Charles Flanagan
Question:12 Mr. Flanagan asked the Minister for Justice if he intends amending the law relating to the defence of criminal insanity, in the light of a recent court decision.
Ceisteanna — Questions. Oral Answers. - Criminal Insanity Defence Law.
Tomás MacGiolla
Question:41 Tomás Mac Giolla asked the Minister for Justice if he will amend the Trial of Lunatics Act, 1883, in the light of the decision of the Supreme Court in the recent Ellis case; if his attention has been drawn to the call made by a person (details supplied) for the updating of the law relating to criminal insanity; and if he will make a statement on the matter.
I propose to take Questions Nos. 12 and 41 together.
I agree that this matter needs to be looked at. It involves complex issues which need very careful and detailed study and I am having the matter examined in my Department to see what changes in the law should be made. I can assure the House that as soon as this examination is completed I will seek Government approval to the introduction of whatever amending legislation seems necessary.
However, as there are a number of cases still pending before the courts in this area I would prefer not to make any detailed comments in the matter at this stage.
May I ask the Minister to be a little more specific? He has said he realises there is serious concern about the difficulties with the law in this area. Will the Minister allay the fears of people in certain quarters regarding the uncertainty in the law and will he affirm that he will introduce legislation in this regard as quickly as possible? Can I further ask the Minister to accept that the whole concept of a special verdict may be open to abuse in so far as it may be used as a device or a ploy by certain people charged with and perhaps convicted of offences and that there has been a considerable departure from the long standing tradition of the criminal defence of insanity since first formulated in the middle of the last century? May I ask the Minister to accept that the strict rules of court, entitled the M'Naghten Rules, have long since been departed from by the courts and this is giving rise to some uncertainty? May I ask the Minister to commit himself to addressing that problem as well as addressing himself to the fundamental uncertainty arising from section 2 (2) of the Trial of Lunatics Act, 1883, which states that a person convicted——
I appeal to the Deputy not to put too many supplementary questions to the Minister. The Chair dissuades Members from putting supplementary questions in omnibus form.
Would the Minister outline his function as far as section 2 (2) of that Act is concerned?
I understand the Deputy's concerns about the question of early releases etc. and I am having this matter examined. However, I do not think I should comment on the matter beyond that while there are cases still pending before the courts. The question of the issues to be addressed in legislation may seem clearcut, but the drafting of legislation in this area is complex and it needs to be very carefully done. I think the Deputy will accept that.
In relation to the M'Naghten Rules, the rules governing the defence of insanity, may perhaps need to be reformulated and provision made for other possible defences such as diminished responsibility. The Supreme Court have not yet decided whether the release of persons found guilty but insane should properly be a matter for the Government or the courts. In the recent Ellis case, the Supreme Court made it clear that their decision in that case was based on the facts particular to it, was not of general application, and that this issue would have to be resolved before legislation was contemplated.
Is the Minister aware that this issue was debated in the United Kingdom over 30 years ago, that the defence of criminal insanity was abolished and was replaced, under the UK Homicide Act, 1975, with the provision whereby a person could be found to be suffering from diminished responsibility? Does the Minister regard this as a suitable precedent which we should study from the point of view of implementing a similar provision in this country?
The defence of diminished responsibility was provided for in England by the Homicide Act, 1957. In so far as murder cases are concerned, it has led to the virtual demise of the insanity plea. The possibility of introducing such a defence in this country is under active consideration.
Will the Minister confirm that whatever amending legislation is introduced — I hope amending legislation will be introduced — cannot in any way affect the cases which have already been dealt with by way of verdict from the Central Criminal Court and that those cases will be dealt with under existing laws? Will the Minister confirm that whatever amending legislation is introduced will have no retroactive effect in this area?
Yes.
I am not seeking in any way to comment on cases which are pending but I urge the Minister to amend the law on which, I think, Queen Victoria had a direct influence. Inconsistencies have existed in this law since 1883. I ask the Minister to look, in particular, at the potential danger these people can cause to themselves or the community whether they are found not to be insane.
Obviously such issues will have to be taken into account in any proposed changes to the legislation. The Supreme Court made it clear that their decision in the case to which I have already referred was based on the facts particular to it and were not of general application and that this issue would have to be resolved before legislation was contemplated. We have got a particular but not a general ruling from the Supreme Court.
May I ask the Minister if the defence of criminal insanity can apply to sentences imposed under the Criminal Justice (No. 2) Bill, 1990, which is presently being debated in the Seanad? In other words, will the sentence of 40 years apply to a person who is insane for the murder of a garda or prison officer?
I would not like to give the Deputy an answer off the top of my head and I will send him the relevant information.
May I ask the Minister——
Please, Deputy McCartan, we have been able to deal with only one question to the Minister for Justice and there is not a great deal of time left for questions for today.
I will be very brief.
May I ask the Minister if he would be prepared to discuss this issue with the spokespersons on Justice from the various parties so that we can tease out further some of the sensitive matters?
I will think about the Deputy's suggestion. As I have said, I should like to receive a general guideline from the Supreme Court rather than the specific one we have received. I am willing to sit down and discuss the matter with the spokespersons.
Can I take that as a "yes"?
The Deputy may take it as a "maybe".
Deputy Charles Flanagan for a final question.
The Minister has indicated that he may discuss the issue with us but if he decides not to I ask him to look at the matter by moving away from the special plea of guilty but insane to one of not guilty by reason of insanity and the imposition of a conviction along the lines of that imposed for a person found guilty of manslaughter rather than the special verdict which has given rise to uncertainty.
I will have the experts on that matter look at the Deputy's suggestion.