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Title: ambiguity of the borders of insaity in criminal liability
Authors: John Gatwech Lul
Keywords: criminal liability
Issue Date: 2003
Publisher: Neelain University
Abstract: ABSTRACT This subject, the Ambiguity of the Borders of Insanity in determining the extent of criminal liability has ever since been a controversial and a thorny issue for courts and medical or psychiatric experts. This having been the case since 1843 and.even before that time, I thought it worthwhile making a thorough research to find out why should that controversy persist at all times despite the judicial and psychiatric advancements achieved over all these years, and hence this thesis wherein I also made suggestions to solve the riddle. It has never been within the capability of judges, lawyer and psychiatrists to draw a definite line separating the completely insane from\ the partially insane so as to be able to know exactly whether the former can be completely absolved from any criminal liability if the act complained of has been proved to have taken place at the time the accused was under that state of mind; while the latter be held only partially responsible for the acts committed in that half-insane state of mind. Even the sane may be mistaken for the half-insane when his behavior at the time of the act is suggestive of some extent of insanity or mental disorder and vise versa. Therefore, there were cases where half-insane persons had to be sentenced to death mistaking their state of mind for sound ones. A certain Barakia Wajo must have been one victim of such mistakes as a result of having no definite formula for knowing where the line lies. It is because of such possibility of mistaking one state of mind for another. That is what necessitated this work, hoping that I may be able to show the whole world how to be exact in drawing the line. This proved difficult although I believe I have added something positive towards a future possible solution as indicated in the two of the three points I made towards the conclusion of chapter five. I say two, because the third one is merely an admission that where the line lies is difficult to define as yet while the first and the second are suggestive of a solution for a uniformity of the decisions in similar circumstances. The first of these is that the principle of ‘the benefit of doubt’ should have full consideration in the defense of insanity. The second suggestion is that ‘partial insanity’ must not be taken in contrast with ‘complete insanity’ and it must be understood that temporary insanity is not is itself (per se) indicative of diminished responsibility since it may be unlike partial, so severe as to amount or reach the extent of complete insanity. . ' These conclusions were arrived at after considering what the definition of insanity is; and after taking into account the historical background of the legal tests as well as whether it is a medical or a legal concept. The confusion caused by the use of such words as ‘insanity’ and ‘mental disorder’ has a significant bearing to the confusion and lack of uniformity in specifying the extent of criminal responsibility; and likewise the question of neutrality of medical experts. It is undoubtedly true that one of the problems that causes the persistent controversy in the issue of insanity when the courts are to decide the extent of the responsibility of the insane or that the accused is not even insane at all is tl1e partial position taken in most cases by the psychiatrists. This unfortunately came to be known as the ‘battle of the experts’ where an expert frequently takes side with the one who retained him or called him as his witness. This artificially created situation whereby conflicting experts opinion is intentionally or otherwise given by the opposing psychiatrists confuse the courts more. Therefore, the courts having this in mind and considering the possibility of scientific errors came to believe that there could be no fair finding unless insanity for the 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 one although medical opinion is still to be sought by the court and given its due consideration or evidential value. In the Sudan, the battle of experts was experienced in the case of Awad ElKarim Mohamed Ali Bakkar in 1982 when each expert or each team on each side gave contradictory expert evidence in favour of either the defense or the prosecution —i.e. allying with the side which called them as their witnesses. The court as usual had to consider insanity in this case to be a legal and not a medical concept. This case is just an example about what is known as the battle of the experts. Generally speaking, the psychiatrists have not been accurately perfect in setting lines to divide or categorise insanity according to the degrees of severity, and since the difference between the degree of insanity or mental disorder is the formula by which it is decided who should be punished and how severe should that punishment be, it becomes imperative for the courts to step in and reach adecision in whatever way they think just by trying to pin point the indefinable line that separates different states of mind and punishment are decided accordingly. The less severe punishment is for the diminished responsibility asa result of a less severe insanity or mental disorder, definitely the reason for deciding that insanity is a medical concept is because judges and lawyers have their training based on the importance of justice, which is in turn based on necessity of impartiality. This kind of training makes most of thejudges unlike others never to depart from these ethics. But this is not to say that other professionals do not completely observe the ethics of their jobs but comparatively, I maintain that courts are more adhesive to the ethics and principles of law which prohibit partiality. Were courts to have the complete technical know~how to find out with a scientific precision the extent to which one is insane, there would have been no problem of deciding who is to be responsible criminally and to wl1at extent? In the course ' of discussing criminal responsibility with respect to acts of insane people, I immediately found that it is necessary to mention the psychiatric types of mental disorder. However, it is not the work of a judge to enumerate all types of such disorder, how many they are or what their characteristics are, since this is the work of a psychiatrist. At any rate, I had to identify which one is usually the cause of insanity or mental disorder, which affects criminal responsibility. I found that the best known among then are psychoses, neuroses, organic brain disorder and then the congenital intellectual deficiency. The most severe of these being mostly from psychoses —and that is the type known as schizophrenia. The other most controversial state of mind is the psychopathic personality, which develops from neuroses. This thesis is a comparative study based mainly on three jurisdictions which are (1) England (2) United States of America and (3) The Sudan. The law of insanity regarding these three countries has been discussed in this work with some kind of concentration and has been critically analyzed. It has to be noted that the known legal tests in this field originated, in England and United States of America. The Sudan and other countries copied them. However the Sharia law claims precedence in a general sense and the Sudanese courts after the application of the sharia law had to adjust themselves to the sharia concept which is not really very different from what the law used to be before 1983 or the secular law. I then compared and discussed the best known tests to see which one can solve the knotted problem facing us with respect to law of insanity. But I found that none of them offers a permanent solution free of errors; but it may be said that M’Nagten Rules have not failed to address the issue effectively. S
Appears in Collections:كلية القانون - ماجستير

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