Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Minister for Justice, Equality and Law Reform takes the view that the amendment is not appropriate. The legislation we are enacting must be read in the context of the evolution of our criminal law. There is a decided judicial authority on the precise meaning of insanity and on the precise circumstances in which the plea of insanity will excuse an offender from criminal liability. The Minister sees the Bill as slotting into that context of Irish jurisprudence, and he maintains that the eventual Act will have to be construed in that context.

The development of the defence of insanity since the 1960s has been fixed on the question of a person's responsibility for his or her actions. That is unique among common-law systems, not just neighbouring jurisdictions but those further afield. The plea of insanity in Irish law is an excuse, rather than a condition. It is a factor that excuses liability from the commission of a crime. The Minister is prepared to say that, once the person is excused criminal liability, then the civil definition, which Senator Henry is essentially proposing through the amendment, will apply.

When it comes to the care of the person who has been tried, the civil definition will apply, as I understand it. For the purposes of defining the defence of insanity in Irish law, the Minister has drafted the proposed legislation on the basis of existing case law. That preserves the definition, and the Minister is anxious to preserve it into the future.