A terrible responsibility: Murder and the insanity defence in England, 1908–1939

Abstract

In 1901, Sir Herbert Stephen, whose father had written the most influential legal work on criminal insanity (Stephen, 1883), greeted a paper by the leading medical writer on the subject with the remark that ‘we have got pretty well to the end of the old quarrel between you doctors and us lawyers as to the effects of insanity upon legal and criminal responsibility’ (discussion of Mercier, 1901, p. 523). At the time, such optimism appeared justified (Ward, 1997, 1999). The rules laid down inM’Naghten’s case remained law: to establish a defence of insanity, it had to be shown that the accused, as a result of a disease of the mind, did not know the nature and quality of his or her acts, or did not know they were wrong. But judges and juries enjoyed such latitude in interpreting the rules, and medical witnesses were given such freedom to suggest how the rules might be stretched to find a defendant insane, that the Medico-Psychological Association (MPA, 1896) was able accept that in practice, the rules produced little real injustice. If a defendant whom orthodox medical opinion would regard as insane was convicted, the ‘bureaucratic mercy’ of the Home Office (Chadwick, 1992) could be depended upon to ensure that the sentence of death was not carried out. The old quarrel might have been over, but a new one was about to begin. Prison medical officers were playing an increasing role in criminal trials, and were beginning to displace the local asylum superintendents to whom the Director of Public Prosecutions had been accustomed to turn for an impartial opinion. This would push the latter, and the independent lunacy specialists, increasingly into the arms of the defence (Ward, 1997). The ‘dirty tomfoolery’ of psychoanalysis (Mercier, 1915) had made little impression in the England of 1901 but was to become an increasing threat to the conservative medical consensus (Clark,