Insanity and Diminished Responsibility

The defence of insanity may be raised if the defence is of the opinion that the child soldier was too disordered at the time of the commission of the offence.222 The rules and the requirements of the insanity defence in England were laid down in M’Naghten’s Case in 1843.223 In this case, the accused, Daniel M’Naghten, assaulted and fatally

222 See Ashworth A and Horder J Principles of Criminal Law 7ed (2013) 141; Card R Card, Cross and Jones Criminal Law 20ed (2012) 622-623; Ormerod D Smith and Hogan’s Criminal Law 13ed (2011) 294- 296.

223 M’Naghten, House of Lords, 10 CI. & F. 200, 8 Eng. Rep. 178 (1843). Also see Ashworth A and Horder J Principles of Criminal Law 7ed (2013) 142; Burchell J Principles of Criminal Law 4ed (2013) 272; Card R Card, Cross and Jones Criminal Law 20ed (2012) 623; Ormerod D Smith and Hogan’s Criminal Law

13ed (2011) 295; Yannoulidis S Mental State Defences in Criminal Law (2012) 9-14. For a

comprehensive discussion of the defence of insanity in English law, see Law Commission Insanity and Automatism: A Scoping Paper (2012). Yeo presents an enlightening study on the defence of insanity

Windell Nortje LLD Thesis ₁₂₉ wounded the deceased, Edward Drummond.224 He pleaded not guilty and contended that he suffered from a mental condition at the time of the commission of the

offence.225 The legal question was whether the accused at the time of the commission of the offence, knew and understood that he was doing wrong.226 Moreover, was the accused aware that the commission of a wrongful offence is unlawful and was he able to distinguish between right and wrong? The court then established what a person had to prove in order to raise the defence of insanity: (1) that at the time of the commission of the offence the accused was ‘labouring under such a defect of reason, from disease of mind’ (2) that he did not know what he was doing (3) or if he knew what he was doing, he did not know that it was wrong.227

First, it has to be proven that at the time of the commission of the act, the child soldier did not have the ability to reason as a result of a mental illness. This ‘defect of reason’ also refers to a deprivation of reasoning power and does not apply to a state of confusion or absent-mindedness.228 The mental illness or disease of mind refers to a condition that affects the functioning of the mind.229 Secondly, a child soldier can raise the defence of insanity if he did not know what he was doing at the time. In R v Clarke, the accused stole a few goods in a grocery store, without knowing what she was actually doing, because she suffered from severe depression at the time, which caused the

in commonwealth nations. See Yeo S ‘The Insanity Defence in the Criminal Laws of the

Commonwealth of Nations’ (2008) Singapore Journal of Legal Studies. 224 M’Naghten, House of Lords, 10 CI. & F. 200, 8 Eng. Rep. 178 (1843). 225 M’Naghten, House of Lords, 10 CI. & F. 200, 8 Eng. Rep. 178 (1843). 226 M’Naghten, House of Lords, 10 CI. & F. 200, 8 Eng. Rep. 178 (1843).

227 M’Naghten, House of Lords, 10 CI. & F. 200, 8 Eng. Rep. 178 (1843). Also see Ashworth A and Horder J Principles of Criminal Law 7ed (2013) 142; Burchell J Principles of Criminal Law 4ed (2013) 272; Card R Card, Cross and Jones Criminal Law 20ed (2012) 623; Kemp G (et al) Criminal Law in South Africa

2ed (2015) 159; Ormerod D Smith and Hogan’s Criminal Law 13ed (2011) 295.

228 R v Clarke (1972) 56bCr App Rep 225. Also see Ashworth A and Horder J Principles of Criminal Law

7ed (2013) 142; Card R Card, Cross and Jones Criminal Law 20ed (2012) 625; Ormerod D Smith and Hogan’s Criminal Law 13ed (2011) 296; Yannoulidis S Mental State Defences in Criminal Law (2012) 13-14.

229 See Ashworth A and Horder J Principles of Criminal Law 7ed (2013) 142-143; Burchell J Principles of Criminal Law 4ed (2013) 274-275; Card R Card, Cross and Jones Criminal Law 20ed (2012) 625; Kemp G (et al) Criminal Law in South Africa 2ed (2015) 159; Ormerod D Smith and Hogan’s Criminal Law

13ed (2011) 296; Yannoulidis S Mental State Defences in Criminal Law (2012) 11-12.

Windell Nortje LLD Thesis ₁₃₀ accused to do things without her knowing of it.230 The accused had no intention to steal the goods and the court ruled that she was not criminally responsible for the offence. Thirdly, even if the child soldier knew what he was doing, he can still raise the defence of insanity if he was unable to distinguish between right and wrong at the time of the commission of the offence. Therefore, if a child soldier commits an offence, without knowing that it was wrong to commit an unlawful offence, he will not be criminally responsible for the offence. Medical evidence is crucial to determine whether the child soldier suffered from a mental illness during the commission of the crime, while the court plays an important role in applying the rules as laid down in M’Naghten’s Case.231 If the defence of insanity is raised during the trial of a child soldier for the commission of crimes under international law, the defence will have to prove that the juvenile has invoked the three grounds of the defence of insanity set out in the English law. In sum, the defence will have to prove that the child soldier for example was suffering from a mental disease and at the time of the commission of the offence did not know what he was doing and that the commission of the crime under international law was wrong. Many of these child soldiers are forcefully recruited and this leaves an emotional and psychological scar on the child. Thus, a thorough psychological examination of the juvenile’s experiences during his stay at an armed group is required in order to determine whether the juvenile suffered any kind of mental disease.

Diminished responsibility is regulated by Section 52(2)(1) of the Coroners and Justice Act 2009.232 It can be raised as a partial defence when the accused who is accused of

murder was suffering from an abnormality or mental functioning that substantially impaired his ability to understand his actions, form a rational judgment and to exercise

230 R v Clarke (1972) 56 Cr App Rep 225.

231 See Ashworth A and Horder J Principles of Criminal Law 7ed (2013) 142; Card R Card, Cross and Jones Criminal Law 20ed (2012) 624; Ormerod D Smith and Hogan’s Criminal Law 13ed (2011) 296. 232 The Act came into force on 25 July 2013. See further Ashworth A and Horder J Principles of Criminal

Law 7ed (2013) 268; Card R Card, Cross and Jones Criminal Law 20ed (2012) 249; Ormerod D Smith and Hogan’s Criminal Law 13ed (2011) 527.

Windell Nortje LLD Thesis ₁₃₁ self-control at the time of the commission of the offence.233 Under English law,

diminished responsibility is only available to reduce a charge of murder to

manslaughter.234 Consequently, if a child soldier commits a war crime but it is decided by the Court that he had diminished responsibility at the time of the offence, the charge will be reduced to manslaughter and he will also receive a reduced sentence.