Terrorism vs. Mentally Ill: Are the Mentally Unfit Prosecuted Fairly?

With people criticising Stephen Paddock being labelled as a ‘lone wolf’ and other criminals being stated as ‘mentally unwell’ instead of ‘terrorists’, Lawyer Monthly asks how mental health ties into violent crimes and if a criminal should just be labelled as a criminal, rather than on their mental well-being.

It is a tough topic to address, as mental health in itself is more complex than we often perceive it to be.

As Clinical Psychologist and Cognitive Behavioural Psychotherapist, Bernard Kat explains, when trying to determine if being mentally unfit justifies the act of terrorism: “It depends what side you are on; what one claims a martyr, another thinks a psychopath.”

That aside, we can delve deeper into the topic by considering criminal responsibility in line with mental illness.

“Criminal responsibility is no longer black and white (if it ever was); various laws now discriminate various levels of responsibility and in any case responsibility is not a characteristic of a person, it is attributed to them”, explains Bernard.

“Mental illness is a metaphor, using physical illness as a reference point. Most disorders are categorised by reference to what one can see and what the ill person says. Only very few [mental illnesses] are defined by a known underlying process – dementia and PTSD are examples.

“So using a metaphor to argue about the extent to which one should be attributing blame to someone, is bound to be a messy business. There are alternatives to the mental illness metaphor but currently they are not acceptable because they mean recognising that crime is not an individual phenomenon but an individual’s expression of social, cultural and economic inequalities. Oversimplifying somewhat, currently, we prefer to believe that there are deviants, rather than consider the nature and origins of deviancy.”

And even though people can be quick to say ‘mental illness is a bad excuse’, we must recognise that the law is constantly adapting to new discoveries and its place in society; we cannot underestimate the knowledge of the medical industry, and as Julian Heiss, a leading criminal law expert eloquently puts it: “Throughout my career as defence counsel I have seen far too many people with mental illnesses become entangled with the criminal justice system due to lack, or failure, of treatment. Mental illness can be an explanation, it is however not an excuse.”

The next few articles delves deeper into this topic with Julian, using his expertise in Criminal Law from Germany; we also hear from Tonya Krause-Phelan, a Professor and Auxiliary Dean at Western Michigan University Cooley Law School, who discusses this from an American point of view, and from Mary Prior QC, touching on English Law and mental health.


Does the American Criminal Justice System Need Reforming to Address Terrorists?

 One of the founding principles of the American criminal justice system was the notion that punishment should be handed out to those individuals who violate the law. Historically, however, our justice system did not punish offenders who were insane because those individuals were not believed to have exercised their own free will. Instead, it was believed their criminal conducts were caused by a disease or defects of their mind, and therefore, were not deemed to be morally accountable for their actions.

Over time, our justice system shifted its focus from the moral accountability of the offender to the rights of victims. Michigan, for example, amended its state constitution to implement the Crime Victim Rights Act. This act provides several procedural rights to victims such as being notified of court dates regarding their case, to be consulted regarding any plea bargains offered to the defendant, and to give the court a victim impact statement. With the system’s focus shifting to victims, the attitudes about punishment for individuals suffering from mental illness dramatically changed.

One possible reason for this attitudinal shift is that when the public witnesses not guilty by reason of insanity verdicts, those verdicts have been rendered in gruesome, high-profile cases. However, many mental health professionals assert that only a small percentage of people who are mentally ill commit violent crime. Nonetheless, people fear those violent crimes. Many individuals believe it is easy to lie about being insane. And, many are under the mistaken notion that a defendant found not guilty by reason of insanity is released back into to the community.

In several state’s insanity is actually referred to as lack of criminal responsibility. It is an affirmative defence which means the defendant must raise the defence and give the prosecutor notice of the defence prior to trial. Insanity focuses on the person’s state of mind at the time the crime was committed. Interestingly, a jury must determine beyond a reasonable doubt that the defendant actually committed the crime charged by the prosecutor. Once that determination is made, the jury must determine if the defendant was insane at the time he committed the offence. To be legally insane, the defendant must prove he was mentally ill or suffers a significant, sub-average intellectual function. Then, the defendant must prove that, as a result of mental illness or intellectual disability, he could not understand the wrongfulness of his conduct, or that he was unable to conform his conduct to the requirements of the law.

