Case Note

The Journal of Criminal Law

2022, Vol. 86(2) 130–133
Morality and Command Delusions: © The Author(s) 2022
Article reuse guidelines:

Reviewing the Requirement of sagepub.com/journals-permissions

DOI: 10.1177/00220183221097324
journals.sagepub.com/home/clj
Wrongdoing in the M’Naghten Rules
R v Keal [2022] EWCA Crim 341, [2022] 4 WLR 41

Keywords
insanity, M’Naghten, choice, delusions, wrongdoing, morality

The M’Naghten Rules have governed the law’s approach to the question of a defendant’s insanity at trial
since the mid nineteenth century. Under M’Naghten, a defendant is capable of availing himself of a plea
of insanity in circumstances where, at the time of committing the actus reus of the offence, the defendant
suffers from a defect of reason, caused by a disease of the mind, which has the effect that he either does
not know the nature and quality of his act, or that what he was doing was “wrong”. Keal was a case con-
cerning the breadth of the word “wrong” under the M’Naghten Rules and whether such wording extends
to the inability to choose.
The appellant, Keal, (K), was charged with three counts of attempted murder. It was alleged that he
attacked his father, mother, and grandmother with knives, scissors, a cricket bat and dumbbells, causing
serious harm in doing so.
At trial, K’s mother and father gave evidence that during the frenzied attack, K was apologetic, citing
the devil as the cause of his actions. In light of this, the defence contended that K was insane at the time of
committing the acts in question, and that a special verdict of not guilty by reason of insanity should be
available. The prosecution contended that a plea of insanity was not open to K on the basis that, at the
time of the attempted murders, K knew that what he was doing was wrong.
Four expert psychiatrists provided evidence to the court in the form of a joint report. That report laid
out the areas of agreement between the experts, and the areas of disagreement. The four expert witnesses
agreed that K was indeed suffering from a disease of the mind that led to a defect of reasoning. They also
agreed that K knew the nature and quality of his actions. However, the experts disagreed as to whether the
defendant knew what he was doing was wrong. In particular, the prosecution experts concluded that
although K may have been acting in response to delusional beliefs, his actions suggested that he knew
he was acting unlawfully. On the other hand, the defence experts contended that due to his mental
state, K was unable to form a rational understanding of right and wrong. The trial judge, Garnham J,
directed the jury that it was for them to determine which evidence they believed.
Prior to his summing up, the learned trial judge heard submissions from the parties regarding the legal
direction on insanity. Counsel for K argued that the defence of insanity is available to a psychotic and
deluded defendant who is aware that his act is wrong but believes himself to be compelled to perform
it or powerless to prevent it. Naturally, this interpretation was not accepted by the prosecution, who sub-
mitted that the word “wrong” in the M’Naghten Rules simply means “wrong in law” or “contrary to law”.
The trial judge directed the jury in accordance with the specimen direction in the Crown Court
Compendium and provided a Route to Verdict. In that, the trial judge explained that in order to avail
himself of the “defence”, K must prove, on the balance of probabilities, that he ‘did not know that
what he was doing was wrong, in the sense that it was against the law.’ (at [21]).
Thomas and Ball 131

K was subsequently convicted on all three counts.

