¹³⁴ See n. 37 supra.

¹³⁵ See n. 37 supra. For the Mizan Case: Mizan v. A.G. (1957) 11 P.D. 769. For further analysis of the doctrine and its development in Israel case law, see Barazani v. A.G. (1959) 13 P.D. 1409, Mehring v. A.G. (1961) 15 P.D. 632 and the Fano Case cited in n. 100 supra.

¹³⁶ See sec. 33 of the Courts Law, 1957, Reshumot (Statutes) No. 233, p. 148.

^136a the literature involving the substantive tests of irresponsibility is vast and cannot be discussed even in a cursory manner within the scope of this article. It may be useful, however, to refer only to some of the leading “tests” involved and discussed eminently. For a collection of authorities see Ehrenzweig, op. cit., 430; Hall, op. cit., 472–528; Glueck, , Law and Psychiatry, 49–53, 68–70, 80–91, 94Google Scholar; Williams, op. cit., 156–64, pp. 477–516. Brett, , An Inquiry into Criminal Guilt (1963) 163–65.Google Scholar

¹³⁷ The availability of substantially similar criteria for determining the fitness to stand trial and the issue of irresponsibility enables defence counsel to try out the issue of their client's mental condition, without risking his life in capital crimes, by unsuccessfully invoking the insanity defence during the trial on the merits. Where capital punishment is abolished and the procedure for the disposal of persons unfit to stand trial and those acquitted because of irresponsibility are similar, this tactical advantage is of little value. The same applies to jurisdictions where the “insanity plea” may be raised by the court or the prosecution.

¹³⁸ See text in n. 39 supra.

¹³⁹ Israel criminal procedure usually adheres to the English practice where there are no formal pleadings other than “guilty” or “not guilty” and certain other pleas that are not relevant here. There is no such thing, technically, as a “plea of insanity”; the issue is considered a defence following the plea of “not guilty”. The ability of both defence and prosecution to raise the issue enables them presumably to do so after a plea of guilty. In the United States formal provisions are made for the raising of this defence. See Weihofen, op. cit., 357–59.

¹⁴⁰ Sir William Harcourt.

¹⁴¹ See Royal Commission's Report, para. 442, p. 152.

¹⁴² See R. v. Oliver Smith (1910) 6 C.A.R. 19; R. v. Casey (1947) 32 C.A.R. 91, holding that the duty of the prosecution is limited to placing at the disposal of the defence and of the court any evidence of insanity in its possession.

¹⁴³ See Williams, op. cit., sec. 148, pp. 448–49, Royal Commission Report, para. 443,p. 153. Halsbury's Laws of England, vol. 10, para. 531, p. 288.

¹⁴⁴ See sec. 6 of the Criminal Procedure (Insanity) Act, 1964, providing that where the defence to a charge of murder is insanity, the prosecution may adduce evidence that the accused was suffering from diminished responsibility, and vice versa, thus resolving a conflict of practice referred to in R. v. Duke [1961] 3 All E.R. 737; [1963] 1 Q.B. 120. On the substantive aspects of the “plea of diminished responsibility” see Brett, op. cit., 174; Glueck, , Law and Psychiatry, 23–29 Google Scholar, Williams, op. cit. §173, 541–49.

¹⁴⁵ Scotland and the Republic of South Africa form exceptions to this rule. In Scotland, evidence of insanity at the time of the offence (or of diminished responsibility) is ordinarily led by the defence, but it is open to the Crown to raise the issue if the defence does not do so. See Royal Commission Report, para. 444, p. 153. As to South African Law, see Gardiner, and Lansdown, , South African Criminal Law and Procedure (1946) vol. 1, pp. 71–72.Google Scholar

¹⁴⁶ Even a celebrated scholar such as Professor Turner, in his edition of Kenny's Criminal Law (1952) has fallen into this error and stated, quite contrary to the prevailing English rule, that the defence of insanity in England may sometimes be raised by the Crown. See p. 74, n. 1.