Insanity, contrary to popular belief, is a very difficult defence to raise and an even more difficult defence to prove. First, although used as a legal defence, insanity is actually a medical diagnosis. To even be eligible to raise the defence, the defendant must request and submit to a psychiatric examination to determine his competency to stand trial, whether he suffers from a diagnosable mental illness, and whether he was acting under that mental illness at the time of the offence. Under current law, the defendant could conceivably be subjected two more examinations: an independent exam at the defence request and one at the request of the prosecution. Although the public thinks it is easy for anyone to fake being mentally ill, the experts are fully capable of detecting imposters from the truly insane.

After thorough examinations, the psychiatrist or psychologist prepares a report and conclusion that is made available to the lawyers and the court. Even if there are three separate examinations, and all three conclude that the defendant meets the statutory definition of insanity, the prosecutor may still proceed to trial and argue that the defendant was not insane when he committed the crime.

So, it comes back to public perception. In some states, jurors cannot be informed that if the defendant is found not guilty by reason of insanity, that the defendant is not automatically released into the community. Instead, the defendant is transferred to the probate court system where he will be committed to a secured mental health facility where he could be held for decades. For example, John Hinkley, the man who attempted to assassinate President Ronald Regan, was found not guilty by reason of insanity and he spent decades in a secure mental health facility.

In light of recent events where violent acts have been committed against a targeted group of people, the public is now wondering the differences between a terrorist and someone who is insane. States have created various definitions for terrorists. In general, a terrorist is defined as “any person who engages or is about to engage in an act of terrorism.” Terrorism is defined as a willful and deliberate act that is 1) an act that is a violent felony; 2) an act that the person knows or has reason to know is dangerous to human life; and, 3) an act that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government through intimidation or coercion.

Being a terrorist, by definition, is a person who committed a specific type of violent crime with a specific purpose. A ‘terrorist’ is not a condition. By contrast, an insane person may have committed a crime, but committed the crime as a result of a medically diagnosed condition. Even so, someone charged with terrorism could, in fact, raise the insanity defence if he meets the medical and legal criteria. At the end of the day, whether the insanity defence fosters justice or impedes it is a matter of perspective regarding who, and under what circumstances our system punishes offenders.

Tonya Krause-Phelan is a Professor and Auxiliary Dean at Western Michigan University Cooley Law School, where she teaches Criminal Law, Criminal Procedure, Defending Battered Women, Criminal Sentencing, and Ethics in Criminal Cases. Before joining WMU-Cooley, Professor Krause-Phelan worked as both a private criminal defence practitioner and as an assistant public defender. She has lectured on a variety of criminal law topics, including “Junk Science in the Courtroom: Cross-Examining the Child Sexual Abuse Accommodations Syndrome Expert” and “Getting Experts in Court-Appointed Cases.”


How Does Germany Address Mentally Unfit Persons Committing Crime?

If a person is found to be lacking in responsibility for a crime (Section 20, German Criminal Code) or have diminished responsibility (Section 21, German Criminal Code) because of a pathological mental disorder, a profound disturbance in awareness of one’ actions, a mental deficiency or any other serious mental abnormality’ the court will order their involuntary admission to a closed psychiatric hospital for treatment.

The German criminal law obliges the court to order an indeterminate confinement in a closed psychiatric hospital, in addition to punishment, if the offender had acted under diminished criminal responsibility and is still considered to be dangerous.

In Germany, the Criminal Code dealing with offenders with mental illness provides that hospitalisation should be imposed before or instead of a prison sentence.

While admission to hospital is potentially life-long, the Federal Constitutional Court (Bundesverfassunsgericht) has stated that the length of involuntary hospitalisation must be directly related to the severity of the offence as well as the risk of recidivism.

The goal is to reach a balance between the rights of the patient to treatment and the responsibility of the courts to ensure public safety.


Should anything be changed to ensure mental illness is not used as an ‘excuse’?

Throughout my career as defense counsel I have seen far too many people with mental illnesses become entangled with the criminal justice system due to lack, or failure, of treatment. Mental illness can be an explanation, it is however not an excuse.

