntary

basis, by a multidisciplinary team of experts using a multi-method approach,113 in one of the

113
F Koenraadt and E Muller, “Hoofdstuk 8: Het psychologisch onderzoek en de daarop

gebaseerde rapportage pro Justitia” in HJC van Marle, PAM Mevis and MJF van der Wolf

(eds), Gedragskundige rapportage in het strafrecht (Deventer: Kluwer, 2nd ed., 2013)

pp.269–346.
four wards, each for eight detainees. A total of approximately 220 PBC reports are made per

year.114

In essence, an inpatient forensic mental health assessment differs little from an

outpatient assessment. The differences in the intensity of the assessment, the breadth of the

techniques brought to bear and the special division of responsibilities in the multidisciplinary

assessment team determine the nature of the two types of report, assessment on an inpatient or

on an outpatient basis. A psychologist or psychiatrist carrying out an outpatient assessment

visits the accused in a remand centre, juvenile custodial institution, psychiatric hospital or

mental institution: it is the expert who is mobile, not the person being assessed. If the accused

has not been remanded in custody and is therefore at large, the meeting usually takes place at

the expert’s practice or the office of the NIFP. Assessments on an outpatient basis generally

require three or four visits, sometimes a few more or less, depending on the nature and

severity of the problems.

In England and Wales, the verdict will depend on which expert witness successfully

supports or undermines a plea of insanity, automatism or unfitness to plead, by most

persuasively showing, or contradicting, the existence of a disorder that can be classified

according to DSM-IV, DSM-5 or ICD-10 classification.115 In the Netherlands, the verdict

does not depend on the expert’s being able to define the disorder on which the defence is

114
F Koenraadt, AWM Mooij and JML van Mulbregt (eds), The Mental Condition in

Criminal Law: Forensic Psychiatric and Psychological Assessment in a Residential Setting

(Amsterdam: Dutch University Press, 2007).

115
The Diagnostic and Statistical Manual of Mental Disorders (DSM) stems from the

American Psychiatric Association and is the Diagnostic and Statistical Manual of Mental

Disorders. The International Statistical Classification of Diseases and Related Health

Problems (ICD) stems from the World Health Organization.

based in any particular way. The existence of a classifiable disorder is not necessary and not

enough to arrive at a qualification of a “disorder in a legal sense”. It is not necessary because

there is no reason why a disorder that affects the capacity for careful consideration, but is not

classifiable, should not be viewed as a relevant disorder in the sense of the law; it is not

adequate because the DSM classifications, certainly in the field of personality disorders,

predominantly describe interaction strategies stipulated on the basis of external behavioural

criteria.116 Dutch criminal law, therefore, uses the open definition of mental disorder: whether

the offender is suffering from defective development or pathological disorder of the mental

faculties. In this broadly formulated criterion “defective development of the mental faculties”

relates (roughly) to problems and/or impairment in social, emotional, cognitive, sexual or

personality development and “pathological disorder” is related to severe psychiatric disorders

and conditions.

In practice, the court will rely heavily on the reports by forensic mental health experts,

but is not bound to follow that opinion. Crucial in the forensic mental health report is that it is

individually tailored. What the court needs to reach a fair and adequate verdict is information

about the specific case of this accused individual. When all information is integrated, the

accused is examined in his uniqueness and the forensic mental health expert(s) must assess

whether what is true on a group level also applies for this individual. The role of the

assessment and the report is to clarify whether a mental disorder is present and if so, whether

it can explain the offence alleged. The law requires causality between mental incapacity and

the offence (which is both a medical and a legal question) and case law has developed a

sliding scale of capacity to determine responsibility: undiminished, somewhat diminished,

diminished, highly diminished and total incapacity. However, whatever the degree of

116
F Koenraadt and A Mooij, “Mentally Ill Offenders” in M Boone and M Moerings (eds),

Dutch Prisons (Den Haag: BJu Legal Publishers, 2007) pp.167–186.

incapacitation, the disorder itself does not create an offence. To avoid a circular argument, the

building blocks of diagnosis should not be taken from the offensive behaviour itself.

Furthermore, it cannot be that an acquittal could cancel the diagnosis.