¹⁴⁷ A striking illustration and its attendant injustice, under the then prevailing law, is found in Lichtenstein v. A.G. (1945) S.D.C. 205. The accused was charged in the Jerusalem Magistrate's Court with causing malicious damage to property, in that he had destroyed a box with official papers in an R.A.F. depot. The accused, who appeared without counsel, was asked to answer the charge and replied that he knew nothing about the charge. The court consequently entered a plea of “not guilty”. The prosecution proceeded to call the prison doctor who testified—without being cross-examined—that he had examined the defendant in prison and that the defendant was mentally ill. Another witness testified that the accused picked up the box of papers from the table in the R.A.F. depot and threw it on the floor. The prosecution upon this evidence requested the court to pronounce the accused “guilty but insane”. The court readily complied and ordered the accused committed to an institution during the High Commissioner's pleasure, under sec. 19(1) of the Magistrates' Courts Jurisdiction Ordinance, 1939. The Court of Appeal was unable to reverse the magistrate's decision, since under the prevailing practice no appeal could lie from a verdict of “guilty but insane”. The court could only express its deep dissatisfaction with the action of the magistrate and recommend administrative relief to the accused.

¹⁴⁸ Legal warrant for such practice was afforded by sec. 3 of the Probation of Offenders Ordinance, 1944, Palestine Official Gazette of 1944 No. 1380, Supp. 1, p. 174 empowering the court in summary trials if it thinks that the charge is proved but is of the opinion, having regard to the circumstances including “health or mental condition of the offender”, that it is expedient to release the offender on probation, either to convict the offender and make a probation order, or make such order without conviction. In felony trials, the court under the old practice had to convict, but could release the accused on probation. See, Criminal File 34/46 (the Tuina Case), not reported but noted in (1946) 3 Hapraklit 233. The defendant was charged with embezzlement. He pleaded guilty to the charge and was convicted. After conviction, but before sentence, his counsel introduced evidence of his mental condition. Since the court could not commit him to an institution—having convicted him and in the absence of a verdict of “guilty but insane”—rather than send him to prison and trust to his certification under sec. 62 of the Prison Ordinance, the court chose to invoke sec. 3 of the Probation Ordinance and ordered him released on probation. This maneuvre saved the defendant both from prison and from the insane asylum.

Israel courts need no longer resort to “devious means” to achieve the desired ends, since under vastly improved procedures, such as the provisions of sec. 19 of the Penal Law Amendment (Modes of Punishment) Law, 1954, secs. 172, 173 and 176 of the Criminal Procedure Law, 1965, the court may, after conviction and before passing sentence, order the medical examination of the accused and the preparation of a comprehensive report concerning all his personal circumstances, physical, mental, social, economic and others, and only then impose the appropriate sentence, which need not necessarily involve a term of imprisonment, but rather a variety of alternatives such as probational release, conditional imprisonment, deferred imprisonment or a fine.

On the question of the admissibility of evidence of mental disorder in mitigation of punishment after a plea of guilty, see a most instructive note in Glueck, Mental Disorder, 412–18; a good example of the difficulties encountered by the Israel courts due to the absence of appropriate institutions outside prison for the confinement of persons who are not insane within the substantive tests of irresponsibility yet mentally ill to a degree that they are potentially dangerous, is found in Krady v. A.G. (1956) 10 P.D. 1193. The accused was convicted on a charge of sodomy with a minor and sentenced to three months' imprisonment. He appealed against sentence. Medical evidence, adduced by the probation officer, showed that he was a psychotic personality and that imprisonment might lead to a deterioration in his mental condition. The court was of the opinion that the short prison sentence was wholly inappropriate. The accused could either be sentenced to a long prison term which would enable his treatment in a closed institution, or be put on probation for a long period. Since the court could not pronounce a longer sentence of imprisonment—without an appeal on sentence by the defence—it was decided that the best way to protect both the public and the accused himself was to put him on a long probation period with supervision rather than enforce the short and useless prison sentence.

¹⁴⁹ See Williams, op. cit. sec. 148, 449–50; Royal Commission Report, para. 445, p.153. East, , Forensic Psychiatry (1927), 34.Google Scholar

¹⁵⁰ Williams cites instances showing that counsel may probably disregard the client's wishes in such cases. See Williams op. cit. sec. 148, p. 450, note 5.

¹⁵¹ This is one of the important reasons discussed by the Royal Commission, when considering a proposal to permit the court and the prosecution to raise the issue. See Report, art. 447, p. 153.

