Michael McDowell (Dublin South East, Progressive Democrats)

I move: "That the Bill be now read a Second Time."

I am pleased to open the Second Stage debate on the Criminal Law (Insanity) Bill 2002. The Bill was presented in the Seanad on 10 December 2002, considered in committee on 7 and 8 April 2004 and passed by that House on 19 April 2005 following detailed discussion on its provisions. Significant amendments were made to the Bill in the Seanad and I will deal with those changes later.

This is an important Bill in many respects because it deals principally with that area of the criminal law which is concerned with rules governing the criminal responsibility of mentally ill persons who may have committed criminal offences. It has been suggested that the defence of insanity raises the social protection role of the criminal law. The issue to be determined in these cases is the insanity of the accused person at the time the offence was committed. If accused persons are found to have been insane at that particular time, they will be subject to a special regime of detention, until such time as they no longer pose a danger to themselves or to society. Currently, this means the accused will be held in the Central Mental Hospital. This illustrates the first burden on the State in these cases. However, the State also has to balance this duty of protection with its responsibility to preserve and protect the rights of the accused person who has committed no crime in law. These are just two of the fundamental social and moral implications that arise in this area.

There is a third consideration which goes right to the heart of any debate on insanity and the criminal law. This is the moral distinction that must be drawn between those who are "bad" and those who do not have the mental capacity to commit crimes. This is where an important issue of policy comes into question and it is something that is at the centre of this Bill. This point has been expressed by two noted legal commentators, Finbar McAuley and Paul McCutcheon, in their work entitled, Criminal Responsibility. They state:

Legal and medical evaluations of the conditions that might properly attract the label of "insanity" can differ profoundly. The law regards several conditions, such as epilepsy and hypoglycaemia, that medical professionals do not classify as mental disorders, as a basis for the insanity defence. This highlights the different perspectives of the relevant disciplines and it should be realised that the defence raises a legal question of responsibility, not an issue of medical diagnosis and classification. Nevertheless, it is invariably the case that medical evidence is adduced at trial and, it can be assumed, is taken into account in the determination of the defendant's sanity. Thus, while a degree of congruence between the medical and legal evaluations can be expected, the ultimate resolution of the issue is one of law, not medicine.

This is a fundamental point and it illustrates why the Bill adopts two different definitions of"mental disorder", one for the purposes of the criminal law and the other for the purposes of dealing with the accused person following the court's arrival at a verdict of not guilty by reason of insanity or unfitness to be tried on the basis of the definition in the Mental Health Act 2001. As such, the defence of insanity raises complex issues involving the overlapping disciplines of law and medicine. In this jurisdiction, those rules are founded mostly in judicial decisions going back to the 19th century, with additional jurisprudential layers added in the meantime.

It is not surprising therefore that many calls have been made for clarity and legislative reform by judges, legal practitioners, legal commentators, academics and the medical profession, particularly those practising in the field of psychiatry. However, while the legal and medical definitions which apply here are not co-extensive, the approach adopted in the Bill takes into account the overlap between the criminal justice elements, and the need to have regard to the treatment aspects of mental health legislation. This arises particularly at the stage where a court, having arrived at a verdict of "unfitness to be tried" or "not guilty by reason of insanity", is considering the options available to it in a case. Incidentally, both terms will replace the existing verdicts of "unfitness to plead" and "guilty but insane".

The defence of insanity is, in fact, an acquittal but it is important to note that the plea is unique amongst the defences available to a person on a criminal charge in two important respects. First, the accused person bears the burden of establishing the defence. Second, even though a person is acquitted by reason of insanity, he or she nevertheless loses their liberty because up to now, they will invariably have been detained in the Central Mental Hospital. This will change when the Bill becomes law as it provides for detention in designated centres other than that institution. As the two commentators I have mentioned state: "The defence marks a crucial boundary between those whom the law considers responsible, and therefore answerable for their conduct, and those who are not responsible but require treatment."

I will now deal with the provisions of the Bill. To appreciate fully the importance of and need for this legislation, it should be noted that most of our legislative provisions dealing with criminal insanity date back to the 19th century, some to the early 1800s. The main purpose for introducing this legislation is to clarify, modernise and reform the law on criminal insanity and fitness to be tried and to bring it into line with the jurisprudence of the European Convention on Human Rights. The Bill, as introduced, contains extensive new provisions dealing with fitness to be tried and new rules relating to appeals against such findings; a statutory definition and restatement of the test of criminal insanity as it is understood in common law; a new verdict of "not guilty by reason of insanity" and a new plea of "guilty but with diminished responsibility" in cases of murder; and the establishment of a new review body — the Mental Health (Criminal Law) Review Board.