Such forensic mental health assessment goes beyond simply reaching a diagnosis. The

diagnostic classification as such says little about the severity and degree of disability implied

in the mental disorder. It is important to explain which aspects of the disorder lead to which

limitations in daily life. The forensic mental health expert must make clear how the disturbed

functions lead to any problems in any circumstances and, moreover, how this may have

contributed to committing the offence. To this end, he must answer the question whether, and

if so, which aspects of the disorder in these specific circumstances may have led to the person

in question being restricted in his freedom to determine his actions, and if so, to what extent.

Relations of this kind can only be revealed in an individualising assessment. The expert report

will therefore describe, first, the nature and severity of the mental disorder and the way and

extent to which it affects the capacity for careful consideration (freedom to determine one’s

will). Secondly, the report assesses how and to what extent the disorder has impacted the

offence charged. Of course, this does not always have to be done explicitly it can also become

implicitly evident from the description of the behavioural or psychopathological background

of the offence.117

The Dutch Experts in Criminal Cases Act (Wet deskundige in strafzaken) stipulates

that court experts must meet certain competency standards. It sets up a register to safeguard

competency. However, it is still possible to use an expert not listed in the register, although

the court must give reasons for doing so. Engaging one of the registered experts assumes that

the expert in question has the necessary professional skills in their field of expertise, outlined

117
A Mooij, Psychiatry as a Human Science: Phenomenological, Hermeneutical and

Lacanian Perspectives (Amsterdam/New York: Rodopi, 2006).

by the Board of Court Experts. Using the register is meant to increase the quality of the

judicial procedure by ensuring a reliable and consistent standard of professionalism.118 This

relieves the court from the burden of having to consider whether the expert is actually an

expert in the required field and whether the methods used are valid. Both are questions that

courts are not really competent to answer and usually arise only after prompting by the

defence, and have until now been governed by case law.119

VII. Conclusions

It would seem logical that the reliance on judicial decision-making/case law in England and

Wales in itself provides a mechanism that promotes case-by-case pragmatism and gives the

common law flexibility and the capability for change. Reliance on written codification in the

Netherlands, even given the interpretative powers of the Supreme Court, means that change is

slow and the law is not easily adaptable — the (political) legislative process being lengthy and

unpredictable. In the case of mental capacity, the opposite seems to be true. English law relies

on a very limited number of recognised defences, which circumscribes the role of experts by

requiring them to tailor their diagnosis to what the courts need to hear in legal terms, while

the very looseness of the mental disorder concept under Dutch criminal law and how this

relates to the role of the expert in informing the court of the individuality of the defendant,

seem to make Dutch law more flexible and more adaptable on a case-by-case basis. In the

field of mental health, at least, the common law would seem to force experts to define

conditions in a way that allows them to be translated into what the law and the courts require,

making of an empirical science a normative practice and precluding individualisation per

case. To a certain extent, that is, of course, also true in the Netherlands: law is a normative
118
Nederlands Register Gerechtelijk Deskundigen, available at http://www.nrgd.nl.
119
See eg HR 27 January 1998, NJ 1999, 404 (orthopaedic shoemaker decision) and HR 28

February 1989, NJ 1989, 748 (anatomically correct dolls decision).

business that reflects the cultural-historical values of a society, while psychology and

psychiatry are internationalised fields whose (changing) insights need not, and often do not,

coincide with established legal practice.

Indeed, in both countries, many legal problems are the same: the problematic legal

distinction between external and internal factors which will often make the difference

between compulsory hospitalisation or not; the fact that a jury (or judge) is dependent on

which expert seems most persuasive, with the Dutch court not bound by the expert’s opinion

(because it need not be convinced by it and will moreover take other factors into account); the

disposal of cases through compulsory hospitalisation orders also seems similar, reflecting

underlying notions — historically, more pronounced in Dutch criminal law doctrine — that

those who have no control over their will should not be punished, but that society should

nevertheless be protected from them. But there are many differences that appear related to the

differences in substantive law (eg the extensive defences of lack of or diminished capacity in

the Netherlands that cater to many different situations) and to the adversarial c.q. inquisitorial

structure of the trial. In an adversarial setting, the majority of the process happens in court

(before a jury), whereas the considered opinion of the expert in the inquisitorial system is

embedded in extensive pre-trial structures that are part of the justice system. Both have their

advantages, depending on one’s point of view. Dutch criminal process, with its impartial and

all-powerful prosecutor, and registered experts conferring before trial to reach a consensual

opinion — indeed, one collaborative report! — upon which the judge can rely, leaves little

room for a defendant to be considered as an autonomous subject at law, although it may boost

legitimacy that, in the Netherlands, depends on a high degree of trust in (the representatives

of) state power and its ability to deliver “the truth” and thus just verdicts. Public trust in the
Netherlands in political and social institutions is generally high.120 It is no coincidence that the

introduction of the expert-register in the Netherlands has coincided with diminishing public

trust in, and the public contestation of, the court system in general and a number of verdicts

and the experts on whose opinion they relied, in particular. The problem with this system is

that the individual defendant, faced with the powers of the state and its registered experts, has

little control over what happens at trial and thus over their own life.