¹⁵² See sec. 62 of The Prisons Ordinance, (supra, n. 23). The Minister of Police (originally the High Commissioner) may order in writing the committal of a convicted prisoner to a “fit place for the custody and treatment of lunatics”, upon a report by the medical officer of the prison. This provision is still in effect in Israel. The Statute does not treat the problem of insanity after conviction. The relationship between sec. 62 and the general procedure for commitment under The Statute, particularly with respect to the wide powers conferred upon the district psychiatrist, has not yet been litigated and is thus left to conjecture. The symmetry of the existing law would have been enhanced had the section been amended or repealed, and its particular problem blended more harmoniously with the new Statute, at least in transferring the authority from the Minister of Police to the Minister of Health, who is responsible for the operation of The Statute under sec. 32, enabling the district psychiatrist, who is answerable to the Minister of Health, to make the necessary recommendations to him.

¹⁵³ Interesting statistics are set out in the Royal Commission's Report, para. 445, p.153, showing that in England the defence of insanity was not raised in 15 out of 33 cases in which the prisoner was later certified insane. In four of these cases a plea of guilty was accepted.

¹⁵⁴ In Belgium, the matter is covered by The Social Defence Law of 1930. A mental examination is almost invariably held in sufficiently serious cases. It is generally ordered at the request of the defence or the prosecution and is carried out by a doctor appointed by the court. If the accused is insane, the prosecution asks the court to order his detention in a criminal lunatic asylum. There is no trial to determine whether he committed the act, but the court must be satisfied of his guilt from the dossier prepared by the investigating magistrate. See Royal Commission Report, Appendix 9, p. 420; Biggs, “Procedure for Handling the Mentally Ill Offender in Some European Countries” (1955/56) 29 Temple L.Q. 254, 259. In the Netherlands, a full mental examination may be ordered by the district judge, whether on his own initiative or at the request of the prosecution (or on the advice of the medical officer of the remand prison), of the defence or of the accused himself. If the defence disputes the examining doctor's findings that the accused is responsible, the case goes to trial. The trial court may call the doctor to give oral evidence and examine him in chief. Both defence and prosecution may question the evidence. See Royal Commission Report, 421–22; Biggs, ibid., 260–61. A somewhat similar procedure prevails in Norway, where the prosecution may ask the court to appoint two psychiatrists to examine the accused. The doctors have to decide the question of his mental condition at the time of the offence. The report is accepted and acted upon by the court in the majority of cases. See Royal Commission Report, ibid., 422–23, Biggs, ibid., 258–59. Some European countries stress the role of the judge in raising the issue of criminal responsibility. Thus, in Switzerland, when the judge is in doubt as to the responsibility of the accused, he can have the mental state of the accused examined by one or more experts. The inquiry may be ordered by the judge on his own initiative or at the request of the defence (the prosecution is excluded from raising the issue). See Royal Commission Report, 424–25, Biggs, ibid., 260. In Soviet Russia, whether or not the matter was considered in the preliminary investigation (where a psychiatric report with a decision as to imputability or non-imputability could have been submitted), the trial court must call a psychiatric expert whenever a doubt is raised as to the accused's imputability. The court on its own initiative, or at the request of the accused or the prosecution, may order a new examination if dissatisfied with the conclusions arrived at in the preliminary examination. See Berman, and Hunt, , “Criminal Law and Psychiatry: The Soviet Solution” (1949/1950) 21 Stanford L.R. 635, 655–56Google Scholar.

¹⁵⁵ See Royal Commission Report, para. 454, pp. 155–56. See criticism of this conclusion by Williams, op. cit., 313, who refers to the objections stated by the Commission as “not sufficiently weighty”.

¹⁵⁶ See Weihofen, , cit. (1955/1956) 29 Temple L.Q. 235–39.Google Scholar

¹⁵⁷ See n. 147 supra.

¹⁵⁸ The provisions of sec. 6(d) should be so construed, since the power of the court to order such examination ought to be a condition precedent to its power to raise the issue of insanity against the will of the accused. Unfortunately, the language of sec. 6(b) and (d) is ambiguous, and might lend itself to a construction depriving the court of power to order the mental examination of the accused. See n. 80 supra and the text thereof.