The Bill implements the main recommendations of the third report of the interdepartmental committee on mentally ill and maladjusted persons, the Henchy committee, which was published in 1978. Given that it is now 2005, it has taken some time to develop the proposals in that report and convert them into law. Deputies will be aware that a Bill was appended to the back of that report and might wonder why it was not enough to produce an earlier result. Some explanation for the delay can be attributed to the fact that priority was given by successive Governments to making fundamental changes in the civil law relating to mental illness as ultimately expressed in the Mental Health Act 2001.

A person's state of mind in criminal law proceedings is relevant in two ways. First, the person must be mentally fit to plead to the charge. If it is shown that the person, because of insanity, is unable at the time of the trial to understand the charge against him or her, the difference between guilty and not guilty or is unable to instruct counsel or to challenge jurors, the trial cannot proceed, essentially because its fairness cannot be guaranteed due to the person's condition. The test at common law to be followed in such instances was laid down by the Supreme Court in the State in Coughlan v. Minister for Justice in 1968. This test is not limited to any particular definition of insanity. It simply assesses the person's ability to comprehend what is going on at the time of the proceedings. If the person is found to be unfit to plead, section 17 of the Lunacy (Ireland) Act 1821 provides that he or she should be detained in strict custody until the pleasure of the Government be known.

Second, where the person is found fit to plead, the trial will proceed but the person may raise the defence of insanity. The law will presume that the person is legally sane and, if over the age of 14, is fully accountable for his or her actions. However, if the person is able to show, on a balance of probabilities as opposed to beyond reasonable doubt, that at the time the offence was committed, he or she was legally insane, he or she will have a defence to the charge. In these circumstances, the person will be deemed to have lacked the necessary mens rea or mental capacity to commit the crime as charged and will not, therefore, be held accountable. The test applied here is based on the M'Naghten Rules, which were originally laid down in 1843, and subsequent case law. At present, the law requires that it must be shown that a person must have suffered, at the time of his or her act, from a defect of reason due to disease of the mind so that he or she did not know what he or she was doing, or did not know that it was wrong.

I will now provide Deputies with an overview of the provisions of the Bill.Section 1 deals with definitions and two matters are particularly worthy of special mention. The first concerns the definition of designated centre which is further explained in section 2. This section follows section 5 in the draft Bill proposed by the Henchy committee and it provides that it is a matter for the Minister for Health and Children in consultation with the Mental Health Commission, or the Minister for Justice, Equality and Law Reform in the case of the designation of a prison as such a centre, to decide where is the most appropriate place for the treatment of persons committed to detention under the Bill. The designation of a prison as a designated centre, which was not recommended by the Henchy committee, is included to cater for rare and exceptional situations where it might be considered appropriate in all the circumstances to detain a person in a prison rather in a psychiatric hospital.

Section 2 was amended in a number of respects in the Seanad. First, it now provides that the Central Mental Hospital is a designated centre for the receiving, detaining and providing care or treatment to persons under the Bill. Second, it now covers inpatient facilities which are not necessarily hospitals. Third, the section now requires the Minister for Health and Children when designating a centre other than a prison to consult the Mental Health Commission. Senator Henry in the Seanad suggested that that Minister should consult the Inspector of Mental Health Services but, following consultation with the Minister for Health and Children, we opted instead for the commission as the most appropriate body in these cases.

The second issue arising from section 1 concerns the definition of the term "mental disorder" which is defined for the purpose of findings of "unfitness to be tried" in section 3, "not guilty by reason of insanity" in section 4 and "diminished responsibility" in section 5. It is a definition for the purpose of establishing criminal liability. It is not the civil definition for the purpose of detaining somebody in or committing somebody to a mental hospital. It includes a person suffering from a mental illness or handicap, dementia or any disease of the mind but excludes intoxication by alcohol or other substances. While the definition is not fully inclusive, the essential element for the court, for example, where criminal insanity is pleaded, is whether the accused had the mens rea to commit the offence for which he or she is charged. The definition of mental disorder plus the criteria in section 4 are intended to be the test for the court in coming to a decision on that issue.

