In Man, Mind, And Heredity, Johns Hopkins Press, London 1971, pp. 367-280

Perhaps it was in part the working of an instinctive internal direction‑finder, and not merely good fortune, which led me in the end to combine genetics with psychia­try. I believed what my teachers told me, that work along genetical lines might help one to understand these illnesses, abnormal states that showed themselves in such subtle ways that most medical men preferred to have nothing to do with them ‑ and so left them to the trick cyclist. What a challenge, then, to be sent out into a largely uncharted, a mysterious, dark and rather uncanny world, and to go provided with the lamp which the basic life sciences had lit! 

    Both self‑esteem and humility were encouraged by the double apprenticeship. One cannot really dive any deeper or climb any higher ‑ or further out along a limb than one is put in the way of doing with these two disciplines. On the one hand I was admitted, as a kind of lay brother, to the great halls of science. On the other hand I became a member of a kind of international Diners' Club, with the possibility of entry as a temporary guest to a number of professional coteries, such as law and the humanities. The psychiatrist is given permission to interest himself in a great variety of human affairs, and is sometimes even listened to, when he thinks he has something to say. This is a privilege greatly enjoyed by all. Who among us has not fallen a victim to the charms of "Psychiatry Unlimited"?

    It is probably a good thing for psychiatrists to tell the world about its awful ways; and maybe we have something useful to contribute in discussing, say, the breakdown of marriages, the range of human sexuality, the nature of the stresses that society imposes, and why people break the law. No harm is done as long as the audience takes the psychiatrist in along with other expert witnesses, and treats his information and his ideas on their merits. It is bad for both sides when, as some­times, we are regarded as speaking with authority. Results then may be disastrous (viz. the effects of psychiatric dogma on child management), until a new generation has automatically dethroned the "authorities" of the last.

The Psychiatrist and the Law

    These excursions meant a lot to me. Most of them were written under a certain amount of emotional pressure. The accumulated affect that pushed out the essay on the McNaughton Rules (p. 331), was built up during the sessions of the Royal Commission on Capital Punishment, which sat from 1949 to 1953. It was a revela­tion to see the ways in which the minds of lawyers worked. The witness who made the deepest impression on me was the Lord Chief justice of the day, who was built like a heavy‑weight boxer, and radiated dominance and "strength of personality."

    After our Chairman, Sir Ernest Gowers [1] had had his go at putting questions to the succession of witnesses who appeared before us (and a very notable group of public figures they were, not only in England and Scotland, but also in the U.S.A. and in Scandinavia, Belgium, and the Netherlands), it was "Buggins's turn" for the individual members of the Commission. So it was that, on the 5th January 1950,1 found myself in a position, perhaps unique for living psychiatrists, to submit the Lord Chief justice of my country to cross‑examination, like the canary that ate the cat. The animal proved indigestible.

    On the subject of the McNaughton Rules, it seemed that the L.C.J. had no difficulty in combining the opinions (a) that these Rules were satisfactory and did not need modification, (b) that juries would at times go further than the directions of the trial judge allowed, and expand the Rules to cover cases in which their sympathies were aroused, and (c) that it was quite proper for juries to do this. This is what we call English pragmatism and common sense, and it has got us where we are today.

Stranger still was the attitude exposed in the following exchange:

Q. Take the interesting ease of Ley, whom you mentioned. You had no doubt he was insane?

L.C.J. No, I thought he was insane from the way he gave his evidence, that there was sone­thing wrong with him, because he did not even attempt to set up a defence, or his defence was: "I did not do it, every word that is said in this case is a lie." "Of course," you said, "this man cannot be normal because at any rate he would try to set up some defence, if he was." But that he knew what he had done, that he knew it was wicked, that he intended to destroy that boy and would have destroyed another man if he had been able to get hold of him, there was no doubt.

Q. And he would hardly be covered by the McNaughton Rules?

L.C.J. He was not covered by the McNaughton Rules, at least, I thought he was not, because he knew what he was doing, and he knew that what he was doing was wicked and wrong. Of course, he did not set up a defence of insanity. He was reprieved on the ground that he was a paranoiac, and he died within six weeks.




Q. To revert to the case of Ley, I suppose you would not have wished that man to hang? You would not think it proper that he should hang?

L.C.J. I should have thought it was very proper that he should have been hanged.

Q. Even though he was insane, and presumably, from the ecclesiastical point of view, not is a fit state to make his peace with God?

L.C.J. He could make his peace with God, I think, quite well. I do not know what his religion was, but the only reason he committed the murder was because he mistakenly believed that the man had committed adultery with his mistress. What excuse did he have? Supposing it was true that the boy had committed adultery with his mistress, it was no excuse for kidnapping him, and then brutally murdering him in the basement of a house in South Kensington.