¹⁵⁰ See sec. 6(c) in n. 39 supra.

¹⁶⁰ See Anonymous v. A.G. cited in n. 98 supra.

¹⁶¹ The English formula under the Criminal Lunatics Act, 1800, was “not guilty on the ground of insanity”. The form of the verdict was changed by The Trial of Lunatics Act, 1883, at the instance of Queen Victoria, who was shot at by a man later acquitted on the ground of insanity. The Queen asserted that he must have been guilty, because she had seen him fire off the pistol herself. So the verdict since has been “guilty of the act or omission charged against him, but insane at the time”. This verdict was contracted into the misleading form of “guilty but insane”. The Palestine legislature erroneously supposed that this was the form required by English law and expressly introduced it into the Palestine law in sees. 54 and 21 (see n. 19 supra and text). See also the critical remarks on the form of the verdict which was “illogical and misleading and its English origin derived from a merely accidental reason”, by Justice Agranat, in the Mandelbrot Case (cited in n. 7 supra) on p. 334.Google Scholar Similar observations were made in the Royal Commission's Report, art. 458–59, p. 157. See also critical remarks by Lord Atkin in (1925) 159 L.T. Journal 436. The form of the special verdict underwent a further, more recent, change in sec. 1 of the Criminal Procedure (Insanity) Act, 1964. See n. 163 infra and text.

¹⁶² Some Commonwealth states such as Canada (sec. 966 of the Penal Code), Queensland (sec. 647) and Western Australia (sec. 653) retain the old form of the verdict of “not guilty by reason of insanity”. Similar forms obtain in most jurisdiction of the United States. See Weihofen, op. cit., 363–65. The law of Scotland has retained the Old English form. See sec. 88 of the Lunacy (Scotland) Act, 1857; Royal Commission Report, art. 457, p. 157.

¹⁶³ See sec. 2(1) of the Trial of Lunatics Act, 1883, before its amendment by sec. 1 of the Criminal Procedure (Insanity) Act, 1964.

¹⁶⁴ Sec. 3 of the Criminal Appeal Act, 1907, confers a right of appeal to the Court of Criminal Appeal, against conviction and sentence. See Halsbury's, Laws of England, vol. 16, art. 957, p. 521.Google Scholar

¹⁶⁵ See n. 161 supra.

¹⁶⁶ See R. v. Ireland [1910] 1 K.B. 654 and R. v. Machardy [1911] 2 K.B. 1144. The first doubts as to the correctness of the Machardy Case were raised soon after, in R. v. Hill (1911) 7 C.A.R., 26.

¹⁶⁷ [1914] A.C. 534.

¹⁶⁸ The principle of the Felstead Case was later applied in R. v. Taylor [1915] 2 K.B. 709, to bar the right of appeal against a special verdict to the Court of Criminal Appeal by way of case stated under the Crown Cases Act, 1848, the meaning of the word “convicted” in sec. 1 of this Act being held to be the same as the word “convicted” in sec. 3 of the Act of 1907.

¹⁶⁹ [1961] 3 All E.R. 737; [1963] 1 Q.B. 120.

¹⁷⁰ See sec. 2 of the Criminal Procedure (Insanity) Act 1964, and general note, Halsbury's Statutes of England, 2d ed., volume 44, p. 153.

¹⁷¹ See n. 39. See the Lichtenstein (n. 147) and Mandelbrot Cases (n. 37).

¹⁷² See note by M.H.L, . “Guilty but Insane; Should there be a right of appeal” (1957) Law Journal, 611.Google Scholar

¹⁷³ Under English practice before the Murder (Abolition of Death Penalty) Act of 1965, in cases of feigned insanity (the issue could not be raised except by the defendant) the person was detained at Broadmoor for a period equivalent to that which he would have served in prison if he had been sentenced to death and the sentence had been commuted to imprisonment for life. See Royal Commission on Cap. Pun. Minutesthe United States, the situation is just as paradoxical. The verdict of acquittal in the case of feigned insanity enables the person to obtain his discharge from the institution by writ of habeas corpus upon the showing that he is not mentally ill,and yet this person is immune from prosecution. For just such instance, see Yankulov v. Bushong (1945) 80 Ohio App. 437; 77 N.E. 2d 88.

