The Japanese M’Naghten Rule: the assessment of the insanity defence in Japan

ABSTRACT

The assessment of the insanity defence for mentally disordered offenders is a significant issue in murder trials in Japan. While acts of insanity are not punishable in theory, insanity is not an absolute defence even when proven; that is, the existence of a mental disorder that influenced the crime does not guarantee that an offender will not face the death penalty. Decisions about the sanity and responsibility of mentally disordered offenders are often made without evident basis, and the lack of guidelines in this regard often leads to subjective assessments. This article provides an overview of the problems surrounding the assessment of the insanity defence, mainly the psychiatric evaluations and the wrongness limb of the M’Naghten Rules as applied in Japan. Supplemented by case examples to illustrate the inconsistencies in the decision-making process, this article highlights the need for greater clarity and consistency in the assessment of the insanity defence.

KEYWORDS:

• Japan
• M’Naghten
• insanity defence
• psychiatric evaluation
• mental disorder
• judicial discretion

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Erik Herber, Lay and Expert Contributions to Japanese Criminal Justice (Routhledge 2020) 40.

2. ibid 41.

3. ibid.

4. Available at https://www.cas.go.jp/jp/seisaku/hourei/data/PC.pdf accessed 7 November 2023.

5. Herber (n 1) 43.

6. In Japan, there are currently 19 crimes punishable by death under various laws (see CrimeInfo for the full list https://www.crimeinfo.jp/death_penalty_en/ accessed 7 November 2023). Therefore, while Article 39 does not only apply to homicide, for the purposes of this article, it will only be examined within the scope of homicide.

7. Article 479(1) of the Code of Criminal Procedure (Act No 131 of 1948) states: ‘If a person condemned to death is in a state of insanity, the execution shall be stayed by order of the Minister of Justice’.

8. The idea was that since it is not possible to know whether humans possess free will or not, it is also not possible to establish whether an offender could distinguish right from wrong. It was stated that ‘agnosticism is the view that it is impossible to know the mechanism of the influence of mental disorder on the crime, and a diagnosis of schizophrenia tends to weaken the defendant’s responsibility … Thus, in the 1980s, the results of post-crime medical examinations were emphasized, and the diagnosis of schizophrenia itself had a significant impact, and it can be inferred that the influence of agnosticism remained’. Hiroko Kashiwagi and others, ‘Investigating the Verdicts of Mass Murder Cases in Which the Prosecutors Sought the Death Penalty and Criminal Responsibility Became the Focus: The Change of Psychiatric Evaluations and Criminal Responsibility Judgements in Serious Cases (2020) 122 Psychiatria et Neurologia Japonica 118.

9. The control element refers to the second part of the Daishin’in’s definition, ‘not being able to act in accordance with that distinction’, which is discussed in the second article.

10. Tokyo Bar Association (2013) in Herber (n 1) 54.

11. Hiroko Kashiwagi and Naotsugu Hirabayashi, ‘Death Penalty and Psychiatric Evaluation in Japan’ (2018) 9 Front Psychiatry Art 550.

12. ‘With regard to the existence or absence and level of a mental disorder, which are biological factors, and the existence or absence and level of the impact of such disorder on psychological factors, considering that making a diagnosis of these factors is the duty of clinical psychiatry, if opinions given by psychiatrists as expert witnesses have been produced as evidence, the court should make a determination by giving due consideration to these opinions, unless there are reasonable circumstances for rejecting them, such as that there is a doubt about impartiality or ability of the expert witnesses or that there is a problem with the preconditions for the expert opinions’ (Supreme Court Second Petty Bench, 2006(A) 876, verdict of 25 April 2008).

13. There are those who argue that the decision of life and death may simply be a question of good or bad luck; Miyazawa Koichi wrote about his experience with a Japanese judge who told him about two cases where one defendant received the death penalty and the other received imprisonment. Even though the judge believed that the defendant who was sentenced to imprisonment had committed a more serious crime, he believed that the reason why the other defendant was sentenced to death was because the Court was in favour of the death penalty. Miyazawa (1993) in Joachim Hermann, ‘The Death Penalty in Japan: An “Absurd” Punishment’ (Hermann, 2002) 67(3) Brooklyn Law Review 827.

14. ‘Even where the court admits part of a specific expert opinion on a psychiatric test, the court may make a determination on whether or not the accused had the capacity for criminal responsibility and the degree thereof … without in effect being restricted by the other part of said expert opinion’ (Osaka High Court 2008(A) 1718, verdict of 8 December 2009).

15. Harumitsu Yamauchi, ‘The Tsutomu Miyazaki Case: His Ambivalence for Little Girls’ (Yamauchi, 2009) 16 Journal of Social and Information Studies 13 (in Japanese).

