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Mad or bad? Expert witnesses and the Anders Breivik trial

On July 22, 2011, Norwegian Anders Breivik killed 75 people, as a statement against Norway’s liberal immigration policies. He was a member of an extreme right wing group and a product of a dysfunctional…

Two teams of psychiatric assessors have come to different conclusions about Breivik’s mental state. AAP

On July 22, 2011, Norwegian Anders Breivik killed 75 people, as a statement against Norway’s liberal immigration policies. He was a member of an extreme right wing group and a product of a dysfunctional childhood. But was he rational and deliberate, or just mad?

That’s the question the court will have to answer at the end of Breivik’s ten-week trial, which begins today.

Competing views

In January 2012, two court-appointed psychiatric experts conducted extensive assessments of Breivik’s mental state. After 36 hours of interviews they handed down a 234-page report that concluded Breivik suffered from a paranoid schizophrenic disorder and was acting on his delusional beliefs.

AAP

But following appeals from lawyers representing the interests of victims, the court sought the opinion of two further mental health experts. Contrary to the past assessment, the second set of experts determined that Breivik was not psychotic, or severely mentally handicapped at the time of assessment, nor at the time of the offending.

All the experts agreed that Breivik was an extremely high recidivism risk.

So how would a crime such as this be treated in Australia? And how does the role of the expert witness differ between Australia and Norway?

An expert witness is recognised by the court as a person who can give an opinion in a specific area of knowledge that is outside the understanding of an “average person”. Psychiatry and psychology expert witnesses must have relevant qualifications, training and experience to be recognised by the court as having such expertise.

Within Australia’s adversarial legal system, the defence and the prosecution will usually engage their own experts, even though the expert should not be an advocate for either party (defence or prosecution).

Usually, the expert will conduct an independent assessment and provide a report outlining the basis for his or her opinion. The report should state the facts or assumptions on which the opinion is based, and should not omit or fail to consider material facts which may contradict the opinion.

The expert should also make it clear when a particular question or issue falls outside his or her area of expertise. If the expert also considers there is insufficient data available, this must be stated to indicate that the opinion is no more than provisional.

In Norway, similar principles apply to being an expert witness, except that under their inquisitorial legal system, the court appoints the expert. (In an “inquisitorial” system, the court is actively involved in investigating the facts of the case, whereas in an “adversarial” system, the court acts an impartial umpire between the prosecution and the defence.)

In Australia, the most controversial area of “expert evidence” relates to opinions given in the context of the “insanity defence”. The law determines that a person with a mental impairment may be found “not guilty” of an offence if, at the time of the alleged offence, the person was suffering from a mental impairment, and, as a consequence either:

a) did not know the nature and quality of the conduct; or
b) did not know the conduct was wrong; or
c) were unable to control the conduct.

Although the person may be found “not guilty”, they won’t be released into the community. Instead they’ll be detained within a mental health institution (rather than a prison) for an indeterminate period of time, which cannot exceed the term of imprisonment had the defendant been found “guilty”.

The judicial system of Norway, however, has no provisions for an insanity defence. Instead, the court can sentence “mentally ill” defendants to involuntary commitment.

Involuntary or civil commitment is a legal process whereby an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital or in the community as an outpatient. How long they remain in treatment depends on their response to treatment and their perceived risk to the community or themselves.

In Australia, similar state-based legislation applies to cases where the person is considered a danger to society or themselves because of their mental illness. These people can be detained for treatment and released when they’re no longer considered a risk.

Candles and flowers opposite Utoya Island, where Breivik killed 56 people. AAP

Penalties

Capital punishment was abolished in Australia in 1984 and hasn’t been used in Norway since 1905. The maximum penalty for murder or acts of terrorism in Australia is “life imprisonment”, whereas in Norway the maximum is 21 years of imprisonment.

The Norwegian correctional system places greater emphasis on the rehabilitation of offenders, and their re-conviction rate is around 20%.

In Australia, where comparatively less emphasis is placed on rehabilitation and more emphasis given to punishment, the re-conviction rate is around 40% .

The Norwegian court now has to determine how it will deal with its most notorious offender, Anders Breivik, in the light of the differing expert opinions it has received. If he is judged to be a mental-health patient, he will be treated and released when his mental health improves and he’s not considered a risk to himself or others. This would be an indeterminate sentence.

Alternatively, he will be convicted for “acts of terrorism” and given a mandatory 21 year sentence (to be released when he is aged 53). He would be offered access to rehabilitation aimed at reducing his risk of re-offending.

The victims' families legal challenge, which raised a different “expert” opinion, was likely motivated by a desire to see Breivik punished and convicted as “sane”, so that he will receive the mandatory 21-year sentence. A “mental illness” conclusion could see him released much sooner, if his treatment needs are met and he’s no longer considered a risk.

So, will Breivik be judged mad or bad? And how will that affect his sentence? The world will be watching closely over the next 10 weeks to see how the Norwegian legal system handles its most public criminal case.