¹⁷⁴ Proposals for altering the English rule were considered by the Atkin Committee, Cmd. 2005, 12. The Committee said that the only case where there could be any reasonable ground for complaint would be where the issue was raised against the will of the prisoner who was in fact sane but unable to prevent the issue being raised. The Committee, however, discarded the proposal on the ground that “in practice such cases do not occur”. See criticism of this conclusion by Williams, op. cit. sec. 150, pp. 455–56. It seems that following such criticism, and due to a conflict of practice which prevailed in England after the enactment of the Homicide Act, 1957, permitting the prosecution on certain occasions to call evidence on the insanity of the accused when the plea of diminished responsibility was raised by him, the right of appeal was finally granted in the 1964 Act. See n. 170 supra.

¹⁷⁵ It has been held in numerous American decisions that the verdict declaring the accused mentally irresponsible constitutes an acquittal. The criminal proceedings being thus concluded, the State Statute alone governs and since no appeal is provided therein, no right of appeal exists. See People v. Lee (1929) 97 Cal. App. 321, 275 Pac. 815; Campbell v. Downer (1915) 94 Kan. 674, 146 Pac. 1039; Caffey v. State (1900) 78 Miss. 645, 29 So. 396. On the other hand, it was held in some jurisdictions that the order of the court committing the defendant to an insane hospital is a final judgment depriving him of his liberty and thus entitling him to appeal. See Morgan v. State (1912) 179 Ind. 300, 101 N.E. 6. People v. Scott (1927) 326 Ill. 327; 157 N.E. 247. The Statute of the District of Columbia expressly provides for such appeal. See D.C. Code (1951) tit. 24, art. 301.

^175a A most comprehensive note on the disposal of mentally ill defendants acquitted of crimes by reason of their illness, in the United States, is found in Glueck, , Law and Psychiatry, 120, n. 55.Google Scholar See also text ibid., 119–30, and on the issue of “dangerousness” and release procedures, Goldstein and Katz, op. cit., 226–39. For a short critique of English practice (prior to the 1964 Act) see Brett, op. cit., 175–76.

¹⁷⁶ See State ex rel. Colvin v. Superior Court for Walla Walla County, (1930), 159 Wash. 335, 293 Pac. 986; 73 A.L.R. 555, Hall and Glueck, op. cit., 325.

¹⁷⁷ It was been held that since no appeal lies, the only remedy is the writ of habeas corpus. See M. v. Slayback (1930), 209 Cal. 480, 228 Pac. 769; People v. Scarborough (1942), 52 Cal. A. 2d. 210; 125 P. 2d. 893.

¹⁷⁸ Some American States have tried to combat the disadvantages of the acquittal theory by providing that a person accused of certain types of crimes must be committed to an insane asylum and cannot be released, even though he may later recover his sanity, without the consent of some discretionary body. See G. L. Mass (Ter. Ed.) c. 123, art. 101; Stat. Ann. Mich. (1937) art. 28, 933(3). See Glueck, , Law and Psychiatry, 120 n. 55, 122–23Google Scholar, Goldstein and Katz, op. cit., 226–39.

¹⁷⁹ See text of sec. 6 in n. 39 supra.

¹⁸⁰ The reasons given by the Atkin Committee for not permitting the right to appeal were that the issue of insanity cannot be raised against the will of the accused so that when raised by him no right of appeal ought to lie. See Cmd. 2005, 12.

¹⁸¹ See the Mandelbrot Case (n. 37 supra) 334.

¹⁸² The tests of irresponsibility (non-punishability) are not changed by The Statute as held in the Mandelbrot Case, supra.

¹⁸³ Such construction of The Statute will draw it nearer to the decisions in the Ireland and Machardy Cases (see n. 166 supra) which were overruled in England by the Felstead Case (n. 155 ^b supra) which held the verdict indivisible. It will also be nearer to the spirit of the American decisions to permit appeal only on the ground of deprivation of liberty but not on the findings of insanity and commission of the offence (see n. 178 supra.) There seems to be no conceivable reason why the Israel legislature, in drafting a new and comprehensive statute, should adhere to such decisions which were the product of necessity and fancy footwork resulting from the restraining effects of the acquittal doctrine as settled previously in Anglo-American law and the tortuous means adopted to avoid such effects.

