The aim of the project:

Until 1965, the Swedish penal law demanded accountability (imputability) for criminal responsibility. With the introduction of the Criminal Code, accountability is no longer a condition for criminal responsibility. From then on, anyone who knowingly, or in certain cases negligently, commits a criminal act is held legally responsible - provided no presumption for non-liability is present, for example self-defence. However, there are certain conditions stipulated for being sentenced to imprisonment. From 1965 to 1992, one such condition was that the crime was not committed under the influence of mental disease, mental deficiency or other mental abnormality that must be considered to be equivalent to mental disease. In 1992, this was changed to that the act should not be caused by a severe mental disorder. Now in force is a regulation from 2008, in accordance with which a person who has committed a crime caused by a severe mental disorder shall primarily be sentenced to another sanction than imprisonment. Imprisonment may be imposed only if there are exceptional reasons. However, there is a prohibition against imprisonment if the defendant as a consequence of the severe mental disorder has been incapable to understand the meaning of the act or to adjust his acting in accordance with such an understanding, provided that the severe mental disorder is not self-inflicted.

Stated above is the background to the project. There are three parts to the project and these have not been changed during its progress. The three parts are: a descriptive, an analytical and a normative part.

The descriptive part consists of a comparison of the accountability criteria proposed in Swedish government official reports, specifically SOU 2002:3 and SOU 2012:17, together with those of other criminal justice systems. Amongst the best known are the M'Naghten rules, the ALI test and the Durham test.

The analytical part of the project is to determine the contents of some other concepts, which are interrelated with that of accountability in its different variants. Amongst related concepts, are those of free will, responsibility and guilt, including insight, control of action and self-infliction. The latter concepts are also related to concepts such as intent and negligence. In the system in force at the moment, a key term is "severe mental disorder". How it relates to the concept of accountability is also an important question to investigate.

The normative part of the project is to propose how an accountability criteria, alternatively for allowing imprisonment, should be designed.

The three most important results of the project:

One of the results of the investigation is that the concept of severe mental disorder should be discarded from the Swedish criminal law. The main problems of the concept are its dual role of being a medical as well as a legal concept, and the lack of an explicit definition. The intention of the lawmaker is that the concept is to be common to criminal law and compulsory psychiatric care. The determination of the concept, as a penal law concept, must, however, start out from purposes that are different from those of it as a concept of compulsory psychiatric care. This is evident from, inter alia, the fact that mental disorders considered to be severe mental disorders within one of the legal spheres are not considered to be severe mental disorders within the context of the other, and vice versa.

Yet another result of the investigation is that the concept of accountability is not uniformly determined. The determinations of it differ between different jurisdictions and over time. The consequences of this is something to carefully consider when international cooperation regarding criminal law is discussed, endorsed, initiated and implemented (see also point New research questions).

A third result of the investigation is the finding that the official rejection of accountability from Swedish criminal law, and thus of an ideology based on the idea of just retribution, did not result in a value-neutral rationality taking its place. Most advocates of the reforms in the direction of discarding accountability were guided by an explicit or implicit teleological outlook in ethics, thus so the crucial impact of these fundamental values needs to be better known in the contemporary debate.

New research questions generated by the project:

Sweden has ratified the Rome Statute of the International Criminal Court. Sweden, with the law (2014: 406), can be said to have it incorporated it into Swedish criminal law. The Rome Statute stipulates accountability as a condition for criminal responsibility, but the Swedish criminal law does not do so. A number of other states that have ratified the Rome Statute require accountabilty as a condition for criminal liability, but their determinations of accountability are not in all cases the same as that of the Rome Statute. The various problems that this could cause would be interesting to investigate further.

Two official government committees have proposed the use of special protective measures with regard to, among others, offenders lacking accountability; this within the framework of accountability reinstated as a condition for criminal responsibility. The law (1927: 107) stipulated a regulation regarding partial unaccountable offenders. It would be interesting to examine what lessons can be learnt from that statute, and to what extent the lessons have be taken into account in the proposals presented by the two committees.

The legal institute of special discharge from forensic psychiatric care has been in force since 1992. This institute generates a series of fundamentally important issues. An investigation of to what extent Swedish psychiatrists consider themselves involved in psychiatric practice, violating the Hawaii Declaration, is important and would also be interesting from a scientific point of view.

The international support of the project:

During the project I have participated in two international conferences. One of these was the 16th World Congress of Psychiatry, Madrid, Spain, in 2014, where a poster was presented. The poster presents and summarizes the second of the articles mentioned in the Work in Progress.

The second conference was the 14th International Conference on Philosophy and Psychiatry, Gothenburg, Sweden, 2011. The chief organizers of the conference were prof. Helge Malmgren, prof. Ingemar Engström and myself. At the conference I gave an oral presentation (see publication list).

These two conferences have provided me with valuable international contacts in the scientific community.

Research informative contributions to the public community:

During the project I have presented two public lectures. I have also published an article in a journal for the perusal of the educated public.

