Abstract: This article compares the situation in which an individual with diminished mental capacity is prosecuted for a criminal offence in England and Wales and in the Netherlands, with a particular focus on the role of the expert medical witness. It is not unreasonable to assume that, whatever the jurisdiction, the existence of a condition affecting the mental capacity of the defendant may affect how the culpability of the accused is assessed by the courts and translated into a verdict. By comparing culpability in the context of the role of experts, consideration will be given to how substantive and procedural law hang together in the different jurisdictions. A comparison between England and Wales (as an example of a common law jurisdiction) and the Netherlands (as an example of a civil law jurisdiction) may reveal very different outcomes with regard to the verdict and the way it is reached that have far-reaching consequences for the person involved. This article will examine why such differences may occur, in particular whether they are the result of the common law’s reliance on just two possible reasons for the absence of culpability in such cases (insanity or automatism, or, conceivably, diminished responsibility if murder is the charge), while the civil law is based on a theoretically underpinned doctrine that allows for a greater range of defences with regard to culpability (and its relative absence) in general. The topic not only has possible practical implications, but could also contribute to the growing body of comparative scholarship: comparisons of substantive criminal law, unlike its many procedural aspects, are few and far between. One of the reasons is that substantive law is shot through with moral considerations that are very diffi cult to ascertain and muddy the comparative waters considerably. In this case, however, the issue is not the offence itself, but whether and how a mental condition may affect culpability. While it could be said that the recognition of such conditions is also contingent on their social and moral connotations, the effect of this is likely to be much less than in a comparison of (perpetrators) of sexual offences per se.
Keywords: comparative criminal law; mental capacity; criminal liability; experts in criminal process; mental condition defences
JICL welcomes full length articles (generally not exceeding 13,000 words inclusive of footnotes), shorter contributions in the form of notes and comments (generally not exceeding 8,000 words inclusive of footnotes) and book review articles of not more than 6,000 words.
We accept contributions for consideration on an exclusive submission basis. When submitting an article please certify that it is an unpublished article (that is, it has not been previously published in substantially similar form or with substantially similar content) and that it is not under consideration by any other journal.
To facilitate anonymous review, please give the names of authors and their short biographical information and acknowledgments in a separate page.
Authors retain copyright in the words used, but upon submission of material for publication, grant Sweet & Maxwell a licence to publish the submission in print and/or digital formats. Sweet & Maxwell retains copyright in the design, format and layout of all material published in JICL.
Once submissions are published, authors are entitled to one copy of the issue, 10 offprint copies and a PDF version of the submission.
Authors who send articles published in JICL to other publishers or media must include a reference to the publication of the article by JICL and Sweet & Maxwell.
Contributions and book reviews should be submitted in Microsoft Word format by way of email attachment to Professor Anton Cooray at Anton.email@example.com.
Authors should follow the OSCOLA citation system (http://www.law.ox.ac.uk/publications/oscola.php), except that we prefer authors to use indenting sparingly.
JICL uses the following heading levels: Main headings are in bold and preceded by a Roman numeral; second-level headings are in bold and italics and preceded by an uppercase alphabet; third-level headings are preceded by an Arabic numeral; and fourth-level headings are in italics and preceded by a lowercase alphabet.