¹⁸⁴ The court in the Joseph Case (see n. 97 supra) discussed the question of appeal from an order made under sec. 6(a) of The Statute, whether it lies only against an hospitalization order or also against a decision concerning the unfitness of the accused to stand trial without ordering his hospitalization. The question was not resolved by the court.

¹⁸⁵ Thus, for instance, a discussion of “tests” alone is almost divorced from reality. It is not sufficient to treat these technical rules of substantive law; we must in addition consider the practical results to the accused and to society of the verdict of acquittal that follows the successful application of these tests of irresponsibility. See Glueck, , Mental Disorder, 391.Google Scholar

¹⁸⁶ See Glueck, ibid.

¹⁸⁷ See Weihofen, op. cit., 483. The deterrent effect of punishment as a goal is more prevalent amongst Anglo-American criminologists. Punishment is justified not as an end in itself, as a necessary consequence of crime, but only in so far as it tends to protect society. See Oppenheimer, The Rationale of Punishment (1913). Radzinowicz, , Present Trends of English Criminal Policy, in the Modern Approach to Criminal Law (1945), 29–30.Google Scholar

For an interesting discussion of the purposes of punishment and their relation to the insanity concept see Ehrenzweig, op. cit., 433–39. Szasz maintains that defendants found irresponsible by reason of mental illness should be treated as far as release procedures are concerned as “bona fide innocent”, see “Civil Liberties and Mental Illness—Some Observations on the case of Miss Edith L. Hough” (1960) 131 J. Nervous Diseases, 58, 59 and a carefully thought out conflicting view in Goldstein and Katz, op. cit., 228–72.

¹⁸⁹ See Glueck, , Mental Disorder 392–93.Google Scholar It is only later during the 19th century that statutes permitting the detention of such persons were enacted.

¹⁹⁰ In the words of Dr. H. Singer, quoted by Wigmore, in Illinois Crime Survey (1929) 743 Google Scholar: “From a practical point of view does it make any difference whether we label a man responsible or irresponsible for his act? Would it not be equally pragmatic to hold everyone responsible for his acts, whether sane or insane and then adopt measures that will (1) insure society against further criminal acts on the part of this person; (2) establish clearly that society cannot, for its own protection, tolerate such acts regardless of the reasons back of them; and (3) rehabilitate the offender, if that is possible. These purposes are all that are hoped for from punishment; the introduction of the mythical concept of responsibility merely clouds the issue.”

^190a On the concept of dangerousness of the defendant to himself or to society and its evaluation for release purposes through balancing of the risks of the individual liberty and public safety involved in such a value-weighing process of decision, see Goldstein and Katz, op. cit., 225–39, Krash, op. cit., 942–48.

¹⁹¹ See “The Law for Social Protection”, enacted in Belgium in 1930, or “Measures of Social Defence” in art. 11 of the Soviet Criminal Code (1947) cited in Michael and Wechsler, op. cit., 853–54.

¹⁹² See Ferri, Report and Preliminary Project for an Italian Penal Code. (Bett's trans. 1921) 380–82Google Scholar; See also, Bettaglini, , “The Fascist Reform of The Penal Law in Italy” (1933) 34 J. Crim. L., 278.Google Scholar

¹⁹³ See Glueck, , Mental Disorder, 448–49.Google Scholar

¹⁹⁴ See Dession, , “Psychiatry and The Conditioning of the Criminal Justice” (1937) 47 Yale L.J. 319, 335–36.Google Scholar

¹⁹⁵ See Anonymous v. A.G. cited in n. 98 supra. It should be noted that in England such discretion is not granted to the courts. Under the Mental Health Act, 1959, the court must issue a hospital order which is subject to restriction on discharge without limitation of time (see sec. 71). Even the Court of Appeal is so bound under sec. 5(1) of the Criminal Procedure (Insanity) Act, 1964, and Sched. 1 thereof, providing that an accused under “disability” will be admitted to a hospital specified by the Home Secretary; the consequence of an order under this section will be substantially the same as that under sec. 71 of the 1959 Act. Hospitalization of defendants found incompetent to stand trial is also mandatory in most American jurisdictions. See, for instance, federal and District of Columbia procedures discussed in text and nn. 71 ^a_c supra.

