The finding of the panel which observed Oscar Pistorius, reported by Prosecutor Gerrie Nel, is both surprising, and unsurprising – it is both right and wrong. This is because nobody can say whether Oscar Pistorius suffered, at the relevant time (of the alleged offence), from a legally significant “mental illness or defect”. The concept is undefined in our law. The effect is that no one can know whether a “mental illness or defect” was present. The first problem is that a “mental illness or defect” is a legal concept, distinguished in law, from “mental disorders” that are the concern of psychology and psychiatry. The law insists that a “mental disorder” does not necessarily amount to a “mental illness or defect”. Courts must ultimately decide – and yet there exists no criteria upon which to base this decision.
I attach a working draft of a paper that sets out this argument at length – constructive comments welcome. It argues that the requirement of “mental illness or defect” in our law, as a threshold requirement for a defence of “pathological incapacity” (the insanity defence) is almost entirely meaningless, or that such meaning as it has is unfounded, ill considered, or a distraction, and that it is, is in any event, apparently redundant. Nobody can say whether a “mental illness or defect” was present or not. I argue that we must face this problem, and that the best solution is to abolish the requirement from our law.
The defence of pathological criminal incapacity requires, as a threshold criterion, that an accused suffered from a ‘mental illness or defect’ at the relevant time. Analysis of what this threshold criterion means reveals that it is almost entirely meaningless, or that such meaning as it has is unfounded, ill considered, or a distraction, and is in any event, apparently redundant. It seems instead that the criterion is giving expression to surreptitious fears regarding the dangerousness of persons who may succeed with this defence. I recommend that we drop the criterion as intellectually dishonest and that we no longer distinguish pathological from non-pathological incapacity and that we ask what appears to be the real question: about dangerousness. We can ask this question in the correct context, that of the civil law which is already designed to address this question. This enquiry could follow automatically upon a successful incapacity defence. Finally I argue that there are several associated benefits to doing this, including that this would allow for all persons who claim incapacity to be treated equally, that the dubious ‘reverse burden’ placed on accused persons who attribute their incapacity to a mental illness or defect, which is not placed on those who claim incapacity but do not attribute it to a mental illness or defect, is withdrawn. Also it will introduce further equality in that the dangerousness of all accused who succeed with an incapacity defence will be considered. Currently dangerousness is surreptitiously presumed in respect of those who attribute their incapacity to a mental illness or defect, but it is not a question which is currently considered in respect of accused who do not attribute their incapacity to a mental illness or defect – and who currently receive, if successful, an unqualified acquittal.