Michael McDowell (Dublin South East, Progressive Democrats)

The Senator raises an interesting point. The purpose of the Bill in terms of the test for insanity for the purposes of criminal law is to restate the current position as it exists in judge-made common law. The third limb of the test for insanity as it exists in our law and, as set out in section 4(1)(a)(iii) of the Bill, is known as "irresistible impulse". It has lightly been referred to as the "policeman at the shoulder" case. In other words, would the person have still committed the act if a policeman had been standing right beside him. An affirmative answer indicates the test is met.

I stress that to constitute this form of insanity, the person must have had an irresistible impulse and not an unresisted impulse and it must arise from a defective reason due to a mental disorder. The defence of irresistible impulse was clearly accepted by the Supreme Court in the case of Doyle v. Wicklow County Council in 1974 although earlier cases had given indications that it might well form part of Irish law. In the 1994 case of the People, at the suit of the Director of Public Prosecutions v. Courtney, the Court of Criminal Appeal stated unequivocally thatirresistible impulse is a limited form of insanity recognised by our law.

The Senator may be interested to hear the following. In English law, the celebrated Criminal Law Textbook, from which I learned my criminal law many years ago, Kenny suggested that it had been overlooked that from earliest times the common law recognised an irresistible impulse of a temporary character as a ground of partial excuse in the case of homicide committed under the emotional stress of provocation. He cited early English authorities which suggest that an insane irresistible impulse should be admitted as a defence because it meant that the act was not voluntary. Since then, the English Court of Criminal Appeal rejected a defence of irresistible impulse. Senator Henry will be interested to know they described it as a fantastic theory which, if it was to become part of our criminal law would be merely subversive.

The English courts will not recognise an irresistible impulse as a symptom from which a jury might deduce insanity but the issue is not so relevant in the light of the statutory defence of diminished responsibility in homicide cases. The defence of irresistible impulse is not recognised in Australian law as an independent ground of insanity. There is much law on this issue but I will not waste the time of the House reading it out. The information is available in McCutcheon's Criminal Law, page 1,113 and following pages.

This fantastic theory is part of Irish law. The question is one of whether I should close it down. I have not attempted in this Bill to restate the common law test but to take it as a given and to restructure our law accordingly. What the English courts refer to as a fantastic theory has been solemnly confirmed on two occasions by the Irish courts. I would need to be heavily persuaded about the removal of this provision.