¹⁹⁶ See text of sec. 6(a) in n. 39 supra.

¹⁹⁷ These conclusions are stated with reservation, since the subsequent discussion will show that the construction of The Statute on this point is by no means clear.

¹⁹⁸ Sec. 17 reads as follows:

“17(a) When a sick person has been admitted to a hospital under … Section 6, and a medical board is of the opinion that he should be discharged, the Committee shall prescribe the time of his discharge; notice of the time of the discharge shall be given to the Minister of Health and the District Attorney.

(b) When an accused person was admitted to a hospital after the court had found that by reason of his being ill he was not fit to stand trial, and he is discharged from hospital under sub-section (a), the Attorney General may direct that he be brought to trial for the offence with which he was originally charged.”

¹⁹⁹ See provisions referred to in general survey.

²⁰⁰ See text in n. 199 supra.

²⁰¹ See text in n. 39 supra.

²⁰² The difficulties in regard to reinstitution of proceedings attributed to the obscure drafting of The Statute cannot arise in England under the present legislation since in all cases hospitalization is mandatory (see n. 196 supra) and clear provisions are made for the remittal of the accused from hospital to prison and the mode for determining his ability to stand trial. See sec. 5(4) of the Criminal Procedure (Insanity) Act, 1964.

²⁰³ Prior to 1949 (before the enactment of sec. 4246 of the Criminal Code by Congress) the Federal Government had to release criminal defendants if they were insane. They could not be tried nor confined in Federal hospitals, due to the idea that control of the general field of insanity resides exclusively in the States and that the Federal Government is wholly without jurisdiction. This situation was remedied by legislation. See note on Federal Hospitalization of Insane Defendants under Sec. 4246 of the Criminal Code (1954/5) 64 Yale L.J. 1070 and citations in note 3 there.

Considerable attention is being given to the problem of safeguarding the constitutional rights of criminal defendants involuntarily committed to mental hospitals, and a number of vigorous procedures were recently introduced in order to achieve this goal. See Cummings, op. cit., 216 and n. 26; Bishop, op. cit., 1517; “A Logical Analysis of Criminal Responsibility and Mandatory Commitment”, loc. cit., 1354–65.

²⁰⁴ See the Mandelbrot Case cited in n. 37 supra.

²⁰⁵ See sec. 6(d) cited in n. 39 supra.

²⁰⁶ See sec. 6(e) in n. 39 supra.

²⁰⁷ See sec. 2 of the Criminal Lunatics Act of 1800.

²⁰⁸ See Anonymous v. A.G. cited in n. 98 supra and also Krochmalnik v. A.G. (1963) 17 P.D. 1219.

²⁰⁹ See citations of legislation in Weihofen, op. cit., 389 et. seq. See also citations in Glueck, , Law and Psychiatry, 120, n. 55, and text 120–31.Google Scholar

²¹⁰ See sec. 5(1)(a) of the Criminal Procedure (Insanity) Act, 1964.

²¹¹ See sec. 6(b) in n. 39 supra.

²¹² See Royal Commission Report, 426; Civil Penal Code Act, 1930.

²¹³ See Royal Commission Report, 426; The Law of Social Defence, 1930; International Digest of Health Legislation (1955) 60.

²¹⁴ See Royal Commission Report, ibid., 427; International Digest, ibid., 61.

²¹⁵ See International Digest, 61.

²¹⁶ Ibid., 62.

²¹⁷ See Berman and Hunt, op. cit., (1950) 2 Stanford L.R. 635, 657.

²¹⁸ See sec. 14 of the Swiss Penal Code (cited in the Royal Commision's Report, 428) which permits detention if the offender's actions constitute a danger to public order and security.

²¹⁹ In France the person is handed to the Prefect who is the appropriate administrative authority in accordance with the civil law of lunacy. He alone has the power to detain such person. See International Digest, 61; Royal Commission Report, 426.

²²⁰ See Royal Commission Report, 427.