The definition of "mental disorder" was the subject of lengthy debate in the Seanad where strong views were expressed that the definition should be the same as that provided for in the Mental Health Act 2001. I went to great lengths in that House to explain why this could not be so and I have no doubt that I will have to repeat myself in this House. While I will not get into the detail, I profoundly disagree with the proposition that there should be an alignment of the two definitions. The purpose of the Mental Health Act 2001 is to govern the circumstances in which people can or cannot be admitted to psychiatric institutions against their wishes and to set a framework for the treatment of patients with mental illnesses. The purpose of this Bill is radically different in that it seeks to establish a mechanism for decisions by the courts that people are to be excused criminal responsibility in certain circumstances and to deal with other issues such as inability to plead and so on. There should not be any spillover effects between the two areas of law.

If the two definitions were aligned, a judge in a civil matter, dealing with whether somebody was properly committed to prison and interpreting the law in that context, would in effect be deciding what the law meant in the context of a defence of diminished responsibility or a plea of not guilty by reason of insanity or a decision as to whether a person was fit to plead. The idea that the two definitions should be used does not withstand much argument on close examination. We are talking about two different things and there are reasons, as is clear from the report of the debate in the Seanad, that in some respects the legislation would be unworkable if there were the same definition for both purposes.

Section 3 deals with the issue of fitness to be tried. This term is being adopted instead of the term fitness to plead which is used in the relevant provisions of the Lunacy (Ireland) Act 1821 and which are being repealed. The section contains a new statutory definition of fitness to be tried based on the existing common law on which I have already commented. It provides that the question of fitness to be tried will in future be determined by a court, including the District Court, without a jury. It does not relate to the guilt or innocence of a person. If the person is found unfit to be tried, the proceedings will be adjourned and the court will then determine how the person should be dealt with until such time as he or she has recovered, if ever. As the person will not have been found guilty of any crime, he or she will only be detained if he or she is likely to be dangerous to himself or herself or to others, or in need of inpatient treatment.

Safeguards are provided in the section to reduce the possibility of persons found unfit to be tried being detained unnecessarily under the criminal law. In effect, these provisions provide that where, despite the fact that the accused is unfit to be tried, the court is satisfied that there is a reasonable doubt that he or she committed the act alleged, it will acquit him or her. In other words, a person who is clearly before a court in circumstances where unfitness is an issue can nonetheless be acquitted of the offence if the court decides that on the facts the person would, if he or she were fit to plead, be entitled to acquittal in any event. It will then be a matter for the relevant authorities, under the civil law, the Mental Health Act 2001, to take whatever measures they may deem necessary in the case of the person concerned.

The provision was amended in the Seanad by including a new ground for unfitness based on a person's inability to elect for trial by jury in a case involving an indictable offence. An amendment was also made to reduce from a period of 28 days to one of 14 days the initial holding period for assessment in section 3(6)(a)(i). Also in section 3, following a point made by Senator Tuffy in the other House, two further subsections (9) and (10) were added to protect an accused person by providing for the non-publication of a report or evidence in a case where a court decides not to order their discharge in circumstances where the procedure laid down in subsection (8) is applied.

Section 4 provides for a new verdict of not guilty by reason of insanity to replace the existing special verdict of guilty but insane and sets out the parameters of the test for insanity which is based on the existing common law position including recent Irish case law. The existing phrase guilty but insane has always been regarded by lawyers as an acquittal despite the language which very much gives one the other impression. I emphasise again that the test to be applied will be related to the time of the alleged commission of the offence and not the time of the trial.

The section also provides that after a verdict of not guilty by reason of insanity is returned, the court will then consider the mental condition of the person by reference to the Mental Health Act 2001 to determine whether he or she should be released or detained on the grounds that inpatient treatment is required or because the person may be dangerous to himself or herself or to others because of his or her mental condition. This approach is in accordance with obligations arising under the European Convention on Human Rights. Once one is acquitted the test as to what is done with one then is dealt with on the same basis as a decision would be made as to whether to commit one to a mental hospital under the ordinary civil law.

Section 5 introduces the concept of diminished responsibility into Irish law. It is only being applied in the case of murder, which carries a mandatory sentence of life imprisonment. Obviously one could apply it to other serious offences but since sentence is variable in those cases, there is no requirement to do so because the judge can take it into account by varying sentences, which are left in his or her discretion. There is no need to apply the concept in the case of other crimes because there is no mandatory sentence in those cases. In those instances the judge can at present take into account the mental condition of the convicted person when considering what sentence to impose.

