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What is in the "Rights for Victims of Insane Offenders Bill"?

Kieran Moorhead

National MP Louise Upston’s Member’s Bill, Rights for Victims of Insane Offenders Bill, was drawn this month from the ballot to be considered by Parliament.

In Upston’s press release she states that the intention of her bill is to ensure that victims of legally insane offenders are treated as other victims of crime. She also notes that her Bill seeks to rename the verdict of ‘not guilty on account of insanity’, to a verdict that more acknowledges that the offender has committed a criminal act.

Using the insanity defence to prove insanity of an offender has a high threshold. In New Zealand, the insanity defence is used in only a tiny proportion of criminal cases. It is run between 30 and 40 times each year and is successful about 10 times.

A large number of English-speaking countries have evolved their insanity defence from common law and M’Naughten’s case from 1843. M’Naughten’s case is the classic example of the insanity defence. It originated in Britain where, in 1843, M’Naughten murdered the secretary of the Prime Minister (in an attempt to kill the Prime Minister) believing there was a conspiracy against him involving the government. The high court found him insane and he was hospitalised. The court described what is now known as the M’Naughten Standard, that the person had a mental disease or defect that interfered with his ability to understand the nature and quality of the act he was performing or if he knew so, he did not know it was wrong. This standard allows for what is seen as a more compassionate response to those who suffering from a psychiatric disorder or an intellectual disability.

Upston’s Rights for Victims of Insane Offenders Bill does not seek to change the Crimes Act or whether insanity can be used as an excuse of a crime. But it does seek to change part of how a court determines a finding of insanity – specifically changes to the Criminal Procedure (Mentally Impaired Persons) Act 2003. The changes would require a recording that an act that constitutes an offence has been committed separately to whether there is criminal responsibility for the act on account of insanity, “the Judge must record a finding that the acts or omissions are proven but the defendant is not criminally responsible on account of insanity”.

The insanity defence is not interested in establishing whether an act has occurred but considers that if an act has occurred can someone be labouring of such a ‘disease of the mind’ that they should be excused from criminal responsibility. It is this change that would potentially result in the renaming of the verdict from ‘not guilty on account of insanity’ to something else similar perhaps to what other countries have done.

In the USA, after the attempted assassination of President Ronald Reagan in 1981, the public outcry of the use of the insanity defence lead to many states adopting various changes. In Oregon the term ‘not guilty by reason of insanity’ was first changed to ‘not responsible as a result of mental disease or defect’. It was then changed again to ‘guilty except for insanity’ to more accurately describe the legal thinking behind the decision. In Montana, the insanity defence was abolished completely and instead defendants who would previously be found not guilty by reason of insanity were instead found unfit to stand trial.

The renaming of the insanity defence has been seen by some as more of a cosmetic change that does not amount to any real outcomes, as a countries legal and mental health systems simply find the means to accomplish the same end whether by an insanity defence or not. The rationale for insanity defences (and equivalent) is overwhelmingly to protect the public’s safety by the detention of those deemed legally insane in hospitals and forensic psychiatric units. The Law Commission produced a report in 2010 examining the role of the insanity defence in New Zealand courts. The Law Commission’s report found that while “problems with the insanity defence are not insignificant”, the majority of responses from stakeholders asserted that the “defence is workable in spite of its flaws”.

Upston alleges that her bill addresses the issue that victims of legally insane offenders don’t have the same rights as other victims. This would be a completely valid concern were it that victims of legally insane offenders are unable to access the same supports as other victims because of the presence of an acquittal on account of insanity. But this would not appear to be the case as the definition of victim in the Victims’ Rights Act 2002 extends to those who are victims of legally insane offenders. There are also, despite what Upston says, existing provisions in the Victims Rights Act that allow for victims to be notified when a legally insane offender is to be discharged or be granted unescorted leave.

The final and particularly concerning aspects of Upston’s Bill are the amendments to the Mental Health (Compulsory Assessment and Treatment) Act 1992. The Bill would allow victims to receive the clinical reviews of legally insane offenders who are having their compulsory detention status changed. Giving victims a say in clinical reviews is concerning not only because of the privacy concerns of health records being shared without consent, but additionally it gives victims an unnecessary say in the further detention of legally insane offenders.

Under current legislation, “Any person to whom a copy of a certificate of clinical review is sent under may apply to the Review Tribunal for a review of the patient’s condition.”. This would allow victims to challenge decisions being made by health professionals, which is more than simply allowing a victim the right to submit their own opinion or testimony.

The consequences for people acquitted on account of insanity are serious. They are likely to be detained for some years in a mental health facility, for periods that correlate with the time they would have served if found guilty of the offence. It is not a legal loophole to avoid punishment.

Acknowledging the trauma and pain victims have gone through and seeking healing and a way forward should be at the heart of a victim’s rights bill.

Does giving an understandably hurt and aggrieved victim the ability to ensure that an offender would never be released amount to support and healing for a victim?

The Rights for Victims of Insane Offenders Bill needs work to consider its true purpose. Violent offenders who are found to be mentally impaired are incredibly rare and even more rare is violence perpetrated towards strangers. In these extreme cases the balancing of the rights of victims and equally of offenders is important, and the proposed Bill does not afford anyone any meaningful rights.

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