Michael McDowell (Dublin South East, Progressive Democrats)

The Criminal Law (Insanity) Bill 2002 is important and long awaited legislation. I have just been reflecting on how long. In 1978 the former Supreme Court judge, Mr. Justice Henchy, reported and appended to his report a draft Bill. The mills of God grind slow but grind exceedingly fine. Most agree that our law on insanity is in need of reform, a view expressed for some time by the Judiciary, legal practitioners, commentators, academics and the medical profession, particularly by those members practising in the field of psychiatry.

It would be accepted by reference to the totality of criminal proceedings that the raising of the defence of insanity to a criminal charge, usually one of murder, is comparatively rare. However, that in no way reduces its importance in the general sphere of the criminal law because insanity raises fundamental questions about the whole notion of criminal responsibility which is premised on the principle that the individual is personally answerable to society for his or her actions. This accountablility arises from the fact that the individual will be held responsible for his or her actions. However, the criminal law recognises that in circumstances where the individual does not have the mental capacity to control his or her conduct as a result of mental disorder, no blame or liability will attach to him or her.

An acquittal based on the present special verdict of guilty but insane has exceptional consequences for the accused person because it subjects him or her to a special regime of detention. At present that means that the person is held in the Central Mental Hospital. The State bears two main burdens of responsibility in these cases. The first arises because it is paramount in the public interest to curtail the freedom of the person until he or she no longer poses a threat to society at large. The second arises from the fact that the State has to balance this duty with its responsibility to preserve and protect the human rights of the person concerned.