The effect of this new rule will be that if diminished responsibility is successfully pleaded, a conviction for manslaughter will be recorded, with the sentence, at the discretion of the court, being any term up to imprisonment for life. The availability of the diminished responsibility verdict provides an alternative for juries and should reduce the danger that a jury will return an insanity verdict when faced with a person whom they regard as not being completely sane, even if he or she does not meet the legal criteria for acquittal on grounds of insanity.

Sections 6 and 7 deal, respectively, with the question of appeals to higher courts from decisions of lower courts that a person is unfit to be tried or is not guilty by reason of insanity. Under existing law findings of unfitness to plead/fitness to be tried or verdicts of guilty but insane are not regarded as convictions and consequently there is no provision for a person to appeal against them.

Section 8 provides that appeals may be made by the defence or the prosecution against a decision of the court of trial to order or not to order the detention of a person in these cases.

Section 9 provides for the establishment day in so far as it relates to the establishment of an independent Mental Health (Criminal Law) Review Board provided for in section 10 and Schedule 1 to the Bill. The title of the board was amended in the Seanad to include the words "(Criminal Law)" so as to distinguish it from the new oversight bodies established under the Mental Health Act 2001, namely, the Mental Health Commission and the Mental Health Tribunals.

The background to these provisions is that the Court of Human Rights has ruled that on the detention of persons of unsound mind, whether under the civil or the criminal law, the availability of some independent system of review of the lawfulness of detention is required to comply with the provisions of the Convention on Human Rights. The Mental Health (Criminal Law) Review Board as proposed in the Bill, will replace the existing ad hoc advisory committee which works to the Minister for Justice, Equality and Law Reform and, to comply with our obligations under the convention, will act independently of the Executive in future. It will no longer be an advisory committee giving the Minister for Justice, Equality and Law Reform its opinion for him to decide whether he accepts it. The review board's main function will be the regular review of the detention of persons found not guilty by reason of insanity or unfit to be tried, who have been detained in a designated centre by order of a court.

The board will be made up of a chairperson, who must be a practising barrister or solicitor of not less than ten years' experience or a judge or former judge of the Circuit Court or superior courts, and such other number of members as the Minister in consultation with the Minister for Health and Children shall appoint, at least one of whom must be a consultant psychiatrist. The term of office of members is five years and provision is made for reappointment. It is provided that the Minister may appoint the staff of the board under the usual conditions and that such staff shall be civil servants.

Section 11 sets out the various powers of the board. Those powers include the power to hold sittings, take account of court records, assign a legal representative to the person seeking review, require the attendance of such person before it, obtain evidence and demand the production of information and documents, pay the reasonable expenses of witnesses and administer oaths. The failure of persons to attend before the board or to comply with requests by the board for information or documents, or where a person is in contempt of the board, are offences punishable by a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both. Therefore, the board has teeth.

Section 12 deals with the various ways in which the detention of persons found not guilty by reason of insanity or unfit to be tried, whether they are in a prison or other designated centre, including persons detained under military law, may be reviewed. This applies, in the case of a prison, to the governor who shall act on the advice of an approved medical officer, and in the case of, for example, a psychiatric hospital, the chief medical officer. The review board has the responsibility for ensuring that the detention of such persons is reviewed six monthly or at such lesser intervals as it considers appropriate. In cases where a person who has not been acquitted is no longer unfit to be tried, the court of committal has to be so informed and shall order that the person be brought before it to be dealt with as the court thinks proper. In the case of detention under military law, the appropriate authority has to be similarly informed so that the court martial shall be reconvened.

Section 13 provides for the temporary release and transfer of and other matters related to detained persons. The purpose is to arrange for such matters without the need to apply to the review board every time. It is provided that the consent of the Minister must be obtained to ensure that the public interest is safeguarded. The Minister for Health and Children might also have an interest, particularly in the case of transfers to another designated centre, and that is also covered in the section. The wording of section 13(7) was amended in the Seanad so as to place a positive obligation on the Garda to arrest persons unlawfully at large. I am not prepared to remove from the Bill the discretion regarding the arrest of a person allowed to the staff of a designated centre in such circumstances, in line with section 27 of the Mental Health Act 2001. It may well be the case that practicality, expediency or the common good may require them to act also, having regard at all times to any risk to their own safety.

