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Anders Breivik: the fine line between bad and mad



27 August 2012

Dr Arlie Loughnan comments on one of the most high profile court decisions on "madness" and crime.

In a unanimous decision, the Oslo District Court in Norway has convicted Anders Behring Breivik of the murder of 77 people in the streets of central Oslo and on the island of Utoya in July 2011.

Breivik's conviction was based on a finding that he was sane at the time of the killings. In a strange twist, the court's verdict is a victory for the defence; they had been instructed by their client Breivik to argue that he was sane. The prosecution had argued that Breivik was insane.

The finding that Breivik was sane and the conviction means that he can be punished and he has been sentenced to 21 years in prison. It is possible that Breivik will be detained beyond that period, under a regime of preventative detention. This means Breivik may never be released. The seriousness of Breivik's offences and the enormous harm they have caused seems to indicate that Breivik's conviction and sentence will be well-received in Norway.

The issue in Breivik's trial was whether he was criminally responsible for the killings. If he was insane at the time of killings, he was not criminally responsible. Criminal responsibility concerns the capacities of the accused. If an accused lacks the necessary capacities, he or she cannot be called to account for his or her actions in the context of a criminal trial.

The question of criminal responsibility goes beyond the issue of liability for an offence: it addresses the issue of whether the accused is someone to whom the criminal law speaks. Criminal responsibility lies at the heart of our criminal justice system.

The Breivik trial brings the complex issues surrounding criminal responsibility into sharp relief. It prompts us to where the line between "madness" and "badness" lies and to think about how to respond to offenders whose criminal responsibility is at issue.

View the entire article - Anders Breivik is guilty: the fine line between bad and mad - The Converation

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