To diagnose a serial killer

[John G]

Thanks John, GUT

I've always thought that if Kosminsky had come to trial (no, I really don't think he was the Ripper), he would have been considered unfit to plead, thus getting the "witness" off the hook (if indeed he did refuse to testify for the reasons given, which I don't believe either), but just for argument's sake, surely someone in his condition would be deemed unfit, especially as he had been in that condition for some time. (Obviously it's not too hard to turn oneself into a gibbering idiot in front of a jury, but I imagine past history would be checked).

Hope I don't sound too muddled!

Best wishes
C4

Hi C4,

You may be right. The relevant authority at the time, which I believe is still good law, would be R v Pritchard (1836). The test was set out by Alderson B:

To comprehend the course of proceedings on the trial so as to make a proper defence;

to know that he might challenge any juror to whom he may object;

to comprehend the evidence; or

give proper instructions to his legal representative.

Thus in R v Pritchard the defendant was a deaf mute. Alderson B set this test: " There are three points to be enquired into:-first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence-to know that he may challenge any of you to whom he may object-and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation."

Of course, in 1888 this would be a matter for the jury, not the judge, to decide. Thus, Alderson B, directed the jury in Pritchard that they were to find him unfit to plead if in their opinion there was no certain mode of communicating the details of the trial to the prisoner (remember he was a deaf mute), so that he could clearly understand them and be able properly to make his defence to the charge.

"B" by the way, in Alderson B, stands for Baron. So he was quite noble!

I assume that "mute of malice" meant pretending to be mute. So presumably in Kosminski's case the equivalent question would be whether he was merely pretending to be mentally ill.

[curious4]

Got my elephant's child's head on today. Last question is the last, I promise :-)

Best wishes
C4

[curious4]

Yes, they knew how to administer justice in those days-no getting distracted with a load of scientific nonsense!

In English Law, if a defendant is found unfit to plead by virtue of mental disability, then the jury proceeds under section 4A (2) of the Criminal Procedure (Insanity) Act, 1964 as substituted by s2 of the Criminal Procedure (insanity and unfitness to plead) Act 1991. Under this provision the jury considers the actus reus of the offence, I.e. did the defendant commit the acts they are accused of. There is no requirement to consider the mental element of the crime (mens rea): see R v Antoine (2000).

If the jury find the defendant did commit the act, I.e. struck the blow, then the judge makes one of the following orders:

A Hospital Order, under s37, Mental Heath Act 1983, with a restriction order under s41 if necessary;

A supervision Order;

An absolute discharge.

Decisions as to whether a defendant is fit to plead are now made by a judge, not a jury: s24 of the Domestic Violence, Crimes and Victims Act 2004. The judge must base his decision on the written or oral evidence of two or more registered medical practitioners, at least one of whom must be approved under s12 Mental Health Act 1983.

Thanks John, GUT

I've always thought that if Kosminsky had come to trial (no, I really don't think he was the Ripper), he would have been considered unfit to plead, thus getting the "witness" off the hook (if indeed he did refuse to testify for the reasons given, which I don't believe either), but just for argument's sake, surely someone in his condition would be deemed unfit, especially as he had been in that condition for some time. (Obviously it's not too hard to turn oneself into a gibbering idiot in front of a jury, but I imagine past history would be checked).

Hope I don't sound too muddled!

Best wishes
C4

[John G]

No messing about there then! But how would someone be found unfit to plead?

Best wishes
C4

Yes, they knew how to administer justice in those days-no getting distracted with a load of scientific nonsense!

In English Law, if a defendant is found unfit to plead by virtue of mental disability, then the jury proceeds under section 4A (2) of the Criminal Procedure (Insanity) Act, 1964 as substituted by s2 of the Criminal Procedure (insanity and unfitness to plead) Act 1991. Under this provision the jury considers the actus reus of the offence, I.e. did the defendant commit the acts they are accused of. There is no requirement to consider the mental element of the crime (mens rea): see R v Antoine (2000).

