Part of the SLSA Blog Series ‘The Legal Treatment of Defendants with Partial Criminal Responsibility’

Dr. Wannette Van Eg Dom -Tuinstra, Student Experience Manager and Associate Lecturer at The Open University Law School

‘How could a person commit such an act of inhumanity, of barbarity, of evil?’ This is the perennial question when the world faces an atrocity, whether it is the bombing of the World Trade Centre, the Bali nightclub, or the Manchester Arena, and whether it takes place as a mass suicide of the members of Heaven’s Gate, the Waco standoff of the Branch Davidians, or the release of Sarin gas by the Aum Shinrikyo. ‘People who would do such a thing cannot be in their right minds.’ This is the tentative conclusion that in a way mitigates the sense of fear, that we ourselves could ever be persuaded to commit an atrocity, or that one of our loved ones would ever be vulnerable to a barbarous belief system that justifies such crimes. 

Research from various academic disciplines however will not concur on whether those involved in extremist violence or terrorism are in their ‘right mind’ or not. This is partly due to the lamentable sparsity of quality data that explores the links between mental illness and extremism (Bhui et al 2020).

Leading terror scholar Andrew Silke (1998) cites early seminal research from Corrado (1981) who found no data to support the view that terrorists were in some way psychologically abnormal despite starting with the assertion that personality disorder of sociopathy or psychopathy was the most prominent mental disorder connected to terrorism (Corrada, 1981 in Silke, 1998). Bhui et al (2020) concur; many terrorist offenders do not have mental illnesses or even criminal histories. Silke’s review concludes that terrorists are psychologically normal, but this finding is less absolute when compared to case analyses from Ferracuti and Bruno (1981) on left-wing and right-wing Italian terrorists; left-wing terrorists rarely suffered any serious personality defects, though amongst right-wing terrorists the researchers found a much higher incidence of disturbed, borderline, or even psychotic personalities.

More recent data inclines towards this stance with Bhui et al (2020) specifically finding that depression, psychoses and autism are co-morbid factors that increase the risk of terrorist offending in the UK whilst Jensen et al (2016) report that mental illness along with alcohol and drug use are factors that increase the propensity to political violence in the USA.

For the legal scholar and legal practitioner, such contradictory findings directly impact our assessment of mens rea in this context.  It is central to our concept of justice and fairness that we hold individuals to account for their actions but exempt those who cannot be held responsible for reasons such as age, or indeed mental capacity. The idea of mens rea means that the person must have in some way been aware of the crime. In UK law, the test of culpability can be summarised as: At the time of the offence, did the offender’s impairment or disorder impair their ability, to exercise appropriate judgement, to make rational choices, and to understand the nature and consequences of their actions. (UK Sentencing Council 2020)  Assessing this criterion for blameworthiness in the context of terrorism has been largely avoided by researchers. (Knudsen 2023)

A case analysis from the UK shows that the mental health exemption for criminal liability is unlikely to succeed in terror cases. 

A yet to be published audit of cases of terror offences in the United Kingdom between the years 2010 to 2014 was conducted, specifically examining cases for indications that would imply a lack of mens rea, in defendants. The membership or alleged membership of terrorist or extremist groups included, so-called Islamic terrorists, and self-determination movements, such as Sikh terrorism, Tamil militants, members of the Irish Republican Army and the Loyalist Volunteer Force. This set of cases also included extreme factions within the animal rights movement.

A total of 81 defendants were identified in cases, because some cases included multiple defendants or applications. 

Of these 81 defendants, 44 in total had mental health issues. By far the most common problem was Post Traumatic Stress Disorder, often ignited by experiencing torture abroad or living in a conflict zone or through a humanitarian crisis. Psychosis, including diagnoses of paranoid schizophrenia, were also notable occurrences. Many defendants suffered these mental health conditions concurrent with severe depression and anxiety, notably panic disorder, and incidences of attempted suicide and self-harm were common. Many defendants were detained in secure mental hospitals and were receiving some form of treatment at the time of their hearings.

