Brian Lenihan Jnr (Dublin West, Fianna Fail)

The point of departure is that the Minister has decided to slot this Bill and his definitions therein into the settled case law and the judicial decision on this branch of the law. The Minister may have erred but so did the Supreme Court in Doyle v. Wicklow County Council, in which the court incidentally approved the views of Mr. Justice Henchy in an earlier decision. The report which Mr. Justice Henchy wrote extra-judicially may be in conflict with the expression he gave of opinion judicially in this particular matter.

The point the Senator has raised is an interesting one. The purpose of the Bill, in terms of the test for insanity for the purposes of the criminal law is to restate the current position as it exists in the judge-made common law. That is the decision the Government has made on this. 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". When the McNaughten rules were formulated by the judges in the 19th century they did not allow for the defence of "irresistible impulse". They were criticised on that ground by many psychiatrists and jurists. I think it became the received wisdom among lawyers and jurists that the rules required revision in light of developments in psychiatric science. Attempts at a defence of "irresistible impulse" should be recognised.

The courts across the water managed to avoid having to give an authoritative determination on this issue and eventually parliament intervened with the Homicide Act 1957. In this jurisdiction the courts accepted the view that the McNaughten rules were inconsistent with modern psychiatric science and decided to modernise the rules by recognising the concept of irresistible impulse. What Senator Henry is saying is that a large number of psychiatrists of the more modern vintage do not accept the concept of irresistible impulse. The decision of the Government and the Minister is that in formulating a definition for the purposes of this legislation, he should build on what the courts have already decided.

To constitute the irresistible impulse, 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 Supreme Court accepted that as the standard in Doyle v. Wicklow County Council in 1974. In the 1994 decision of the people in pursuit of the Director of Public Prosecutions v. Courtney, the Court of Criminal Appeal stated unequivocally that irresistible impulse is a limited form of insanity recognised by our law. The lawyers have argued about this and the English courts do not recognise an irresistible impulse as a symptom from which a jury might deduce insanity but the issue is not so relevant there. I misstated the English law, though not Irish law.

The homicide legislation enacted in the United Kingdom in the 1950s did not recognise the concept of irresistible impulse; it recognised the concept of diminished responsibility. Irish law has not provided for that to date, it has provided for the concept of irresistible impulse. It has been decided to codify the existing position as recognised by the judges of the Supreme Court in this case. Far be it for me to disagree with the Minister. There is the question as to whether the whole definition in this matter would be better left to the courts in their wisdom, having heard appropriate evidence from the experts to be adapted from time to time. That said, the argument would be made that the Legislature has to give guidance and so we have based the guidance on what the judges have told us.

The difficulty, and it is the same difficulty with which the Senator commenced the debate this afternoon, is that we are talking not just about psychiatry but the area where psychiatry has to encounter the concept of criminal responsibility. The interaction between those two concepts is very difficult and it involves not just an acid test psychiatric call but a political call which we have to make as legislators. The boundary one decides to mark out in this area cannot be left exclusively to psychiatrists given that it is an area relating to the problems of the criminal law, and people must have confidence in the concept of personal responsibility. That is my own view on it but the Minister has taken a view and so has the Government.