It is a misconception that a “not criminally responsible” ruling is a “get-out-of-jail-free card” and that a diagnosis of serious mental illness often only serves to prevent justice from being served.

Closed psychiatric hospitals and mental facilities are far from comfortable places to be kept in, and freedom is removed, but the criminal patient does have access to psychiatric care, medication, and other therapies, instead of being warehoused in a prison where they are far less likely to get adequate care or be rehabilitated.

When committed to a closed psychiatric hospital for a potentially ‘indefinite period’, judicial checks are mandatory at least every year (or six monthly for those detained under Section 64) to ascertain the suitability of continued commitment. The convicted offender remains under the control of the criminal court during psychiatric hospitalsation. The patient is only discharged when ‘no further criminal acts are deemed likely and detention in the hospital shall only be terminated when ‘the court finds that the conditions for the measure no longer exist or that the continued enforcement of the measure would be disproportionate’. The risk of reoffending due to mental illness can tip the scales in the direction of not releasing the offender from a closed psychiatric hospital even if the full prison sentence is served or parole might normally be considered.

Empirical data show that persons with personality disorders adjudged to have diminished responsibility remain in psychiatric confinement longer than if they had been regarded as fully responsible, and had been sentenced only to imprisonment.

A client’s mental health and cognitive impairment matter at every stage of the lawyer/client relationship, from the first meeting, to case strategising, to the plea decision, the trial itself, the sentencing process, and beyond. At each juncture, there are different legal issues and behavioral issues that must be taken seriously by defense counsel.

Defense attorneys are bound by law to give their clients, including those who suffer from mental illness, the best possible representation. The fundamental tension in this practice area arises because what is in your client’s best interest, from a clinical or therapeutic perspective, is nearly always something that is contrary to your client’s wishes.

As a defence attorney you need substantial legal knowledge when it comes to what ‘criminal responsibility’, ‘diminished criminal responsibility’ and ‘insanity’ mean in the context of criminal law. At least a general understanding of the specific disabilities your clients may have, severity of those mental disabilities, as well as the client’s personal background and history, is necessary. To get to the root of a behaviour, as a criminal lawyer I need to ask such questions as: ‘Did the accused have a troubled childhood? Did he exhibit empathy for others? Did he abuse drugs or alcohol?’ My experience is that mental illness doesn’t occur in a vacuum. It’s tangled up with everything else in a person’s life.

In the end it is not simply black and white. As every person on this world is unique so are the crimes people commit. Every person is different and every criminal case is different.


What could be done to ensure victims that full justice is being served?

The function of the criminal justice system is to protect rights, to determine guilt and to decide punishment. Therefore, the focus is on due process and a fair trial. However, victims often feel that they are left out of, or even abused by, the system rather than it attending to their needs. They share the widely-held view that the criminal justice system does not treat them fairly and it is only the offender with a real voice in the criminal proceedings.

Victims want to be able to participate in the process of responding to the crime. The German Code of Criminal Procedure allows victims of an offence, or their survivors, the right to participate in the trial as intervenors or private prosecutors. Intervenors are usually represented by counsel and may produce evidence related to the case, as well as question witnesses. Victims often join the proceedings to enhance their chances of success in civil litigation.

Victims also feel that the offenders get all the support and adequate care and therapy to be rehabilitated while victims are left alone with their fears, and physical and psychological damage resulting from a crime.

Many people struggle to regain a sense of safety and security. Repairing harm may be the only way to truly address the needs of victims of crime. After all, it is the harm caused to victims that is generally the justification for declaring certain acts illegal.

Instead of understanding justice simply in terms of guilt and punishment, it is important to understand justice in terms of responsibility and reparation. Restorative justice places the victim with the offender at the centre of the process. From this perspective justice is achieved through offenders accepting responsibility for their actions, and taking steps to make amends. The goal is that the victim, the offender and therefore also the community, are restored to well-being.


Julian Heiss is one of the founding partners of Cura Advocati and leads the law firm´s criminal department since 2003.