On appeal, K alleged that the learned trial judge misdirected the jury on the issue of insanity. In par-
ticular, K contended that the defence of insanity is available ‘to a psychotic defendant who is aware that
his act is “wrong” (within the meaning of the M’Naghten Rules) but whose delusion is such that he is
compelled to perform it or powerless to prevent it.’ (at [26]) Mr Campbell-Tiech QC, appearing for K,
presented two arguments: a narrow approach, and a broad approach. On a narrow reading, K was
under a “command delusion”; K believed that he was possessed by the devil and, as a result, had no
choice in how to act. By its very nature, these were not his actions, but the actions of the devil. On a
broader approach, K contended that the essence of mens rea is agency or choice; if there is no capacity
to choose, there is no culpability. The Crown’s submissions were fairly straightforward: the defence must
prove that K did not know that what he was doing was wrong; there is no formulation in the test to encom-
pass the circumstances described by K.
Held, dismissing the appeal, the trial judge’s direction to the jury was correct. The Lord Chief Justice,
Lord Burnett, providing the sole and unanimous judgment of the Court, found that the direction of the
trial judge was appropriate, leaving the issue as a matter of fact to be determined by the jury. His
Lordship was clear that the jury had all arguments before them and had the ability to find that the plea
of insanity had been made out. The jury, however, chose not to do so, preferring the evidence of the pros-
ecution; a decision that was in their right to make. (at [52])
In finding that the direction to the jury was appropriate, Lord Burnett CJ dealt with three issues. First,
his Lordship considered the meaning of “wrong” in the M’Naghten Rules. Lord Burnett CJ, relying on
both R v Windle [1952] 2 QB 826, (1952) 36 Cr App R 85, and R v Johnson [2007] EWCA Crim 1978,
[2008] Crim LR 132, concluded that “wrong” meant “contrary to law”. However, his Lordship explained
that the term “wrong” went beyond merely contrary to the law. At [41], his Lordship says:

In order to establish the defence of insanity within the M’Naghten Rules on the ground of not knowing the act
was “wrong”, the defendant must establish both that (a) he did not know that his act was unlawful (i.e. contrary
to law) and (b) he did not know that his act was “morally” wrong (also expressed as wrong “by the standards of
ordinary people”). In our judgment, “wrong” means both against the law and wrong by the standards of ordin-
ary reasonable people. (original emphasis)

The second issue was expressed as a question: Do the M’Naghten Rules themselves include an
element of “lack of choice"? His Lordship explained that “knowledge” (of wrongdoing), does not neces-
sarily import an element of “choice” on part of the defendant. A defence of “irresistible impulse” does not
exist (citing R v Kopsch (1927) 19 Cr App Rep 50, and the Law Commission’s Discussion Paper:
“Criminal Liability: Insanity and Automatism” (23 July 2013)). At [48], his Lordship concluded on
this point by saying that:

under the M’Naghten Rules, the defence of insanity is not available to a defendant who, although he knew
what he was doing was wrong, he believed that he had no choice but to commit the act in question.

Finally, his Lordship asked: Should the current law on insanity be interpreted as involving an element
of “choice"? Lord Burnett CJ began this discussion by identifying that this may not be a question for the
Court of Appeal, in light of the authorities binding the court (the same conclusion reached by Lantham LJ
in Johnson). His Lordship considered that the single appeal before them was not ‘an apt vehicle for the
reconsideration of the “wrongdoing” elements of the M’Naghten rules.’ (at [50]). Second, his Lordship
identified this area as one in which Parliament has been active, and concluded that (at [51]), changes to
this area would be ‘more properly for Parliament’.
In conclusion, Lord Burnett CJ took the view that the jury were correctly directed; the issue of whether
the defendant knew that his conduct was “wrong” was a matter for them, and they were satisfied that the
132 The Journal of Criminal Law 86(2)

defendant did know that what he was doing was wrong. As a result, the Court of Appeal dismissed the
appeal, finding the conviction to be safe (at [53]).

Commentary
Keal is an interesting case, testing the boundaries of “wrongdoing” in the M’Naghten Rules. This case
note seeks to focus on the relevance of morality to the question of wrongdoing and the importance of
Keal in clarifying its place in the test.

“Wrongdoing”: A Two-Stage Test

As identified above, at [41], Lord Burnett CJ explained that a defendant must prove, to the satisfaction of
the jury, that they (a) did not know that his act was “legally” wrong (ie contrary to law), and (b) did not
know that their act was “morally” wrong (ie wrong by the standards of ordinary people).
The importance of Keal rests on the relevance of morality to the question of wrongdoing. It is clear
from the authorities that if a defendant knows their actions to be contrary to law, they cannot avail them-
selves the defence of insanity. This is evident in the judgments in Windle, Johnson, and M’Naghten itself.
What has become somewhat of a quagmire in this area, however, is the question of moral wrongness. In
Windle, Lord Goddard CJ would explain that (at 833):

Courts of law can only distinguish between that which is in accordance with law and that which is contrary to
law … The law cannot embark on the question, and it would be an unfortunate thing if it were left to juries to
consider whether some particular act was morally right or wrong. The test must be whether it is contrary to law.

