Mythbusting Insanity in the Magistrates’ Court

A common yet persistent misconception repeated in the Magistrates’ Courts is that the defence of insanity does not operate outside of the Crown Court. Mark Pritchard sets out the reality.

Mark Pritchard

Fact finding hearings

Conventional wisdom suggests that when the Magistrates’ Court is dealing with a mentally disordered defendant that the correct method of dealing with the case would be to hold a fact-finding hearing, the Magistrates’ determine if the defendant made the act or omission and then consider appropriate the appropriate sentence (a discharge) or hospital order.

11(1) Powers of Criminal Courts Sentencing Act 2000 –

If, on the trial by a magistrates’ court of an offence punishable on summary conviction with imprisonment, the court—

(a) is satisfied that the accused did the act or made the omission charged, but 

(b) is of the opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined, 

the court shall adjourn the case to enable a medical examination and report to be made…

The Magistrates Court can only exercise these powers where the summary offence is imprisonable the position for lesser offences is not at all clear.

This process however denies the defendant the right to a possible acquittal by asserting the defence of insanity.

Insanity Defences

The case of DPP v H [1997] 1 WLR 1406 ruled that insanity could only be a defence in a summary trial where the offence requires mens rea or where mens rea was in issue. This did indeed drastically limit the scope of the operation of the defence of insanity in the lower court.

The case of Loake v CPS [2018] 1 Cr App R 16 (238). This case involved a defendant who was convicted in the magistrates’ court of harassment contrary to section 2 of the Protection From Harassment Act 1997. The harassment consisted principally of a very large number of text messages sent over a period of time to her husband, from whom she was separated. An appeal against conviction was then heard in the Crown Court where it was held that insanity could not form a defence in that case. A further appeal by way of case stated was heard in the High Court where Lord Justice Irwin held that that DPP v H should no longer be followed as it was based on a mistaken assumption about the scope of the M’Naghten rules. This is because it ignored the fact that the second limb of the rules, referring to whether defendant knew his act was ‘wrong’, clearly went beyond whether defendant had mens rea. The two limbs were described as follows;

“39.  In virtually every case where the defendant proves that he did not know the nature and quality of his act at the time he performed it, then he will not be criminally responsible irrespective of the first limb of the M’Naghten test, because he will lack the mens rea for the alleged offence. The woman who squeezes her husband’s throat believing she is strangling a deadly snake does not have the mens rea for murder, because she lacks the necessary intention to kill or cause really serious harm…”

“41. It is possible for someone to have the full mens rea for a criminal offence whilst at the same time, because of a defect of reason arising from a disease of the mind, not know what he is doing is wrong. If a man intentionally kills his wife because of his deluded belief that he is under threat from a representative of Satan and has received a divine order to slay, and that it is lawful to comply with divine orders, then he possesses the mens rea for murder but is not guilty of murder because he does not know that what he is doing is unlawful.”

It is therefore clear that if a defendant, due to a disease of the mind, does not know what he is doing is wrong he will be entitled to assert defence of insanity.

This case of Loake does however come with the following health warning;

“Although in this judgment we have held that the M’Naghten Rules apply to the offence of harassment contrary to Section 2 of the PFHA just as they do to all other criminal offences, this should not be regarded as any encouragement to frequent recourse to a plea of insanity…. In the absence of cogent psychiatric evidence about the specific relevant aspects of a defendant’s mental state throughout his alleged course of conduct, we would expect magistrates and judges to deal robustly with claimed defences of insanity.”

It will be essential for any defence solicitor wishing to run the defence of insanity in the Magistrates’ Court to ensure supporting evidence is obtained as soon as possible in the case management process.


The key advantage of the defence of insanity is that special verdicts are not available in the Crown Court should the defence of insanity prove successful then the defendant would be entitled to a full acquittal.

In the event that the defendant is so unwell that they require hospital treatment magistrates have a power to make a hospital order under the Mental Health Act 1983, s. 37(3), even without a conviction. There is however no power to commit to the Crown Court for a restriction order to be made under s. 41 of that Act, therefore once the defendant is deemed well enough to be discharged by the registered clinician or the Mental Health Review Tribunal.

Central Chambers has a wealth of experience and expertise in dealing with cases involving mental health in all courts.

If you wish to instruct Mark Pritchard in this type of proceedings, or any other, please contact his clerks.