The statistically significant rate of 54% incidence of mental health problems in terror or extremist defendants, does indicate that the majority of people who have committed acts of terror or extremist violence do not have a sound psyche. 

Yet in no cases were defendants found to be so mentally unfit as to be unable to stand trial. The severity of symptoms and in particular harrowing experiences of torture and war, do indicate that the issue of mens rea is rightfully raised. Indeed, in several of the cases, this issue was raised, but the prosecution and judges patently refused to hear the possibility that the defendant could be so mentally unfit as to not be culpable for their actions. Despite the incidence of mental health problems, each defendant was found guilty on the basis that they had the necessary intentions. Lack of mens rea is not, in terror cases, a viable exemption. 

There were limitations to this scoping research exercise, not least because in many cases of terrorist or extremist violence none or not all of the perpetrators have been brought to justice, so the data set itself cannot be comprehensive. Nor did the court documents always reveal whether or not the defendant had mental or physical health issues. So, it is likely there were cases with defendants who have mental health problems which were not identified as such in our data. Equally, the court documents may not have been able to fully reveal the mental health status of defendants, owing to the fact they may not have been assessed, or in some cases there was some disagreement amongst professionals about the diagnosis. So, it is likely that some of the defendants could have been suffering particular mental health problems yet to be identified.

Building a picture of mens rea and terror offences by analysing empirical data does shift the picture from the binary “terrorist equals evil” to the nuanced and competing assertions from within the fields of psychology, law and terrorism. It should provoke re-examinations from legal scholars, practitioners and criminologists on the purpose of mens rea, not just as a formulaic element in liability, but one that is a foundation of our understanding of fairness, justice, the purposes of the criminal justice system and punishment. The data does suggest that there is something ‘special’ or especially unequal about the individual charged with terror offences and the test for mens rea; there is a trend to make exception to the mental health exemption for acts of terrorism that arguably would not have the same outcome for other types of offences. Knudsen (2023) asserts that there is something particularly serious about terrorist offences where not only are punishments more severe but the bar for applying the mental health exemption is raised.

The data presented in this blog leads to a most troubling conclusion for everyone concerned with or affected by terrorism and extremist violence; it is likely that those who have committed acts of terror or extremist violence have been victims themselves and are vulnerable.

References

Bhui K, Otis M, Silva MJ, Halvorsrud K, Freestone M, Jones E. Extremism and common mental illness: cross-sectional community survey of White British and Pakistani men and women living in England. Br J Psychiatry. 2020 Oct;217(4):547-554. doi: 10.1192/bjp.2019.14

Corrado, R. R. (1981). A critique of the mental disorder perspective of political terrorism. International Journal of Law and Psychiatry, 4(3-4), 293–309. https://doi.org/10.1016/0160-2527(81)90003-0

Ferracuti, F. and Bruno, F., 2013. Italy: A systems perspective. Aggression in Global Perspective, pp.287-312.

Jensen, M., and Gary LaFree, P.A.J., Atwell-Seate, A., Pisoiu, D., Stevenson, J., Tinsley, H. “Empirical Assessment of Domestic Radicalization (EADR),” Final Report to the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. College Park, MD: START, 2016. https://www.start.umd.edu/pubs/START_NIJ_EmpiricalAssessmentofDomesticRadicalizationFinalReport_Dec2016_0.pdf​

Silke, A. (1998) ‘Cheshire-cat logic: The recurring theme of terrorist abnormality in psychological research’, Psychology, crime & law, 4(1), pp. 51–69. Available at: https://psycnet.apa.org/doi/10.1080/10683169808401747

UK Sentencing Council, 2020, Sentencing offenders with mental disorders, developmental disorders, or neurological impairments https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/sentencing-offenders-with-mental-disorders-developmental-disorders-or-neurological-impairments/ effective from 1 October 2020; accessed 25 September 2022

Knudsen, R.A, (2023) Why Terrorism Researchers Should Care about Criminal Responsibility

Perspectives on Terrorism , MARCH 2023, Vol. 17, No. 1 (MARCH 2023), pp. 50-57

Stable URL: https://www.jstor.org/stable/10.2307/27209216