Q. I think the medical point of view would be that the disease had altered his personality so as to make such wickedness possible.

L.C.J. If that is the medical point of view, I am afraid, frankly, that it does not appeal to me at all. If that was the case, I think it is one of the reasons why he should be put out of the way.

The effect of these answers on me was stunning; I could hardly believe I had heard aright. [2] At lunch, after the morning hearing, the eminent judge entertained us with stories both comic and grim. With his immense vitality and gusto he dominated our table, and we put up no resistance but gave him his head. For me, he loomed enormous across the white cloth, a shape of darkness, from whose penetrating eyes shone a ferocious energy and a powerful (and malign) intelligence. I looked at him like a being from another world, as indeed he was ‑ a world in which psychiatric insights are unheard of, or if heard of are not attended to, or if attended to are not understood, or if understood are discounted as irrelevant, or mistaken, or mis­chievous, or valueless.[3]

    I wonder whether lawyers understand either the nature of the information which the psychiatrist can obtain for them, or how it should be applied. They seem to believe that the world of psychiatry, like the world of law, is a human artefact. But what the psychiatrist can find out and can report about the past history, the mental make‑up, and the motivations of an accused man is evidence about a real world in which events occur. The real world has primacy and, in the last resort, legal concepts and legal fictions must conform to it. One gets the impression of but little desire to understand this real world. Psychiatric evidence, and indeed evidence of all kinds, has to be stretched and strained to fit the legal concepts, which are jealously pre­served. For the legal mind it is more important for the game to be played according to the rules, than for sensible decisions to be made.

    I was once invited to give an open lecture in the University of Oxford; and when it was over, I was taken by my host to dine with the dons at the high table at Magdaien College. After a dinner, excellent at a number of levels of experience, which continued for some time after the undergraduates had left the body of the hail, a select party of us were conducted in the light of a summer evening through the courts to a Combination Room looking over the deer‑park. We seated ourselves round the table on which there were bowls of dessert, carafes of wine, and costly silver, porcelain and crystal. Two of our number were formally dressed for the evening; and it appeared that one of them was some kind of an appendage and the other was the Assize judge on circuit. This urbane gentleman was graciously pleased to learn that I was a psychiatrist, and informed me that he had had a psychiatrist before him that very day. The man had been called to give evidence in a case of homicide, and had been able to persuade him, the judge, that the case was one of diminished responsibility, and the accused was a psychopath. In consequence the judge had felt able to sentence the accused to a considerably shorter number of years of imprisonment, for manslaughter, than would otherwise have been possible.    Provoked by the benign smile, and the confident expectation of good opinion which such clemency deserved, I felt it incumbent on me to tell his Honour that he had got it all wrong. A man whose responsibility for his acts was impaired was a greater danger to the community than a man whose responsibility was intact; and the appropriate measure would be to remove him from society for a longer rather than a shorter term.

    The result was not altogether happy. In England the Assize judge travels from county town to county town as a representative of the sovereign. He is met on arrival by the civic authorities and conducted in state to the judge's Lodgings, where he is installed with his own staff of domestics which he has brought along with him. He is isolated from the world in which he moves as a superior being, and he is accustomed to having his obiter dicta treated with little if any less respect than his judicial pronouncements. It was unfitting on my part to treat him ‑ as I saw him ‑ as just another professional man. One does well, in England, when addressing a functionary, or any important or self‑important personage, to give him the degree of deference which one can see he expects. When I was young I used to rebel against this. Now I am wiser, and Konrad Lorenz has convinced me that the social hierarchy fulfils a vital function, and works most satisfactorily for all when the established ritual gestures are punctiliously performed.

[1] A son of the renowned neurologist William Cowers, and himself a very distinguished ex‑civil servant, the Chairman of several important Royal Commissions.

[2] Such opinions, so uncompromisingly expressed, caused the Lord Chief Justice a good deal of embarrassment later, when they were exploited by both journalists and counsel. See Abel‑Smith and Stevens (1968), p. 182, footnote.

[3] It is not unknown for judges publicly to question the honesty of psychiatric witnesses, men of high standing and irreproachable character, who have done no worse than give evidence that displeased them. To quote again from Abel‑Smith and Stevens (1968), p. 184, footnote: "Lord Justice Harman said of a psychiatrist acting as an expert witness: 'A doctor is a paid advocate who speaks for the person who pays the fee'." If it is true that psychiatrists and other medical men prostitute themselves, then it follows that officers of justice are procurers and courts are brothels.