As a certified specialist in criminal law with more than 14 years of experience Julian Heiss has handled hundreds of trials and a long list of clients across Germany in all criminal law segments, both as advisor and as litigator. He defends his clients before Local Courts, Regional Courts, Higher Regional Courts and before the Federal Supreme Court and has extensive trial, plea bargaining and negotiating experience.

See his referrals on Anwalt.de, one of the leading advocate registers in Germany (in German language). 


Stigmatisation of Mental Health: Are We Labelled in Reference to our Skin Colour?

 As soon as media coverage began on the 58 murders and nearly 500 assaults committed by Stephen Paddock on the 1st October 2017, there was a desire to apply a label; to ascribe a single issue. Had he been black, that label would have been “gang violence” or “urban decay”. Had he been brown that label would have been “terrorist[1] ties.” As he was white, the label was “lone wolf.”

Within hours the media was attempting to answer the question as to why. There was speculation that he suffered from frontotemporal lobar degeneration, a disease which alters the executive functions of the brain. He was described as terribly depressed. He had been prescribed an anxiety drug which leads to aggressive behaviour. It was reported that his father was a bank robber and that therefore he may be emulating that behaviour, or that there may be a genetic reason for his conduct. Part of society finds it easier to accept that there is a reason for such conduct rather, than to accept it as evil or wickedness. Others assert that almost all criminal activity is now justified by a diagnosis of mental illness often obtained by criminals simulating mental illness in order to avoid punishment.

Those with mental illness are still stigmatised in society. Recent studies[2] show that each year 1 in 4 of us experiences a mental health problem and 1 in 6 of us reports a common mental health problem in any given week. The rate per 100 of common mental health problems for psychotic disorder is 0.7, bipolar disorder 2, anti-social personality disorder 3.3 and borderline personality disorder 2.4.

The vast majority of homicides are committed by those without mental health disorders. Over the past 10 years in England and Wales there were 6,605 convictions for homicide. Only 10% of those were committed by people with mental health disorders, many by those who did not have a severe mental illness. The primary diagnosis was often personality disorder coupled with drug and alcohol misuse. Of the 67 committed by those experiencing an abnormal state of mind, the majority were not receiving mental health care at the time of the offence. Most victims of homicide are members of the perpetrator’s family rather than strangers. In 2017[3], 47% of victims of violent crime believed that their attackers were under the influence of alcohol, 17% believed the attacker was under the influence of drugs and 1% believed that the attacker had a mental health disorder.

Whilst the rate of homicide has remained fairly constant since 1990, violent crime has increased due in some measure to the increase in knife and gun crime and to the change in statistical recording.

Within the prison environment[4], it appears that more women (26%) than men (16%)  receive treatment annually for mental health disorders. The rate of psychosis[5] with the prison environment is much higher amongst women (25%) and men (15%) than that of the general population (4%). In the last year 7,917 prisoners were recorded[6] as having treatment for mental health disorders. It seems therefore that those with mental health disorders are over represented within the prison environment.

Conversely people with mental health disorders are three times more likely to be victims of crime than the general public, ten times more likely to be assaulted and six out of ten women with mental health disorders are likely to be sexually assaulted.

There is an inherent danger in stigmatising those with a mental illness with inflammatory headlines and the conflation of statistics. The reality is that the percentage of homicides caused by those with mental health disorders is relatively small.

When faced with a homicide where a historic mental health disorder is documented, both prosecution and defence can immediately obtain psychiatric reports to consider whether there is evidence that the disorder has been conducted such as to afford the perpetrator a partial defence.  This may mean that the homicide is defined as manslaughter rather than murder. The mere fact of having a disorder does not automatically permit such a defence. Each case turns on its own facts. The prosecution in any such case will look vigorously at the reports and obtain their own assessment.

For both sides, it is more complex when there has been no historic diagnosis. There are concerns that offenders may attempt to fake a mental illness to avoid partial blame for the offence. These concerns are shared by the public who read of Ian Brady’s “confession” that he had used method acting to fake his condition. Surveys suggest that between 12% and 22% of cases involve an element of suspects attempting to fake mental illness. According to the experts it takes a very skilful malingerer. Recent tests for malingering are far more vigorous than they were in the 1970’s and before. It is now difficult to fake such an illness. Faking in any event ensures only detention in a hospital, often a secure hospital, with no guarantee of release at any stage.

