Mental Health Exemptions to Criminal Responsibility

Between law, medicine, politics and security

Abstract

Ill mental health is a key category for exempting individuals from criminal responsibility. Even in cases where a defendant has been found to have carried out the act, if mentally ‘ill enough’, the person could either be fully exempt from criminal responsibility and found not guilty – or be partially exempt and receive a reduced or special sentence on mental health grounds. Such outcomes might entail diversion into mental health treatment, sectioning – or release. In determining whether a mental health exemption is warranted in individual cases, ordinary practice is that psychologists or psychiatrists forensically assess the severity and nature of the accused’s impairment or disorder. While this might seem like a straightforward medical-juridical procedure of establishing evidence, this article uses a modified ‘genealogy of the present’ to show how mental health exemptions to criminal responsibility involve significantly more complexity. Looking to Norway and the UK, this article highlights differences in frameworks and implementation, including on matters of burden and nature of proof, and on causality. The article uses as an example the particular category of terrorism-related cases to bring out some of the contingencies involved. By doing so, the article shows the tensions inherent to the principle and practice of mental health exemptions, and its location between law, medicine, politics and security.

Funding Acknowledgement
This research was made possible by a STAIRS grant from the Norwegian Institute of International Affairs (NUPI), as well as by funding from C-REX (Centre for Research on Extremism), University of Oslo.