16. (1) A simple evaluation at the interrogation stage (which was not referred to in the trial); (2) a joint expert opinion by six; (3) a joint expert opinion by two; and (4) a forensic opinion. The findings are as follows: (1) ‘the possibility of schizophrenia cannot be ruled out altogether, but at the present stage, it seems to be in the range of a personality disorder’; (2) ‘at the time of the offence, the defendant had an extreme personality bias (personality disorder), but was not in a psychotic-like state, including schizophrenia’ (in both cases, mental illness was denied and full capacity was acknowledged); (3) ‘at the time of the offence, the defendant was suffering from reactive psychosis, mainly consisting of separation and hysterical dissociative symptoms, against a background of personality reactive delusional development, following delusions of sensitive relationships based on a serious disturbance in personality development surrounding hand deformities, and following the death of his grandfather’ (it was also found that ‘the accused had multiple personalities and that the accused’s other personality, Imada Yuko, was believed to have been involved in each of the murders in question’); (4) ‘at the time of the offence, the defendant was suffering from schizophrenia (hebephrenia), and was in a state of diminished mental capacity, motivated in part by the increased rage and aggressiveness of the symptoms of schizophrenia, and in part by a lack of empathy, which contributed to a reduction in his deterrent power (there is little immunity from liability)’ (Tokyo District Court, 14 April 1997, Hanrei Times, No 952, page 75).

17. Tokyo District Court (n 15).

18. The Court stated: ‘When he was detained, he generally admitted to the crimes at the investigation stage. However, at the trial stage, he gradually denied committing the crime, saying it was like a dream or that he did not remember it, and as his detention continued, he gradually added and developed delusional explanations, indicating that he was mentally unstable’ ibid.

19. ibid.

20. Supreme Court Third Petty Bench (2001)(A) 1205, verdict of 17 January 2006.

21. ibid.

22. Although it is possible to have the mental vs physical disease discussion here, the Court’s rejection does not seem to be based on the distinction between mental and physical diseases, but rather on the fact that the disease did not affect the defendant’s reasoning.

23. Tokyo High Court, 11 December (2000) (2000), LEX/DB28075525.

24. In such a panel, unanimity is not required, which means that out of three judges and six lay judges, five votes (including at least one judge) is enough to impose a death sentence. However, three judges collectively have a de facto vote, and their vote alone is sufficient to impose a death sentence, even if the six lay judges do not agree. This system itself challenges the concept of the ‘unavoidability’ of the death penalty. See David T Johnson, ‘Capital Punishment without Capital Trials in Japan’s Lay Judge System’ (Johnson, 2009a) 7 The Asia-Pacific Journal.

25. David T Johnson, ‘Early Returns from Japan’s New Criminal Trials’ (Johnson, 2009b) 7(36) The Asia-Pacific Journal.

26. One lay judge stated: ‘Two forensic psychiatrists provided testimony as witnesses, but if you ask whether I understood, I have to say: not so much. But, the whole crime situation was recorded on a surveillance camera, so based on that, I stated my opinion [during deliberation] that if the defendant was mentally disturbed, it wouldn’t have been like that. (…) I looked at the defendant’s movements and actions, and so on, and drew my conclusions’ in Herber (n 1) 66.

27. Kashiwagi and Hirabayashi (n 11).

28. M’Naghten’s Case (1843) 10 Cl & Fin 210.

29. At the time of the killing, M’Naghten was suffering from delusions and explained the reason for wanting to kill the PM as: ‘The Tories in my city follow and persecute me wherever I go, and have destroyed my peace of mind. They do everything in their power to harass and persecute me; in fact they wish to murder me’. Henry Weihofen, ‘Capacity to Appreciate Wrongfulness or Criminality under the A.L.I Model Penal Code Test of Mental Responsibility’ (Weihofen, 1967) 58 Journal of Criminal Law and Criminology.

30. M’Naghten’s Case (n 28).

31. ibid.

32. [1957] 1 QB 399.

33. Norval Morris, ‘“Wrong” in the M’Naghten Rules’ (Morris, 1953) 16 Modern Law Review 435.

34. (1917) 12 Cr App R 21.

35. ibid.

36. [1952] 2 QB 826.

37. ibid.

38. [2007] EWCA Crim 1978.

39. ibid.

40. [2022] EWCA Crim 341.

41. ibid.

42. Keith JB Rix, ‘Towards a More Just Insanity Defence: Recovering Moral Wrongfulness in the M’Naghten Rules’ (2016) 22 BJPsych Advances 44.

43. However, this distinction between legal and moral wrong or physical diseases does not seem to surface often in trials, or at least the author has not encountered many distinctions.

44. This is a matter where it is possible to get lost in translation. In this context, ‘responsibility’ does not refer to diminished responsibility as a defence, but rather to the ‘amount of responsibility’ a defendant has. That is, after the court considers the psychiatric evaluation and concludes that the defendant has full ‘capacity’, they proceed to the sentencing stage where they analyse the ‘amount of responsibility’, which can be reduced after considering the mitigating factors. In this case, even though the defendant was found to have full ‘capacity’, after evaluating the mitigating factors, the judge concluded that the defendant had ‘diminished responsibility’, and that the death penalty could be avoided.