²²¹ Ibid., 427.

²²² See sec. 219 of the Italian Penal Code, 1930, cited in Michael and Wechsler, op. cit, 855.

²²³ Compare sec. 4.08 of the American Model Penal Code (1955) and Weihofen's observations, (1955/56) 29 Temple L.Q. 235, 246. There are, however, views maintaining that determination on the question of release should be entrusted jointly to the courts and psychiatrists, since “interaction in specific cases between the court's inherent interest in civil rights and the psychiatrist's primary interest in therapy will define and redefine criteria for release which will amalgamate and reflect these values.” See Goldstein and Katz, op. cit., 231–32. For a powerful opinion submitting that psychiatrists should be solely entrusted with the decision to release hospitalized mental offenders without sharing this authority with the courts, see Szasz, in (1960) 131 J. Nervous Diseases, 59.

²²⁴ See discussion in Williams, op. cit., art. 152, p. 462 and part V of The Mental Health Act of 1959.

²²⁵ See secs. 60, 61, 62, 63, of The Mental Health Act of 1959, and a discussion of sentencing policy and practice of the English courts in Thomas, , “Sentencing the Mentally Disturbed Offender” (1965) Crim. L.R. 691.Google Scholar

²²⁶ See Weihofen, op. cit., 375; Deutsch, op. cit., 411–13.

²²⁷ Florida, New Hampshire, Vermont. See texts of legislations, in Weihofen, op. cit., 379 et seq.

²²⁸ See Royal Commision's Report, 426–28; Digest of Health Legislations, 60–62.

²²⁹ See ibid.

²³⁰ See ibid.

²³¹ See sec. 222 of the Code, cited in Michael and Wechsler, op. cit., 855–56.

²³² Under the Law of Social Defence, 1930, the court may order the accused detained for a period of 5, 10 or 15 years, according to the nature of the offence. See Royal Commission, op. cit., 426.

²³³ Art. 37 of the Penal Code provides that the offender may not be punished, but may be sent to a mental hospital for a period of one year, or detained at Her Majesty's pleasure for a period of two years. These provisions are much milder than those in Italy and Belgium, and indeed may not be regarded as punitive in nature but rather designed to ensure adequate treatment and care. See Royal Commission, ibid., 427.

²³⁴ See text in n. 199 supra.

²³⁵ Sec. 16 provides: “Except as provided in section 17, a director may discharge a sick person from a hospital, if he has examined him and found that he has recovered or that his hospitalization is no longer required in the interests of the public.”

²³⁶ See citation in n. 42 supra.

²³⁷ See text in n. 235 supra.

²³⁸ The sec. reads:

“19. When a person has requested that a person be discharged from the hospital and the director has refused to discharge him, the applicant may submit to the psychiatric board an objection to the decision of the director.”

²³⁹ Sec. 25, permitting appeal to the District Court, specifically states that such appeal may only be lodged against the decision of the board in cases covered by sec. 19 of The Statute. See ibid.

²⁴⁰ Kansas, Missouri, Nebraska, Oklahoma, Virginia. In a number of States the statutes are silent or unclear; the implication is that such persons may be discharged in the same way as any other patients, which usually means by the superintendent of the hospital. These are Alabama, Arizona, District of Columbia, Idaho, Mississippi, Montana, Nevada, North Dakota, Oregon, South Carolina, South Dakota, Tennessee, Wyoming. See Weihofen, op. cit., 377–78, notes 7 and 8. But see remarks in n. 223 supra.

²⁴¹ See Weihofen, op. cit., 376, note 3.

²⁴² Ibid., 376.

²⁴³ See Royal Commission's Report, 426.

²⁴⁴ See Weihofen, op. cit., 376, note 4. See sec. 4.08(2) of the American Model Penal Code (1955) and remarks by Weihofen, 29 Temple L.Q. 247–48.

²⁴⁵ Such practice is followed both in the Netherlands and Sweden, where release from a mental hospital does not require the consent of the judge but is granted in the former by the administrative authorities and in the latter by the Royal Psychiatric Board which is composed of doctors and lawyers. See Royal Commission's Report, 427.

²⁴⁶ See Glueck, Mental Disorder, 409.