Some people are crazy about him, some people can’t stand his face, some people they smile when they know he’s coming, some people chase him out of the place…

Sane or insane? What would the difference be had Breivik have been on trial in England?

In July last year, Anders Breivik killed seventy seven people in what was the worst massacre to have taken place in Norway since the Second World War. Much of his subsequent trial have centered around the following issue – to what extent was Breivik responsible for his own actions?

Breivik himself has insisted that his actions resulted from his extremist view that he was acting to prevent a Muslim invasion. He states that he is sane, that he believes his actions were reasonable given his perception and so denies the charge of terrorism.

As in most legal systems, in Norway’s Penal Code the defendant’s state of mind is key to his or her culpability. Accordingly the court ordered a psychiatric report on Breivik and then after criticism of its findings, that Breivik suffered from psychosis, a second report was commissioned. This report reached a different conclusion, implying that whilst poor mental health had a role to play in Breivik’s actions, his state of mind was not sufficiently to prevent him being imprisoned.

There are two components that are usually considered when judging an accused’s guilt – that they have committed a guilty act (‘actus reus’) and that overlapping with this, they had a guilty state of mind (‘mens rea’).

If both are present at the same time, the elements required for an offence are satisfied.

The defence of insanity relates to the defendant’s guilty state of mind and implies that whilst a person may well have committed the guilty act, they should not be found guilty because their insanity at the time disqualified their necessary state of mind.

In England the defence of insanity is defined with reference to the ‘M’Naghten rules’ which came about as a result of the acquittal of Daniel McNaughton after he took a shot at Robert Peel in 1843.

These rules state that ‘to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong’.

The reference to not knowing the ‘nature and quality’ of the act is that the defendant did not know what he was physically doing, for example he had cut someone’s throat thinking that he was actually cutting a loaf of bread.

When it comes to not knowing that the act was wrong and using the same example, the defence would have to prove that whilst the defendant had knowingly cut the throat, as a result of his mental state he had not known that doing so was wrong.

The court is entitled to presume that a defendant is sane and when it comes to making the case for a defence of insanity, the burden of proof lies with the defence and they must make their case on the balance of probabilities.

If the defence is successful, the sensitively named Trial of Lunatics Act 1883 affords the courts a verdict of ‘not guilty by reason of insanity’.

The impact of Breivik’s actions have understandably evoked a strong public feeling that he ought to be properly punished for his attacks with the Norwegian sentiment being that his jailing would be preferable to being committed to a mental health hospital or that better still, the death penalty ought to be reintroduced.

Much interest has been raised in how the court has handled the issue of Breivik’s mental state and in how Norway’s Penal Code assesses psychiatric concerns in relation to an offender’s guilt.

The judges now have until August 24th to deliver their verdict and will no doubt be influenced by both strong public opinion and the varying evidence offered by the psychiatric reports.

The case is a reminder that deciding the extent of a defendant’s insanity as a bearing on their guilt is never an easy one and that reliable ‘facts’ can sometimes be hard to come by in support of the decision.

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