There are also many people who are only diagnosed with mental health disorders once they have committed a serious crime. These are often adults who as children who were “looked after” within the care system or the subject of poor parenting where challenging behaviour was regarded as wilful, rather than part of a condition. They may well have served several custodial sentences in advance of diagnosis. They require the assistance of an experienced Solicitor or Counsel who may well spot traits of mental health disorder which are then explored by experts. The severe and savage cuts to legal aid have reduced the number of lawyers willing to conduct criminal work. Vulnerable defendants therefore are increasingly obliged to rely on inexperienced and/or over worked practitioners who may fail to spot the signs as they have insufficient time to spend with clients.

Until reports have been obtained it is not possible to take instructions. If the reports indicate that a person is fit to plead and stand trial, then often an intermediary is instructed to assist with the taking of instructions and to assist at trial. There is no statutory right to have an intermediary and one has to rely upon the discretion of the Judge to grant legal aid. Recently intermediaries have been refused or permitted only for the period when the defendant gives evidence. This can cause gross unfairness and inequality.
There are those who are so unwell or whose intellect is so low that they are found to be unfit to plead and to stand trial. This finding means that the victim of any crime or their family often feel deprived of being heard and feel that the suspect is “getting away with it.” The absence of trial can be equally unfair for a suspect who is unable to have their say and unable to be acquitted.

The test that the judge applies when deciding if a defendant is unfit to plead remains that set down in the 1836 case of Pritchard[7]  Following the case of Davies[8],  this was generally understood to require a defendant to be able to: plead to the indictment, understand the course of proceedings, instruct a lawyer, challenge a juror and understand the evidence.  More recently the Pritchard test has been interpreted by the courts to make it more consistent with the modern trial process. In the case of John M [9]express reference is made to the need to be able to give evidence.

The area has caused increasing concern. The Law Commission[10] have recently published proposals to change the out of date, misunderstood and inconsistently applied Pritchard test. They propose a new test as to decision making capacity. The aim is wherever possible to have a full trial by utilising a series of measures to make the process possible. These include a statutory right to an intermediary and training for Judges and all advocates on both sides. They make three primary recommendations: firstly, that the Court can choose not to have a hearing at that stage if other disposals may be better; secondly that the hearing should closely mirror a full trial so that victims have a right to speak and thirdly, after it has been proved that the suspect did the act there will be more supervision available or more restrictive measures applied. They also recommend that unfitness to plead hearings can be heard in the Magistrates and Youth Court.

There is no straightforward solution to this difficult issue and it will be interesting to see whether the recommendations suggested by the Law Commission are brought into law.



Mary Prior QC is a jury advocate. She undertakes murder trials and other cases involving a death, either of a child or of an employee within the work place.

Mary is regularly instructed in murder cases where the deceased is a spouse or child and in cases where the deceased is a stranger. She is instructed in large scale child sexual exploitation cases which require extensive research and reading of social services material and where cross-examination of often vulnerable complainants is key.

[1]          A terrorist is a person who uses unlawful violence and intimidation in pursuit of political aims.  A lone wolf has no such pursuit. Often a lone wolf seeks no more than fame.

[2]        McManus, S., Meltzer, H., Brugha, T. S., Bebbington, P. E., & Jenkins, R. (2009). Adult psychiatric morbidity in England, 2007: results of a household survey. The NHS Information Centre for health and social care.

[3]     British Crime Survey 2017

[4]     Ministry of Justice 2013 Gender differences in substance misuse and mental health amongst prisoners.

[5]     Wales, N. et al 2006 self reported psychotic symptoms in the general population. British Journal of Psychiatry 188 519-526.

[6]     National Audit Office Report into mental health in prisons 2017.

[7]                 R V Pritchard (1836) 7 C & P 303, 173 ER 135.

[8]     R v Davies (1853) 3 Car & Kir 328, 175 ER 575.

[9]                 R v M (John) [2003] EWCA Crim 3452, [2003] All ER (D) 199.
[10]   A modern approach to unfitness to plead. The Law Commission.

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