If the jury find the defendant did commit the act, I.e. struck the blow, then the judge makes one of the following orders:

A Hospital Order, under s37, Mental Heath Act 1983, with a restriction order under s41 if necessary;

A supervision Order;

An absolute discharge.

Decisions as to whether a defendant is fit to plead are now made by a judge, not a jury: s24 of the Domestic Violence, Crimes and Victims Act 2004. The judge must base his decision on the written or oral evidence of two or more registered medical practitioners, at least one of whom must be approved under s12 Mental Health Act 1983.

[GUT]

No messing about there then! But how would someone be found unfit to plead?

Best wishes
C4

Unfit to plead is a different kettle of fish to insanity.

It requires an inability to instruct your legal representatives, usually due to mental problems (even a head injury during arrest) that don't need to have been present at the time of the offence.

[curious4]

An indication as to whether an insanity plea by JtR might have been accepted by a nineteenth century jury can perhaps be discerned by the Charles Fooks case. Fooks was charged with murder in 1863, but evidence seemed to suggest that he suffered from paranoid and sadistic delusions. However, the judge, Mr Sergeants Shee, directed: "You are not to be deprived of the exercise of your common sense because a gentleman comes from London and tells you scientific sense." The jury returned a verdict of murder and the defendant was hanged.

No messing about there then! But how would someone be found unfit to plead?

Best wishes
C4

[John G]

An indication as to whether an insanity plea by JtR might have been accepted by a nineteenth century jury can perhaps be discerned by the Charles Fooks case. Fooks was charged with murder in 1863, but evidence seemed to suggest that he suffered from paranoid and sadistic delusions. However, the judge, Mr Sergeants Shee, directed: "You are not to be deprived of the exercise of your common sense because a gentleman comes from London and tells you scientific sense." The jury returned a verdict of murder and the defendant was hanged.

[curious4]

Sorry missed the lat sentence last time, I have real doubts about Jack getting off under MacNaughten, as he did hide the most important thing himself, possible (probably??) indicating he knew what he was doing was Wong.

Sorry, my fault, l'esprit de l'escalier, only here you get to go back upstairs! Not wit, though, just thinking of something else I wanted to say :-).

Best wishes
C4

[GUT]

Hi GUT,

Yes, I think you noticed my deliberate mistake! Of course, hyperglycaemia, not taking insulin, might allow for an insanity defence, because this a condition caused by diabetes, I.e. naturally occurring high blood sugar rather than an external factor: R v Hennessey (1989). On the other hand, hypoglycaemia, caused by taking too much insulin, or not eating sufficient food, would not allow for an insanity defence, because this condition is reasonably foreseeable and caused external factors: R v Quick 1957 ).

Hypo may, they can occur naturally, to do with the pancreas, wifey suffered then fairly frequently before developing pancreatitis.

[GUT]

Hello GUT

That really does explain things clearly. Wow!
Thanks.

Then I suppose Jack would be deemed insane, as he made no effort to hide anything. (Except himself of course).

Best wishes
C4

Sorry missed the lat sentence last time, I have real doubts about Jack getting off under MacNaughten, as he did hide the most important thing himself, possible (probably??) indicating he knew what he was doing was Wong.

[RivkahChaya]

Hi GUT,

Yes, I think you noticed my deliberate mistake! Of course, hyperglycaemia, not taking insulin, might allow for an insanity defence, because this a condition caused by diabetes, I.e. naturally occurring high blood sugar rather than an external factor: R v Hennessey (1989). On the other hand, hypoglycaemia, caused by taking too much insulin, or not eating sufficient food, would not allow for an insanity defence, because this condition is reasonably foreseeable and caused external factors: R v Quick 1957 ).

Unless of course, you have reactive hypoglycemia, where sometimes your pancreas release more insulin than is needed for what you have eaten.

Also, in the US, in at least some states, there is as "irresistible impulse" component of the insanity defense, where a person may know what he is doing is considered wrong, but may not be able to control the behavior. Jeffrey Dahmer tried this as a defense, and lost. It may work for assault where one throws a single punch, but probably won't work for a complex murder.