As discussed previously, a great deal of work has been undertaken by the Law

Commission of England and Wales to establish the need for reform in relation to both the

defences of insanity and automatism and, latterly, fitness to plead (stand trial). Despite the

fact that the case for reform of both (related) areas has been well made, there appears to be a

lack of political will to make the necessary legislative changes, at least in the short to medium

term. In England and Wales the adversarial nature of the trial as a contest between equal

parties perhaps goes some way in explaining the “binary” nature of the concept of capacity

and the lack of a legal concept of partial capacity.121 Nevertheless, it remains an issue that

both the availability of defences and the question of a defendant’s fitness to plead are “all or

nothing” determinations with nothing available for the mentally vulnerable defendant whose

diminished capacity is insufficient to meet the required thresholds.

It is however noteworthy that, through incremental legislative and procedural changes,

and most recently the procedural rule changes relating to the reception of expert evidence in

criminal proceedings in England and Wales, there appears to have been a move towards

120
K Brants, “Trust, Cynicism and Responsiveness: The Uneasy Situation of Journalism in

Democracy” in C Peters and M Broersma (eds) Rethinking Journalism: Trust and

Participation in a Transformed Media Landscape (Abingdon: Routledge, 2013) pp.15–28.

121
De Than and J Elvin, “How Should the Criminal Law Deal with People Who Have ‘Partial

Capacity’?” (n.85) p.296.

adopting a quasi-inquisitorial approach to the determination of a defendant’s mental capacity,

with the expert witness playing a central role.

The receipt of expert evidence is now a statutory requirement of the insanity

defence122 and, where the medical evidence is uncontested, the judge will likely direct the jury

to return the special verdict.123 Expert evidence is a “practical necessity”124 in establishing a

diminished responsibility defence and, by extension, a defence of automatism based on a

medical condition (such as sexsomnia).125 The question of an accused person’s fitness to

plead has potentially seen the greatest move towards a quasi-inquisitorial process. The

determination is made by a judge in the absence of the jury and expert evidence is again a

statutory requirement with the court usually beholden to the “consensus of expert opinion”.126

Significant recent developments in the Criminal Procedure Rules (Pt.19) and the

associated CrimPD127 have sought to introduce a “procedural” reliability test. This places

much greater emphasis on the pre-trial process (usually the point at which an individual’s

fitness to plead is determined) as a means of identifying and dealing with issues of reliability

in the context of expert testimony. The rules now contain a non-exhaustive list of reliability

criteria against which the expert’s evidence may be tested or challenged. The rule changes

place an onus on the expert to identify problems/areas of uncertainty, provide for mechanisms

such as pre-trial meetings for experts to resolve issues (which reflect practices more

commonly seen in inquisitorial systems) and also reflect the idea that the expert has a duty to

122
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (n.106).
123
R v Brennan (n.108).
124
R v Dix; R v Bunch (n.107).
125
See the works cited in note 57.
126
Law Commission, Unfitness to Plead (n.70).
127
See the work cited in note 109.
the court that overrides any obligation to the person from whom they receive instructions or

by whom they are paid. The amended CrimPD, by encouraging experts to meet pre-trial and

to identify issues for the court is attempting to move experts away from the traditional

“defence expert v prosecution expert” approach and towards having the experts there

primarily to assist the court. It could well be the case that these rule changes further embed an

inquisitorial approach or element into the determination of a defendant’s mental capacity.

It remains the case that without legislative changes, both the courts and experts in

England and Wales are operating within the constraints of an anachronistic and binary

framework for dealing with defendants with diminished mental capacity. It is hoped that the

incremental introduction of seemingly quasi-inquisitorial elements may allow for a more

individualised assessment of the needs of particular defendants, as is seen in the Netherlands.

However, there is always the risk that the introduction of a strange (in this case quasi-

inquisitorial) element will not fit the overall structure of the process and could indeed

destabilise it.