Sections 14, 15 and 16 were inserted in the Bill in the Seanad. Sections 14 and 15 relate to the complex question of transferring persons suffering from a mental disorder from places of detention to the Central Mental Hospital for treatment and back again, and matters related thereto.

An important point must be made in this regard, namely, that this area of the Bill is designed to deal principally with persons who have been found guilty by a court of committing a crime or who will be in the initial stages of the criminal justice process. The onset of their mental illness will have arisen during their period of imprisonment and is not a matter that will have had to be addressed during their trial. The provisions are expressed to apply to persons who are in prison on foot of a sentence of imprisonment, on committal awaiting trial, on remand or otherwise. In other words, such persons will be involved in the criminal justice process in the ordinary way, namely, on the basis that the question of their sanity, and thus their legal capacity to commit a crime, will not have been in issue.

This has been a matter of concern to me and my Department for some time and it was my original intention to deal with it in the Prisons Bill, which was recently published. However, as the matter is appropriate to this Bill, the Government decided to include the appropriate provisions in it to ensure their earlier enactment into law. The current procedures involve certificates by psychiatrists, processes of certification and de-certification and the making of transfers by the Department from prisons to the Central Mental Hospital. These procedures are out of date and confusing in their operation, to say the least, and need to be regularised. The three new sections inserted in the Bill are intended to deal with the shortcomings of the existing arrangements by streamlining the administrative formalities.

I will not go into any more detail at this time as there will be ample opportunity to discuss these issues on Committee Stage. However, I emphasise that the present situation is indefensible and unworkable. It must be the case that if a person becomes psychiatrically ill while in prison, there is an effective and speedy transfer of that person to appropriate therapeutic conditions. I have personal experience of seeing people lying in padded cells while their fate is being cogitated upon. It is not a happy sight. While padded cells will be gone from every institution in the State by March, nonetheless, the notion that people can be in some kind of limbo while others argue about which institution should accommodate them is not acceptable and was the subject of negative commentary from the Committee for the Prevention of Torture which visited Ireland.

Section 16 provides for the mechanism by which the case of a person who develops a mental illness while in prison can be reviewed by the mental health review board. This may be requested by the Minister for Justice, Equality and Law Reform or by the person themselves or on the initiative of the review board itself.

The purpose of section 17 is to ensure that evidence as to the mental condition of an accused person shall not be raised by the defence during the course of a trial unless notice of intention to do so has been given to the prosecution in accordance with rules of court. This is designed to ensure that neither the prosecution nor the court will be ambushed by the surprise production of such evidence at a late stage in the trial process.

Section 18 applies the provisions of the Bill on the review of detentions to persons already in detention before the Bill comes into operation. Persons for whom I at present exercise responsibility, advised by a committee, will come under the new system.

Section 19 deals with consequential technical changes to the relevant provisions in military law — the Defence Act 1954, as amended — to maintain consistency between courts martial and the non-military criminal law. Section 20 is the usual expenses provision. Section 21 provides for grants to be made to the review board established under section 10. Section 22 is a repeals and transitional provision to be read in conjunction with the Second Schedule while section 23 provides for the Short Title and commencement of the Act. The First Schedule sets out the provisions applicable to membership of the mental health review board and its procedures. The Second Schedule provides for the necessary repeals.

The Bill is an important step in the development of statutory rules and guidelines in a difficult and complex area of the law. On my appointment as Minister in 2002, I decided that this matter would be finally dealt with during my tenure as Minister. The issue has been in the broader legislative process for too long — a quarter of a century or more — and now is the time to bring it to finality.

The Bill seeks to achieve a fine balancing act between the need to protect society at large while also seeking to protect members of society who suffer from mental disorder so that they will not be answerable for crimes which they had not the mental capacity to commit. The Bill also seeks to ensure that those detained under the provisions of the legislation have access to a body independent of the Executive of the day and independent of the pressures that weigh on members of the Executive through newspaper coverage, from victims' relatives and the like, which will ensure that those detained have an objective and dispassionate mechanism to help them to arrive at decisions. This independent body will keep their detention under continuing regular review and, in doing that, will ensure that our international human rights obligations in this sensitive area are respected. At present, the existing informal arrangement is our best effort in a bad statutory situation to accord international human rights standards to people caught up in the process in the way referred to in the Bill. The Bill is urgently needed. I commend it to the House.

See this speech in context