What is the “abnormality of mind” exemption?
In the last four months, 4 individuals on death row have been scheduled for execution. Their executions are currently stayed pending the outcome of recent court applications. Each of these individuals had applied to be resentenced to life imprisonment under the ‘abnormality of mind’ exception provided in s33(B)3 of the Misuse of Drugs Act (MDA), instead of being subject to the death penalty.
This “abnormality of mind” exception was introduced in 2012. Here, we explore this exception and its impact for people on death row with intellectual and/or psychosocial disabilities.
Since its introduction, out of 22 individuals who were couriers (which is a condition for the ‘abnormality of mind’ exception to apply), and whose death sentences were not commuted by other means, 8 individuals were sentenced or resentenced under the “abnormality of mind” exception. In all other cases, the Courts upheld the sentence of death.
The Three-Part Test in Nagaenthran (2019)
In order to qualify for resentencing, the accused must prove on the balance of probabilities, that:
(a) first, that they were suffering from an abnormality of mind (“the first limb”);
(b) second, that the abnormality of mind: (i) arose from a condition of arrested or retarded development of mind; (ii) arose from any inherent causes; or (iii) was induced by disease or injury (“the second limb”); and
(c) the abnormality of mind substantially impaired their mental responsibility for their acts and omissions in relation to their offence (“the third limb”).
In addition, the accused must also be found to be a courier.
The First Part
In defining an ‘abnormality of mind’, the courts have adopted the framework first used in the 1960 English case of R v Byrne: “the question of abnormality is analysed in respect of one of three aspects of the mind’s activity – the capacity to understand events, to judge the rightness or wrongness of one’s actions, and to exercise self-control.”
In Nagaenthran, the Court of Appeal clarified that these aspects are not exhaustive of all the mind’s activities on the question of abnormality of mind. The court also highlighted that whether there is an abnormality of mind is ultimately a legal question, not merely a medical inquiry.
The Second Part
An inquiry into this component usually takes the form of expert evidence from psychiatrists as to whether the applicant has a recognised medical condition – such as persistent depressive disorder, or attention deficit hyperactivity disorder. The judge would have to assess (often contrasting) psychiatric reports on the applicant’s mental condition.
The requirement that the “abnormality of mind” must arise from an inherent and/or permanent cause, excludes certain conditions from being in themselves sufficient to give rise to an abnormality of mind – such as substance use disorder. It is common to see a combination of the substance use disorders and other mental conditions in the cases.
The Third Part
Finally, the applicant needs to show the court that the “abnormality of mind” must have substantially impaired mental responsibility for the acts in question. This, according to the Court, “is largely a question of commonsense” for the judge to decide.
Academics have pointed out that judicial elaboration of this component is not detailed, and ultimately, a question of moral judgement. As concisely put in Tan, Morgan and Cheong, “the definition of abnormality must ensure mercy for the ‘harassed and incapable’ and withhold it from the ‘callous and wicked’”.
Notably, the Court stated that the third component is often resolved by reference to statements and accounts of the applicant, if the accounts provided were conflicting, on whether they had weighed the risks of the illegal activity, or had the “makings of a criminal mind”.
Further, despite being a matter for the judge, we commonly see expert witnesses weigh in on the issue of mental responsibility, of which excessive reliance on by the judge could be potentially problematic.
Issues with the abnormality of mind exception
The use of forensic psychiatric evidence in the 2nd and sometimes the 3rd part raises concerns that medical opinion might be contaminated by the adversarial legal process. A 2018 report by the Death Penalty Project highlights:
“For example, where, in ‘diminished responsibility’ [which is a exemption to murder], the onus for raising the exemption is on the exemption – such that it produces a report that the prosecution may then seek to rebut – there is a risk that the prosecution expert will distort independent clinical practice; that is, interview the defendant, and consider the medical and legal papers, in terms of the question ‘Does the exemption report stack up?’” (142)
“And, where the doctor is employed by the state, the pressure placed upon him can be substantial – even if unintentionally by the state and generated solely from the expert’s awareness of his contract of employment…Most obviously, in a jurisdiction where the death penalty is politically popular, it is likely to be more difficult for an expert to hold the line of ‘minimally biased’ courtroom practice in capital trials.” (144)
For a number of people on death row, resentencing applications were often made years after the original arrest and investigation. Evidentiary gaps related to the applicant’s mental state during the commission of the offence might be difficult to remedy through further psychiatric reports during the resentencing application – such reports rely on testimonies that are gathered years later.
The Court of Appeal has recognised this as an issue, and in Roszaidi bin Osman (2020), directed that in future cases all parties must consider the applicability of the ‘abnormality of mind’ exemption at the trial stage, and adduce the necessary evidence.
In a number of other jurisdictions, the law on “abnormality of mind” has been reformed, with significant changes to the second and third components of the test, on the grounds that the old test, similar to the version that is currently used in Singapore, lacks clarity. The need to find or specify permissible and accepted mental disorders as the cause of an “abnormality of mind” is also a very narrow view, with a broader view of the term being preferred in other jurisdictions.
Psychiatrist associations in other jurisdictions have also expressed discomfort in being asked to comment on the fundamentally non-medical issue of substantial impairment of mental responsibility.
Risk of conflation with the courier requirement
In Rosman bin Abdullah (2016), the Court of Appeal describes the courier requirement as a “threshold issue”. An application would already fail if the accused was found to not be a courier, as defined in the MDA.
But while the ‘courier’ and the ‘abnormality of mind’ requirements are framed as independent and distinct, the case law suggests that anyone whose activities are not deemed as that of a courier (which itself is defined narrowly in the MDA), would likely not be seen as having substantially impaired mental responsibility. Thus, those who would otherwise come under the “abnormality of mind” exception in the MDA but are not deemed to be a “courier”, will still face the death penalty.
Is this statutory exception in line with international law?
Ultimately, international law requires that no one with intellectual and/or psychosocial disabilities be subject to the death penalty. (The United Nations’ Committee on the Rights of Persons with Disabilities, and) international guidelines highlight the right of persons with disabilities to procedural accommodations, which were absent at the point of arrest and investigation for a number of current death row inmates, and continue to be lacking especially in court processes.
The courts have defined the ‘abnormality of mind’ exception narrowly. ‘Persons with disabilities’ are defined much more broadly under international law, particularly under the Convention of the Rights of Persons with Disabilities, to which Singapore is a party.