The Insanity Defence in French Law: Are Prisons the ‘New Asylums’?

In 2016, the Human Rights Watch report on French prisons concluded that the mentally ill offenders suffer ‘a double punishment’, as they are likely to be sentenced to prison for longer and with inadequate care. One identified factor was Article 122-1 of the Criminal Code (CP), which defines the French ‘insanity’ defence. Using a historical perspective and contemporary medico-legal writings, this chapter demonstrates that the 1992 re-codification of the French law defence of mental disorder in Article 122-1 CP has exposed and accentuated perennial fault lines in the articulation of the defence’s important features: the definition of the disorder to trigger the defence; the understanding of the impact the disorder should have for the defence to be accepted; and the modulation of the outcome of the defence in light of prior fault. Determining the boundaries between responsibility, irresponsibility and attenuated responsibility has never been as straightforward, as often claimed. The fraught and tense debates which have surrounded the case of Halimi decided in April 2021 by the French Supreme Court, confirm the need for clarification and reform. This evolution of the French law defence in turn sheds light on English criminal law’s own approach to the insanity defence and its satellites: automatism, diminished responsibility and intoxication.