The two most important publications of the project:

The first article (Svennerlind, submitted) is intended for an international public of psychiatrists, philosophers and legal scholars. The article details the changes over time - over 100 years - of the Swedish system for the handling of mentally disordered offenders. The article also discusses the concept of severe mental disorder. I show how the concept de facto has been interpreted using concepts concerning accountability. I also describe the difficulties that this interpretation has caused. My hope is that the reader, who can be expected to be unfamiliar with Swedish criminal law, is given an adequate overview of the, in international comparison rather unique Swedish system, its theoretical background and (to some extent) the practical outcome of the historical experiment it constitutes. Furthermore, I present arguments for abolishing the medico-legal concept of severe mental disorder, and suggest how this can be done without a return to accountability of the traditional kind. I.e., the article addresses the three main objectives of the project.

The second article (Svennerlind 2014) is addressed to researchers in other disciplines as well as to an educated public. It presents an overview of the Swedish penal law regulation, during the time of the Penal Code as well as during the time of the Criminal Code, of crimes committed by mentally disordered offenders. The article then focuses on the so-called Flink case, and discusses some of the problems that the court was faced with when it had to apply Ch. 30 § 6 of the Criminal Code. The article also highlights the similarities between the Flink case and one of the example cases used in the before mentioned official government reports to illustrate the accountability condition proposed. It is hoped that the reader of this article shall understand the (and in what way) some of the problems which the Court had to deal with in the Flink case were closely related to the vague notion of severe mental disorder, and that the reader will recognize some of the difficulties in formulating an accountability condition.

The publication strategy of the project:

The publications the project have generated so far are available with open access to everyone interested. The publication list includes links to the texts. Also the publications that the project will generate henceforth will be available with open access.

As the proposed monograph build on the scientific articles and presentations resulting from the project, I have prioritized the work of the latter. The monograph exists now as a detailed outline, where the thought threads to be treated, are briefly described; in most cases with references to relevant places in my other writings.

Publications

Svennerlind, C. (submitted), From being unaccountable to suffering from severe mental disorder and (possibly) back once again to being unaccountable. Submitted to Dialogues in Philosophy, Mental and Neuro Sciences.

Svennerlind, C. (2014): ”Allvarlig psykisk störning, tillräknelighet och Flinkfallet”, Arche – Tidskrift för psykoanalys, humaniora och arkitektur, Nr. 48-49 (augusti), 146–157. http://www.freudianska.org/tidskrift/48_49/Svennerlind-Arche-2014-4849.pdf

Svennerlind, C. & Malmgren, H. (2014), Accountability and social responsibility. Poster presentation at the 16th World Congress of Psychiatry, Madrid, Spain, August 14-18 2014. http://www.postersessiononline.eu/pr/aula_poster.asp?congreso=277111232

Svennerlind, C. (2014): “The Swedish Penal Law on Accountability and Severe Mental Disorder”, M. Kaså (ed.), Idées Fixes: A Festschrift Dedicated to Christian Bennet on the Occasion of His 607h Birthday, Gothenburg: Department of Philosophy, Linguistics and Theory of Science, Philosophical Communications, Web Series 61,101–116.
http://flov.gu.se/digitalAssets/1497/1497175_ideesfixes.pdf

Svennerlind, C. (2013): “God, Obligation, Right, and Utility”, F. Radovic & S. Radovic (eds.), Modus Tolland: en festskrift med anledning av Anders Tollands 60-årsdag, Göteborg: Philosophical Communications, Web Series 59, 57–72.
http://www.flov.gu.se/digitalAssets/1452/1452479_modus-tolland.-en-festskrift.pdf

Svennerlind, C. (2011), The Swedish Penal Law System on Criminal Intent in Relation to Severe Mental Disorder and Unaccountability. Oral presentation at the14th International Conference for Philosophy and Psychiatry, Gothenburg, Sweden. http://flov.gu.se/digitalAssets/1507/1507531_eee_abstracts2_v2.pdf

Public lectures:

Svennerlind, C. (2011), Svensk straffrätt om tillräknelighet och allvarlig störning, Kollegium SSKKII, Göteborgs Universitet.

Svennerlind, C. (2011), Begreppen tillräknelighet och allvarlig psykisk störning i svensk straffrätt, provföreläsning, Mittuniversitetet.

Non-public lectures:

Svennerlind, C. (2013), Tillräknelighet i svensk och annan straffrätt, Invited speech at the conference Olika bilder av mördaren 1910-2010. Göteborgs Universitet.

Svennerlind, C. (2011), Psykisk störning och svensk straffrätt, Special training education for physicians, Vänersborg.

Works in progress:

Höglund, P., Svennerlind, C. et al (2015), License to speak? First persons experiences of accountability. Near-finished manuscript, to be submitted shortly.

Svennerlind, C. & Malmgren, H., Ethics, will and punishment. The philosophical background to the Swedish way of handling mentally disturbed criminal offenders. Paper sequel to the Madrid poster, appr. 1/3 of the text written.

Svennerlind, C. Tillräknelighet i svensk straffrätt. Planned book, a detailed plan exists.