His Lordship would continue at 834:

[I]n the M’Naghten Rules ‘wrong’ means contrary to law and not ‘wrong’ according to the opinion of one man
or of a number of people on the question of whether a particular act might or might not be justified.

With a focus on illegality being a sole criterion, Windle, as approved by Johnson, appeared to extend
the circumstances in which a plea of insanity may succeed. Taken to their logical extreme, the cases may
seem to suggest that a defence of insanity is still available in circumstances where a defendant knew that
their conduct was morally wrong, but did not know that it was wrong in law.
What is particularly interesting about this area of law is the focus placed on the test applied. Windle has
been repeatedly criticised for the narrow interpretation it takes in respect of wrongdoing. For example, the
Butler Committee in ‘The Report of the Committee on Mentally Abnormal Offenders’ (Cmnd 6244,
1975), observed that (at para 18.8):

knowledge of the law is hardly an appropriate test on which to base ascription of responsibility to the mentally
disordered. It is a very narrow ground of exemption since even persons who are grossly disturbed generally
know that murder and arson are crimes.

These criticisms focus on the circumstances where a defendant knows that their actions are contrary to
law, but do not understand that they are morally wrong. This has led to the High Court of Australia in
Stapleton (1952) 86 CLR 358 to abandon Windle, and find that if a defendant believed his act to be
right, according to the ordinary standard of reasonable people, he would be entitled to be acquitted
even if he knew it to be legally wrong.
This was not the issue before the Court in Keal, however. In fact, little is said about the circumstances
where the defendant knows that their actions are morally wrong, but does not appreciate them to be
legally wrong. Admittedly, this was not an issue which fell to be determined by the court in Windle
(as justified by the Editors of Archbold: Criminal Pleading, Evidence and Practice), however, it is unfor-
tunate that the situation was judicially unclear. Whilst the two primary practitioners’ texts (Archbold and
Thomas and Ball 133

Blackstone’s Criminal Practice) suggested that the defence should fail if a defendant knew either that his
act was unlawful, or that it was morally wrong according to the standards of ordinary people, the matter
has remained untouched since the likes of M’Naghten and Codère (1917) 12 Cr App R 21.
Keal is a welcome clarification, therefore, of the relevance of morality to the question of wrongdoing.
There can be no confusion, misunderstanding, or misinterpretation that the second limb of the test
requires consideration of both the understanding of legal wrongdoing, and moral wrongdoing. The rele-
vance of this two-stage test in practice remains to be seen; Lord Burnett CJ is clear that ‘how the jury is
directed on this issue will depend on the facts and issues in the particular case.’ (at [41]) Indeed, should
evidence exist that the defendant knew their conduct to be legally wrong, the question of morality
becomes moot. This two-stage test is only of relevance if the defendant is capable of persuading the
arbiter of fact that they did not know that their conduct was contrary to law. As Lord Burnett CJ explains
in Keal, however, it will be difficult to envisage a situation where the defendant knows what they are
doing to be morally wrong but does not know what they are doing to be legally wrong. Whilst clarifica-
tion of this second stage of the test is vital, its application is likely to be rare.

Conclusion
Keal now clarifies that a defendant must surmount two hurdles, and not one, when proving that they did
not know that their actions were wrong. Proof alone that they did not know their actions were legally
wrong is insufficient; a moral test must also be applied. Furthermore, the refusal to extend the range
of wrongdoing was appropriate given the status of the authorities before the Court. It will be interesting
to see whether, as a result of Keal, the breadth of wrongdoing is challenged any further in the courts, or by
legislative intervention.

Mark Thomas and James J Ball