Ambiguityn of the Borders of Insanity in Criminal Liability
Ahmed Ali Hamo, John Gatwech Lul
كلية القانون-جامعة النيلين · السودان
This subject, the Ambiguity of the Borders of Insanity in determiningthe extent of criminal liability has ever since been a controversial and athorny issue for courts and medical or psychiatric experts. This havingbeen the case since 1843 and.even before that time, I thought itworthwhile making a thorough research to find out why should thatcontroversy persist at all times despite the judicial and psychiatricadvancements achieved over all these years, and hence this thesiswherein I also made suggestions to solve the riddle.It has never been within the capability of judges, lawyer andpsychiatrists to draw a definite line separating the completely insanefrom\ the partially insane so as to be able to know exactly whether theformer can be completely absolved from any criminal liability if the actcomplained of has been proved to have taken place at the time theaccused was under that state of mind; while the latter be held onlypartially responsible for the acts committed in that half-insane state ofmind. Even the sane may be mistaken for the half-insane when hisbehavior at the time of the act is suggestive of some extent of insanityor mental disorder and vise versa. Therefore, there were cases wherehalf-insane persons had to be sentenced to death mistaking their state ofmind for sound ones.A certain Barakia Wajo must have been one victim of such mistakes asa result of having no definite formula for knowing where the line lies. Itis because of such possibility of mistaking one state of mind foranother. That is what necessitated this work, hoping that I may be ableto show the whole world how to be exact in drawing the line. Thisproved difficult although I believe I have added something positivetowards a future possible solution as indicated in the two of the threepoints I made towards the conclusion of chapter five. I say two,because the third one is merely an admission that where the line lies isdifficult to define as yet while the first and the second are suggestive ofa solution for a uniformity of the decisions in similar circumstances.The first of these is that the principle of ‘the benefit of doubt’ shouldhave full consideration in the defense of insanity. The secondsuggestion is that ‘partial insanity’ must not be taken in contrast with‘complete insanity’ and it must be understood that temporary insanity isnot is itself (per se) indicative of diminished responsibility since it maybe unlike partial, so severe as to amount or reach the extent of completeinsanity. . 'These conclusions were arrived at after considering what the definitionof insanity is; and after taking into account the historical background ofthe legal tests as well as whether it is a medical or a legal concept. Theconfusion caused by the use of such words as ‘insanity’ and ‘mentaldisorder’ has a significant bearing to the confusion and lack ofuniformity in specifying the extent of criminal responsibility; andlikewise the question of neutrality of medical experts. It is undoubtedlytrue that one of the problems that causes the persistent controversy inthe issue of insanity when the courts are to decide the extent of theresponsibility of the insane or that the accused is not even insane at allis tlle partial position taken in most cases by the psychiatrists. Thisunfortunately came to be known as the ‘battle of the experts’ where anexpert frequently takes side with the one who retained him or calledhim as his witness. This artificially created situation wherebyconflicting experts opinion is intentionally or otherwise given by theopposing psychiatrists confuse the courts more. Therefore, the courtshaving this in mind and considering the possibility of scientific errorscame to believe that there could be no fair finding unless insanity forthe purpose of criminal responsibility is considered as a legal concept.This caused a tug of war between the medical experts (psychiatrists)and the courts. The courts for the time being have won this tug of war.So, insanity is now considered as a legal concept and not a medical onealthough medical opinion is still to be sought by the court and given itsdue consideration or evidential value.In the Sudan, the battle of experts was experienced in the case of AwadElKarim Mohamed Ali Bakkar in 1982 when each expert or each teamon each side gave contradictory expert evidence in favour of either thedefense or the prosecution —i.e. allying with the side which called themas their witnesses. The court as usual had to consider insanity in thiscase to be a legal and not a medical concept. This case is just anexample about what is known as the battle of the experts.Generally speaking, the psychiatrists have not been accurately perfectin setting lines to divide or categorise insanity according to the degreesof severity, and since the difference between the degree of insanity ormental disorder is the formula by which it is decided who should bepunished and how severe should that punishment be, it becomesimperative for the courts to step in and reach adecision in whateverway they think just by trying to pin point the indefinable line thatseparates different states of mind and punishment are decidedaccordingly.The less severe punishment is for the diminished responsibility asaresult of a less severe insanity or mental disorder, definitely the reasonfor deciding that insanity is a medical concept is because judges andlawyers have their training based on the importance of justice, which isin turn based on necessity of impartiality. This kind of training makesmost of thejudges unlike others never to depart from these ethics. Butthis is not to say that other professionals do not completely observe theethics of their jobs but comparatively, I maintain that courts are moreadhesive to the ethics and principles of law which prohibit partiality.Were courts to have the complete technical know~how to find out witha scientific precision the extent to which one is insane, there wouldhave been no problem of deciding who is to be responsible criminallyand to wl1at extent?In the course ' of discussing criminal responsibility with respect to actsof insane people, I immediately found that it is necessary to mentionthe psychiatric types of mental disorder. However, it is not the work ofa judge to enumerate all types of such disorder, how many they are orwhat their characteristics are, since this is the work of a psychiatrist. Atany rate, I had to identify which one is usually the cause of insanity ormental disorder, which affects criminal responsibility. I found that thebest known among then are psychoses, neuroses, organic brain disorderand then the congenital intellectual deficiency. The most severe ofthese being mostly from psychoses —and that is the type known asschizophrenia. The other most controversial state of mind is thepsychopathic personality, which develops from neuroses.This thesis is a comparative study based mainly on three jurisdictionswhich are (1) England (2) United States of America and (3) The Sudan.The law of insanity regarding these three countries has been discussedin this work with some kind of concentration and has been criticallyanalyzed. It has to be noted that the known legal tests in this fieldoriginated, in England and United States of America. The Sudan andother countries copied them. However the Sharia law claimsprecedence in a general sense and the Sudanese courts after theapplication of the sharia law had to adjust themselves to the shariaconcept which is not really very different from what the law used to bebefore 1983 or the secular law. I then compared and discussed the bestknown tests to see which one can solve the knotted problem facing uswith respect to law of insanity. But I found that none of them offers apermanent solution free of errors; but it may be said that M’NagtenRules have not failed to address the issue effectively.