45. Yokohama District Court (2018b)(WA) 2033, verdict of 9 November 2021.

46. ibid.

47. Instead, the only mitigating factors the Court considered and rejected in this regard were: the defendant had no criminal record, had a congenital forearm disorder, cooperated with the authorities, and his mother sent money as compensation to the victims’ families (Supreme Court Third Petty Bench, 2001(A) 1205, verdict of 17 January 2006). The consideration of the mitigating factors deserves special attention, as there are no guidelines in this regard, but such attention will not be given in this article.

48. Supreme Court of Japan, ‘Outline of Criminal Justice in Japan’ (2023) available at https://www.courts.go.jp/english/vc-files/courts-en/Material/Outline_of_Criminal_Justice_in_JAPAN_2023.pdf accessed 8 November 2023.

49. Article 248 of the Code of Criminal Procedure states: ‘Where prosecution is deemed unnecessary owing to the character, age, and environment of the offender, the gravity of the offense, and the circumstances or situation after the offense, prosecution need not be instituted’.

50. It was suggested that there were also cases where doctors were pressured by the prosecution to change their evaluation to fit what the prosecutor sought; when the doctor who experienced this in 2001 refused to change his opinion, he was not called to conduct further evaluations by the prosecution. Amnesty International, ‘Hanging by Thread: Mental Health and the Death Penalty in Japan’ (2009) available at https://www.amnesty.org/download/Documents/44000/asa220052009eng.pdf accessed 10 November 2023.

51. Research and Training Institute, White Paper on Crime (2022) The Ministry of Justice Japan. Available at https://www.moj.go.jp/content/001393404.pdf accessed 8 November 2023.

52. Eliot Slater, ‘The M’Naghten Rules And Modern Concepts Of Responsibility’ (Slater, 1954) 2 The British Medical Journal 713.

53. Kashiwagi and others (n 8).

54. ibid.

55. Tokyo High Court, (2018) (2018)(U) 744, verdict of 9 March 2022.

56. Kashiwagi and Hirabayashi (n 11).

57. Yokohama District Court, 22 March 2018, LEX/DB25560322.

58. Tokyo High Court (n 55).

59. ibid.

60. Slater (n 52).

61. Robin Antony Duff, ‘Choice, Character, and Criminal Liability’ (1993) 12 Law and Philosophy, 345.

62. R v Keal (n 40).

63. Osaka District Court, 20 April 1984, LEX/DB27921922.

64. Herber (n 1).

65. Keith JB Rix, ‘Prizing Open the Door to Justice: Reform of the “Wrongfulness Limb” of the M’Naghten Rules’ in Ben Livings and others, Mental Condition Defences and the Criminal Justice System: Perspective from Law and Medicine (Cambridge Scholars 2015).

66. This is especially true with regard to visionary type killers as classified by Holmes and DeBurger (see Ronald M Holmes and James DeBurger, Serial Murder (SAGE 1988)), who kill as a result of their delusion, such as Miyazaki Tsutomu who suffered from schizophrenia and argued that he was obeying the ‘Rat Man’.

67. http://www.samenow.com/conceptnovember_03.html accessed 2 October 2022.

68. Section 168(1) of the Criminal Justice and Licensing (Scotland) Act 2010 states that ‘a person is not criminally responsible … if … unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct’. Part 7 of the explanatory notes clarifies the position noting ‘the defence may be available to an accused who knew that his conduct was in breach of legal or moral norms but who had reasons for believing that he was nonetheless right to do what he did’.

69. Section 1 of the Criminal Justice Act (Northern Ireland) 1966 states: ‘“insane person” means a person who suffers from mental abnormality which prevents him— (a) from appreciating what he is doing; or (b) from appreciating that what he is doing is either wrong or contrary to law; or (c) from controlling his own conduct; and “insanity” shall be construed accordingly’.

70. In R v Sodeman [1936] HCA 75, the High Court of Australia confirmed that wrong meant morally wrong: ‘In general it may be correctly said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he does is wrong.’

71. In R v Chaulk [1990] 3 SCR 1303, it was held that ‘the word “wrong” … should be interpreted to mean “morally” and not “legally wrong” … A person may well be aware that an act is contrary to law but … is at the same time incapable of knowing that it is morally wrong according to the moral standards of society’.

72. Chapter 23(2)(b) of the Crimes Act 1961 states that wrong means ‘incapable of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong’.

73. It was suggested that ‘judges can reach a right and just punishment by intuition’. Masami Okaue, ‘Some Theoretical Problems Concerning the Sentencing under the Lay-Judge System in Japan’ (2012) Tsukuba Law Journal, No 11.

Additional information

Funding

The work was supported by the JST SPRING [JPMJSP2135].