Legal concept of insanity

I never thought I would see the day when I would need to write to The Times a letter such as the present one.

I have always thought that it was the paper's policy not to comment, or encourage comment, on cases which are sub judice and pending before the criminal courts, especially comment which denigrates unjustly persons who have performed their public duty according to law and which is clearly and unequivocally intended to influence and sway the opinion of jurors who will be called to give their verdict by playing upon their emotions.

Regretfully, and reluctantly, however, I have to refer to the feature published in on September 28 under the heading The Shameful Verdict. The feature deals with criminal proceedings that are still pending before the criminal courts.

In fact, the decision discussed by the author is still subject to appeal before the Court of Criminal Appeal. Moreover, no bill of indictment has as yet been filed and any eventual trial on the merits has still to take place before a jury. The feature in question is even confused and confusing in this respect: It first says that as a result of the verdict "the process leading to the murder trial can continue" and then it describes the verdict as "This guilty verdict..." There has not been any guilty verdict. There has not even been any bill of indictment yet.

The verdict is not shameful. The feature is. The verdict may be correct or it may be wrong: My office alleges that it is correct. It will, however, await the Court of Appeal's final decision should there be an appeal. The verdict, right or wrong, however, is certainly not shameful and the jurors who delivered it have nothing to be ashamed of. They did their duty according to law and their oath after having the law explained to them and after patiently listening to and painstakingly examining all the evidence. They did much, much more than the author of the feature has done. He seems to have limited himself to making a phone call and firing off an article at the first opportunity without seeking to verify anything. His lack of understanding is not surprising taking into account how misinformed he is on the facts and the law.

Peppi Azzopardi cannot understand the verdict in the light of the conclusions of the court-appointed experts. One would therefore have expected him to first ask for an explanation and verify his facts and the law instead of rushing into print and seeking to foment some kind of crusade even before an indictment has been filed. I will not discuss the merits of the case in question.

But readers deserve to be better served than they have been till now. They also deserve to be better informed.

I do not believe this to be the best forum to go into a full disquisition on all the aspects and implications of the legal concept of insanity. The following should suffice.

The issue of whether a person is insane or not is not a medical, psychological or psychiatric issue. It is a legal issue. Insanity is not a medical or psychiatric term. It is exclusively a legal term and a legal concept. In proceedings on a plea of insanity, the issue is not so much whether a person is mentally ill but whether a person is insane according to law.

A person may be mentally ill but not insane according to law. Whether a person is insane or not can never be decided by experts because whether a person is found to be insane or not at the relevant time depends on the particular facts of the case and the nature and elements of the particular offence with which he is charged.

Whether a person is insane according to law is essentially a question of fact and not a question of psychiatry or psychology and, as such, therefore, it is an issue to be decided by the jury and by no one else.

Experts are appointed in order to assist the jury to reach their decision and not to substitute their decision for that of the jury. It is the jury, not the experts, who have all the evidence before them and it is the jury, not the experts, who have the benefit of the legal submissions of counsel for the prosecution and counsel for the defence as well as the direction of the presiding judge. All this would have been explained to the jury in the course of the proceedings on the plea of insanity.

The jury is therefore better placed than the experts to reach a decision. They are also much better placed, better informed about the facts of the case and better instructed on the law as applicable to the facts than any experts appointed by the court and indeed than the author of the feature in question.

All this was explained in detail in a recent judgment of the Court of Criminal Appeal dated September 25, 2008 in the case Republic vs David sive David-Norbert Schembri.

Everyone is entitled to one's opinion. But then not all opinions are of the same value. There are well-informed opinions and ill-informed ones. The opinion expressed in the above feature is among the ill-informed ones.