MENTALLY DISORDER AND UK LAW

Mentally Disorder and UK Law

Mentally Disorder and UK Law

Mental Disorder Offenders

The purpose of the criminal justice system is an essential consideration when addressing this issue. Though the issues concerned are to a large degree those of moral philosophy, and as such capable of supporting varying degrees of opinion and interpretation, in broad terms the criminal law performs four primary functions: those of retribution, deterrence, incapacitation and rehabilitation.

Discussion

The principle of retribution is undoubtedly the most open to question in a modern context, but essentially it proceeds on the basis that it is morally acceptable to hate criminals and that punishment gives society an avenue through which to express this sentiment . This public denunciation of crime acts as a deterrent to others, defines the parameters of normative behaviour, and prevents individual retribution by providing a collective mechanism for satisfying victims' desire for vengeance. This line of argument however works on the principle that the offender is seen to be getting their 'just desserts'; the punishment must fit the crime. In this context the punishment of those suffering from mental illness achieves little, as few people would feel any satisfaction at inflicting punishment upon those who are not truly responsible or culpable for their actions. It should be noted however that this is at heart a moral issues and there are other possible approaches.

The principle of rehabilitation expands upon this last point: if the perpetrator of a crime is ever to be reintegrated into society and cured of their antisocial behaviour, the treatment they receive must inevitably address their inherent needs. More often than not the prison environment lacks the facilities to treat those suffering from mental disorders. Though there is scope for sentencing to take account of moral culpability this ought not to disguise the fact that the need to rehabilitate offenders requires particularly acute consideration (albeit often in conflict with the retributive and deterrent functions of the criminal law). It is important to remember that the criminal law prohibits acts and circumstances, not desires or motivation.

However, the law has long since recognised that there is nothing to be gained in punishing those who had no conscious will to commit prohibited acts. In the sphere of homicide defences this issue has received extensive consideration and is of relevance in the areas of diminished responsibility, insanity, and following Smith (Morgan) [2000] 3 WLR 654 to provocation. According to Home Office statistics about 50% of those convicted of manslaughter due to diminished responsibility receive hospital orders under the Mental Health Act 1983, s.37. As can be seen from this, the criminal justice system does have the facility to remove the mentally ill from the prison system, albeit that they do not necessarily avoid the stigma of criminal liability.

The defence of Diminished responsibility is set out in S2 Homicide Act 1957:

"Where a person kills…he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or ...