Being unreasonable

Why are the mentally ill so very unreasonable?

This query was the shadowy underside of the question in R v G, R v J, [2008] UKHL 13, as to what constituted a reasonable excuse under the Terrorism Act 2000.

Under s.58 it is an offence to collect or make a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or to possess a document or record containing an offence of that kind. There is a statutory defence of reasonable excuse '“ the evidential burden on the defendant. The Act does not, in a realistic acceptance of the richness of behaviour, define what type of excuse may be reasonable.

Care and control

The history is singular. In 2005 G was sentenced as a young offender for non-terrorist offences, and was released on automatic license in 2006. Four days after release he was detained under s.136 of the Mental Health Act, which permits arrest where no offence has been committed or suspected, if a person is suffering from a mental disorder, in public, and is in need of 'care and control'. Under it, a person is taken to a place of safety for medical examination. In G's case, the place of safety was secure indeed '“ back to prison under immediate recall of his license.

Released again in February 2007, now an adult and a convert to Islam, he was arrested as he left the prison gates. The information he collected '“ all of it garnered in custody since his recall '“ included plans for making bombs, explosives textbooks, his own hand-drawn maps of an army base, and a manuscript plan of attack. Prison officers had found this material in his cell in successive searches, over a period of months.

In his first police interview he denied terrorist intent, admitting he had deliberately left the material in his cell for the prison officers to find on their four separate searches, and was 'winding them up' because they were whispering about him. He confided that they 'really hated that terrorist stuff'.

In his second interview he was floridly unwell, and a few days later he was transferred from custody to hospital. Diagnosed as psychotic, crown and defence experts agreed his illness triggered the offence '“ the 'whispering' he had heard were auditory hallucinations '“ and that he had collected the material together as a direct consequence of his illness. But, crucially, no doctor could say that the illness prevented him from forming the necessary intent '“ so no psychiatric defence was available to him.

Towards strict liability

The intent required for a s.58 offence is practically negligible and lurches towards strict liability '“ basically it is knowing that you have the material, and knowing the nature of it: there is no requirement that you positively intend it to be useful to a terrorist, far less that you intend to distribute, disseminate or act upon it. This was spelled out in G '“ 'in fighting something as dangerous and insidious as acts of terrorism, the law was justified in intervening... even if events were at an early stage or if the defendant's actual intention could not be established'.

Oddly enough, the material itself has to have more of a guilty mind than the person caught with it. Section 58 material must be of a type to raise a reasonable suspicion that it is intended to be used to assist in the preparation or commission of an act of terrorism; material for which an explanation is required. If it is of this type, and possession is proved, the only defence is reasonable excuse.

The Court of Appeal in K (2008, 2 WLR 1026) had generously interpreted the statutory defence: a reasonable excuse meant simply that the document was possessed for a purpose other than terrorism, and it didn't matter whether that purpose was a breach of civil or criminal law. Under K a chap who established that the gelignite (a type of dynamite) and plans of the Bank of England in his possession were for a commercial robbery and not an act of terrorism was entitled to be acquitted '“ if he could cope with the immediate arrest for self admitted conspiracy to rob, that is.

The House of Lords was not having it. K was wrongly decided; excuses must be objectively reasonable '“ and winding up prison officers is not what Parliament intended.

As for G's mental condition, although his actions were a direct consequence of it, he was not insane under M'Naghten and was responsible for his actions. G will be tried later, his defence of reasonable excuse ruled out.

Archaic and inhumane

And this is where I start squeaking. But he was ill! His actions came from his illness! Psychotic defendants do part company with reason '“ that is what their illness does to them! But our pre-psychiatry rules are ancient and inflexible, as per M'Naghten 1843 and its elderly brother, Pritchard 1836, which assesses unfitness to plead.

Despite cascading criminal legislation since 1997, despite a revised Mental Health Act and a new Mental Capacity Act, our rules condemn mentally disordered offenders to an archaic and inhumane system. Put as crudely as the system deserves: if you think you are a banana, the judge is an orange, and you don't know if it is Tuesday or Christmas, you can claim insanity or unfitness to plead. If not, it is business as usual and your illness affords you little protection and no defence. It might keep you out of prison and into hospital, or get you short breaks in the trial, but not much else.

Luckily, the Law Commission is onto this, and is looking at fitness to plead and the insanity defence. They ran a conference recently where psychiatrists and lawyers discussed a new capacity test modelled on decisional competence, as in the civil law, and the creation of new tools for psychiatrist assessment of it. Hopefully they will achieve new rules for a modern system where participation in increasingly complex trials is a right for all. And it will be a great relief to get rid of Mr M'Naghten and the Victorian questions in his case. We have quite enough insanity in the CJS without him.