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CRIMINAL RESPONSIBILITY 
AND
 THE CONSEQUENCES FOR THE MENTALLY DISORDERED OFFENDER

Madame Geneviève Casile-Hugues
Docteur en Droit
Maître de Conférences à l’Université de Aix-Marseille II 

 The situation relating to mentally disordered offenders is one of the most delicate questions of criminal law, for it sits at the cross-roads between psychiatry, criminology and penitentiary science.

 Responsibility of the criminal for his crime presupposes not only that an act forbidden by the law should have been carried out by an individual, but also that he is at fault (culpability) and that he can be held accountable for that fault (imputability).  Moral freedom is the precondition of criminal responsibility.  In the absence of that freedom, no responsibility can be imputed to the actor – he is irresponsible.

 The Criminal Code of 1810, faithful to the classical approach which links criminal responsibility to moral responsibility, provided that an act ceased to be punishable when its author acted without the ability to reason.  So, Article 64 of the Code provided “There is no crime, nor is an offence committed, when the accused was in a state of insanity at the time of the event”.  It rapidly became clear that this text was poorly formulated.  First, because insanity could not bring about the disappearance of the criminal act, but simply the non-imputability of the act to the actor.  Next, because contraventions were not mentioned.  Finally, and most importantly, because the term of insanity was too restrictive for, in the context of its psychiatric definition, it is directed to a particular form of mental disorder characterised by “a progressive and irreversible failure of mental life”, whereas the legislator had intended to cover all forms of mental illness.

 Furthermore, Article 64 of the Code dealt with insanity and left untouched the problem posed by persons suffering from a mental disease that was insufficiently serious to qualify as insanity, but of a nature to diminish their freedom of action.  People thereby held fully responsible for their actions in practice commonly had their sentence or punishment reduced on the grounds of mitigating circumstances.

 The Criminal Code of 1 March 1994 modified the form, but not the substance, of this provision.   It abandoned the notion of insanity, to replace it with that of psychological or neuro-psychological  disorder.  It distinguishes between the cases where mental disorder has eliminated the ability to reason, and those where it has simply altered it.

Whatever the answer to those points, these people suffer from a more or less severe form of pathology, and their situation requires to be taken in hand.  Doctors are surely better placed to do this than lawyers are, but respond in a more complex way.  Both professions are concerned to look to the future, in order to ensure that the situation of the mentally ill offender is properly followed up. 

 I.                    THE PERCEPTION OF THE CRIMINAL RESPONSIBILITY 
              OF THE MENTALLY DISORDERED OFFENDER

 In the past, the attitude of the state towards those suffering from a mental disease has oscillated.  Having an eye to Roman law, which admitted the irresponsibility of the madman, our law in the past did not exclude it, considering that they were possessed by demons. [1]  It was necessary to wait until the 18^th Century for the works of Pinel and Esquirol to promote the notion that those who were insane lacked responsibility.  This was the influence that led Article 64 of the Criminal Code of 1810 to state that an insane offender lacked criminal responsibility.

 The Criminal Code of 1 March 1994 modified the text of the law, without at the same time providing clear answers to the problems.  The judge will look to the psychiatrist to guide him on the pathological state of the actor.

 A.     Positive Law

 Our Criminal Code distinguishes between psychological or neuro-psychological disease which has the result of extinguishing the offender’s ability to reason and psychological disease which alters his reasoning ability. 

 (a)    Extinction of the Ability to Reason
 Paragraph 1 of Article 122-1 of the Criminal Code provides that a person who at the relevant time was suffering from a psychological or neuro-psychological disease which had the result of extinguishing his reason or his ability to control his acts is not criminally responsible.

1.      The Concept

The concept of disease requires to be construed widely.  Its nature and form are of little importance once the totality of the personality is altered.   As far as its nature is concerned, it may consist in a disease of the mind which is either congenital (cretinism, idiocy, imbecility), or acquired as the result of an illness (general paralysis, pre-senile dementia).  It may equally be the result of a psychotic state of mind (paranoia or schizophrenia) or from an epileptic attack.  As regards its form, the disease may be continuous or intermittent. 

 2.      Its Characteristics

 First, the loss of reason must have arisen at the time of the act.  Nevertheless, the influence of criminological thought and common sense have softened this requirement.  Insanity which precedes the act opens the way to a reduction of the penalty.  If it arises subsequently to the act, proceedings are suspended for so long as insanity lasts, examination of the accused being impossible.[2]  If mental illness arises after the trial, it represents an obstacle to the implementation of a punishment aimed at depriving the individual of his liberty.  Secondly, the illness must be a form of mental disease which has some form of relationship to the crime committed.[3]  If the crime bears no relationship to the disease, responsibility will subsist.   Lastly, the loss of reason must be complete.  That means that the subject no longer has the capacity to understand and to exercise his will.  If his ability to reason is only altered, there would be no irresponsibility, although in practice  the distinction between the two situations can be difficult to trace.  The writers suggest that “total” illness is more or less exceptional[4].  The difficult area lies in the existence of intermediate states which alter the reasoning powers of the subject. [5]

