Jim Walsh (Fianna Fail)

The Senator's points are interesting as they go to the heart of the Bill and its intentions. I agree with Senator Henry's point, which was endorsed by the Minister, that the threshold should be high. One is exonerating people from serious criminal offences because of their mental state. I concur with the Minister in respect of the use of the word "insanity". The word has connotations, perhaps not for the medical profession, but for the public at large. The Minister made the valid point that it is important that public confidence in the system is secured when people are excused in court of an offence on the grounds we have mentioned. Confidence can sometimes be dented, however.

I am not sure I agree with Senator Henry's comment that persons who are mentally ill should be taken out of the criminal court process. I hope I understood her correctly. Surely the nature of the illness should be the relevant factor. I think that what qualifies should not depend on the definition of "mental disorder" one uses. I note the distinction the Minister made between the definition in the 2001 Act and that in this Bill. I am inclined to concur with his point that the manner in which it is defined here — it is not over-defined — is probably preferable because it takes into account case law that has arisen from years of jurisprudence. What is really relevant in determining and defining it, surely, must be section 3(2)which states:

An accused person shall be deemed unfit to be tried if he or she is unable by reason of mental disorder to understand the nature or course of the proceedings so as to——

(a) plead to the charge,

(b) instruct a legal representative,

(c) make a proper defence,

(d) in the case of a trial by jury, challenge a juror to whom he or she might wish to object, or

(e) understand the evidence.

Surely that will be the yardstick by which the court will assess the matter, before coming to a decision with the assistance of medical evidence. The real test is whether the person, in a legal scenario, is being excused.

The Minister mentioned section 4(1)(b) of the Bill, which states that a court or jury should find that "the accused person is not guilty by reason of insanity" if:

the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she——

(i) did not know the nature and quality of the act, or

(ii) did not know that what he or she was doing was wrong,

(iii) was unable to refrain from committing the act,

I understand that the clearly established definitions in the Bill take account of case law. We will have to leave it to the discretion of the courts to apply a test. It is obvious that legal people will make certain arguments to defend their clients. People can sometimes feign insanity. It can often happen that when one looks at or speaks to a person, one cannot ascertain their nature or tell whether they qualify under the terms of the provisions I have mentioned. That has to be tested. People should be held accountable for their actions unless they fit the criteria established in sections 3 and 4. A great deal of the debate on the definition of mental disorder may not be as pertinent as some of the other points made by the Senator, bearing in mind some of the Bill's other qualifications on that issue.