[curious4]

Hi C4,

Not necessarily. Thus, under the McNaughton Rules the accused has to be "labouring under such a defect of reason, from disease of the mind [not to be confused with disease of the brain] and not to know the nature and quality of the act he was doing , or if he did know it, that he did not know he was doing what was wrong."

So, an example might be stabbing someone with a bread knife, but thinking it was a banana. Kicking someone whilst having an epileptic fit would also allow for an insanity defence: R v Sullivan (1984). However, in R v Windle (1952), a man killed his suicidal wife. He then said, "I suppose they will hang me for this." That proved that he knew what he was doing was legally wrong, even though he might have believed it to be morally right. Insanity was therefore not available as a defence.

In the case of JtR I would argue that he must have known the "nature and quality of the act he was doing", at least on the basis that he appeared to demonstrate a degree of skill when mutilating his victims; and that his crimes also indicated a basic degree of planning (although if Lynn Cates' argument against Issenschmidt proves to be correct, I think he would probably be legally insane!). The question therefore is whether he realized that murdering and mutilating women was against the law! Well, as he seemed to take basic precautions against getting caught, I would have thought that he must have. Therefore, not legally insane.

Of course, today a defence of diminished responsibility would be available, but not in 1888: together with provocation, this defence, to a charge of murder, was introduced by the Homicide Act, 1957.

Thank you John (and GUT). This is really interesting.

Best wishes
C4

[belinda]

So - completely sane then.

You have to take it case by case. I'm talking about the legal definition of sanity. If they were all deemed insane none of them would ever get to trial

[John G]

Hello GUT

That really does explain things clearly. Wow!
Thanks.

Then I suppose Jack would be deemed insane, as he made no effort to hide anything. (Except himself of course).

Best wishes
C4

Hi C4,

Not necessarily. Thus, under the McNaughton Rules the accused has to be "labouring under such a defect of reason, from disease of the mind [not to be confused with disease of the brain] and not to know the nature and quality of the act he was doing , or if he did know it, that he did not know he was doing what was wrong."

So, an example might be stabbing someone with a bread knife, but thinking it was a banana. Kicking someone whilst having an epileptic fit would also allow for an insanity defence: R v Sullivan (1984). However, in R v Windle (1952), a man killed his suicidal wife. He then said, "I suppose they will hang me for this." That proved that he knew what he was doing was legally wrong, even though he might have believed it to be morally right. Insanity was therefore not available as a defence.

In the case of JtR I would argue that he must have known the "nature and quality of the act he was doing", at least on the basis that he appeared to demonstrate a degree of skill when mutilating his victims; and that his crimes also indicated a basic degree of planning (although if Lynn Cates' argument against Issenschmidt proves to be correct, I think he would probably be legally insane!). The question therefore is whether he realized that murdering and mutilating women was against the law! Well, as he seemed to take basic precautions against getting caught, I would have thought that he must have. Therefore, not legally insane.

Of course, today a defence of diminished responsibility would be available, but not in 1888: together with provocation, this defence, to a charge of murder, was introduced by the Homicide Act, 1957.

[John G]

That was the "Nutshell" version, the one mentioned earlier with hyperglycemia (or was it hypo) would have been because such a condition can cause confusion and obviously t was accepted that the confusion caused was severe enough to interfere in capacity to understand right from wrong.

One exception is when you have bough on the inability yourself (in most jurisdictions anyway) by drugs or alcohol.

Hi GUT,

Yes, I think you noticed my deliberate mistake! Of course, hyperglycaemia, not taking insulin, might allow for an insanity defence, because this a condition caused by diabetes, I.e. naturally occurring high blood sugar rather than an external factor: R v Hennessey (1989). On the other hand, hypoglycaemia, caused by taking too much insulin, or not eating sufficient food, would not allow for an insanity defence, because this condition is reasonably foreseeable and caused external factors: R v Quick 1957 ).