 (a)    The Alteration of Reason

 According to Article 122-1, paragraph 2, of the Criminal Code, a person who at the relevant time is subject to psychological or neuro-psychological disorders which have altered his ability to reason or impeded his control over his actings remains punishable.  Nevertheless, the justice system takes account of this circumstance when determining punishment and assessing the proper regime for it.  This applies to persons classified as demi fous (psychopaths, mental defectives, perverts, addicts……) and this is the most complex and the most crucial problem of criminology.  Legally, these people are responsible.  The “Chaumier” circular of 12 December 1905 established the system of diminished responsibility.  The Criminal Code currently makes the person wholly responsible for his actings.   The legislator simply stipulates that the courts should take account of this circumstance when determining punishment and assessing the proper regime for it.  In practice, we are witnessing a clear tendency on the part of the judiciary towards a growing repression of this category of offenders.  This can be the case even if the expert is at pains to stress the existence of serious mental disorder in his report. 

 A.     Recourse to the Psychiatric Expert

 Insufficiency of mental facilities is not presumed and must be proved.  This can be done by any means.  It is the job of the juge d’instruction  or the judge at first instance to establish proof of mental disorder.  The  opinion of an expert is sought at this stage.  Although the obtaining of this opinion is obligatory in criminal matters, the judge is not bound by the conclusions of the expert. [6]  In practice, however, the view of the expert will be a determining factor.

 According to Article 159, the Code of Criminal Procedure invites the judge to chose the experts from a list, which may be regional, as is the case with the Cour d’Appel[7],  or national, as with the Cour de Cassation.[8]  The law of 8 February 1998 reinstated the practice of appointing two experts, which had been abolished in 1985. The designated expert has to examine the accused and then report his conclusions to  the judge. 

 (a) The Examination of the Accused
 In order to carry out his task, the expert is given a copy of the court file and arranges to meet the accused for the purposes of examining him.  This examination can take place in the place of detention, but may also be carried out in consulting rooms (either private or in a hospital) if the individual is at liberty.  Ethical rules require that the expert makes known to the accused the object of the examination.  The latter may always refuse to be interviewed by the expert, but that is most rare in practice.  The expert may if he chooses call on a person who knows how to communicate with the victim, the family, the medical practitioner who is providing treatment. He may equally ask for complementary examinations (neurological or psychological). Once he has gathered together all elements necessary for his conclusions, he will prepare his report.

(b)    The Expert’s Report
The mission of the expert is complex, as he is asked to follow a double approach, both retrospective and prospective.[9]  Indeed, according to Article C345 of the Code of Criminal Procedure, he is required to reach a view as to whether the individual suffers from mental or psychological anomalies, whether the crime bears any relation to these anomalies, whether the accused represents a danger, the effect any form of criminal sanction would have on him, and whether  he is capable of being cured or rehabilitated.  He is not asked to give an opinion as to whether the individual is responsible.  That is the job of the judge.  The expert gives his report to the judge, who then informs the parties and fixes a period for submitting observations or lodging a request for a counter-expertise. The judge may always reject such a request.  But in that case it is always open to the parties to take their case to the chambre d’accusation (Article 167 of the Code of Criminal Procedure).   At the hearing, particularly in cases involving jury trials before the cour d’assises, the expert will be examined.  He is required to answer all questions his report may give rise to.  They may be put to him by the presiding judge, but also by jurors, the prosecuting counsel and counsel for the accused.  Each of the latter will emphasise those parts of the report tending to support the prosecution or to diminish the responsibility of the accused, as the case may be.  

 The psychiatric expert is thus a privileged collaborator with the criminal justice system.  His opinion will frequently have an effect on the treatment of the mentally disordered offender.

 I.                    THE TREATMENT OF THE MENTALLY DISORDERED OFFENDER

 The mentally disordered offender requires to be taken under control in his own interests and in the interests of society. 

 Whether he is declared responsible or irresponsible, his treatment is most commonly put into place as a result of a close collaboration between the psychiatrist and the judge.

 A.     The “irresponsible” mentally disordered offender

 Since mental illness affects one’s judgement, it removes the moral element of the offence and excludes criminal responsibility.[10]  The courts therefore relinquish any say in what happens in favour of the administrative authorities. 

 (a)     The “non-role” of the legal authorities

 Where an offender is found not to be responsible for his actions, the case against him will be dropped or he will be released or acquitted, depending on the stage which proceedings have reached.  The result of this is that the legal authorities will immediately warn the Préfet and the authority in charge of psychiatric institutions if they consider the person’s mental state may affect public order or public safety. 

 In practice, the problem usually arises before the juge d’instruction.  Before he orders the case to be dropped, he will warn the authorities concerned so that their order detaining the offender takes effect at the same time as the judge’s decision.  Thus the person concerned is removed from the criminal process and is placed in hospital.  This is known as hospitalisation d’office.

 (b)     The powers of the administrative authorities

 The powers of the administrative authorities are provided for in the law of 27.6.90[11], which relates to the rights and protection of those detained by reason of mental problems.  So, in criminal matters, the offender is always placed in a psychiatric institution and he will be treated in the same way as someone who has not committed an offence.  If he is clearly a danger he may be put in a “UMD”[12](special unit).  In both cases, the law provides a certain amount of protection.[13]  Release depends on the opinion of two psychiatrists who must be independent of the hospital and on a list compiled by the prosecution.  The psychiatrists must be of the view that the person concerned is no longer a danger to himself or to others.

 The system has been heavily criticised.  It has been proposed that the detention and release of the offender should be decided on judicially.  Psychiatrists are against such a reform.[14]

 A.     The legally responsible mentally ill offender

 The judge will decide whether he is to be punished or not (art. 122-1, para 2 of the criminal code).  He has complete discretion subject to his not exceeding the legal limits.  Depending on the seriousness of the offence, the judge will either allow the person concerned his liberty or order his detention.

 (a)    Measures not involving detention
Even where the judge allows the offender his freedom, he may require him to follow a treatment regime.[15]  This requirement may be imposed either by the juge d’instruction (Art. 138-10 of the Code of Criminal Procedure) or by the court following judgement, by way of a suspended sentence (Art 132-45-3 of the Code of Criminal Procedure).  The offender will therefore have to agree to medical treatment, possibly even within a hospital.

Here, the courts and the doctors work closely together.  They do likewise when an individual is to be deprived of his liberty. 

(b)    Measures affecting liberty
In Prison
 Article 122-1, para 2 of the Criminal Code allows judges a wide discretion in deciding the punishment to be meted out where the offender’s reason has been affected.  However, in terms of the law of 1.2.94, which fixes an automatic sentence for the murder of children, the judge may impose an even greater sentence in the case of mental illness.  The treatment of the mentally ill was improved by the creation in 1986 of “SMPR” [16](services médicaux psychologiques régionaux) in prisons.[17]  Moreover, the law of 18.1.94 provides that such treatment is the responsibility of local hospitals, which should lead to an improvement.  In France today, the most sensitive subject is that of paedophiles.  The law of 17.6.98 provides that the courts may require continuing supervision (partly by social work authorities and partly by the judicial authorities).  This may last for 10 years in the case of a délit and 20 years for a crime.

 The courts may impose, as part of this supervision, compulsory treatment having had the advice of two experts in cases of murder of a child who has also been raped, tortured or subjected to indecent behaviour.  Refusal of this treatment will result in imprisonment for 2 years where the person has been found guilty of a délit and 5 years for a crime. 

 The person in charge at the regional psychological services may request that someone detained who becomes insane be hospitalised (hospitalisation d’office[18]) (Art D.398 of the Code of Criminal Procedure).  He will then be placed either in a general psychiatric hospital or in a special unit, but will remain under the control of the prison authorities.  At the end of psychiatric treatment, the patient returns to prison and the order for hospital treatment is terminated.  The time spent in hospital counts towards the time spent in prison.[19]

 In a Special Unit
 These are secure units which, according to the arrêté (administrative order) of 14.10.96, admit those who are a danger to others and who require intensive treatment, as well as specific security measures.[20]   The condition of those within these units is therefore extremely dangerous.  In France, there are four secure units which have a total of 748 beds.  They serve the Parisian area, the south east, south west and north east.  They form part of the general psychiatric services.

Everyone in a secure unit is there by a procedure known as hospitalisation d’office.  There are three possible solutions: the most common is that of someone under the care of the general psychiatric services who is transferred to a secure unit (75% of cases).  The next most common case is that of offenders who are found not to be responsible according to Article 122-1 of the Criminal Code.  Lastly, those in detention (on remand or after conviction) who display signs of aggression (Article D 398 of the Code of Criminal Procedure) – these last retain the rights and duties of all detainees.  So far as the psychiatric condition of these persons is concerned, schizophrenia is by far the most common, with there being fewer and fewer psychopaths.[21] 

When the Criminal Code was being revised, the question of what should happen to mentally disordered offenders was debated.  It was envisaged that another solution would be for the sentence to be served in a prison with specialised psychiatric and  psychological services.  However, this solution did not prevail.

This has resulted in a certain amount of unease amongst judges.  In criminal matters, the judge has little room for manoeuvre and the terms of Article 122-1, paragraph 2 are not easily applied.  How might the mental state of the legally responsible be taken account of?  The legislator has given some guidance, but not the answer.