Deputy O'Dea gave me notice of his intention to raise the following matter: the unsatisfactory situation which pertains as a result of the detention of people who are adjudged guilty but insane, and the consequent danger to which the public may be exposed. Before calling on Deputy O'Dea, I consider it important to remind Members that a matter which relates to the issue under discussion is currently the subject of proceedings for a judicial review in the High Court. I deem it imperative in view of the sub judice rule that no reference whatsoever be made to that particular case. Our comments this evening must be confined to the general matter under discussion. I feel sure Deputy O'Dea and other Members will appreciate that point of view.
Private Members' Business. - Criminal Insanity.
I thank you, Sir, for allowing me to raise this important matter and I appreciate the point of view you have expressed.
Recent events have highlighted the grossly inadequate and confused nature of the law relating to criminal insanity. The Irish law on this subject is still based largely on the McNaghten Rules which were laid down by the British courts in the middle of the 19th century. Broadly, these rules state that a person is legally insane if, but only if, either (a) he does not understand the nature and quality of his act or its wrongfulness or (b) he does understand but cannot refrain from committing the act because of a defect in reason caused by mental illness. This definition is extremely narrow and ignores developments in psychiatric medicine for the past 150 years. For example, it does not encompass such conditions as personality disorders, psychopathy or sociopathy.
The United Kingdom amended their law in this area in 1957. The UK legislation introduced the defence of diminished responsibility to take account of mental deficiency which falls short of insanity as defined under the McNaghten Rules. A similar change was recommended here in 1978 by the Henchy committee on mentally ill and maladjusted persons but, to date, no action has been taken.
The right of a person who has been adjudged guilty but insane after having committed a horrific crime, or perhaps a series of crimes, to be readmitted into society is uncertain. That uncertainty has caused great public disquiet. If any such person were to be released, then it is safe to assume that no Irish jury will ever again find that a person is guilty but insane, particularly in a murder case. The reason for this is obvious. Legal history shows that mistakes have been made in the past in this area, often with devastating consequences. In one celebrated case in the UK in the early 1960s, a person who, by his own admission, poisoned quite a few people was adjudged guilty but insane and spent considerable time in a hospital for the criminally insane. On his discharge an eminent psychiatrist not only pronounced him "recovered" but gave him a letter of recommendation for employment. The psychiatrist's professional opinion was that he had made an "extremely full recovery". A few years later the person who had made that "extremely full recovery" was found guilty of poisoning two other people and attempting to poison two more.
This State has an obligation to give legal recognition to categories of mental illness which falls short of our very narrow definition of insanity. That change will have to be accompanied by clear, definitive and transparent provisions for dealing with those people, particularly in cases where they seek subsequently to be released on the grounds that they have now become sane. Rumours that these reforms were imminent have proved for many years to be greatly exaggerated. The genuine and widely felt public concern to which this matter has given rise dictates that the matter must now be given the most urgent priority.
I thank the Deputy for raising this matter. There is no dispute about the fact that we have needed for some time to look at the law relating to criminal insanity and, as the Deputy will be aware, successive Administrations in recent years have committed themselves to suitable and appropriate reform.
Most legislative provisions dealing with criminal insanity date back to the last century, as Deputy O'Dea has said, and it is clearly time for change to take account of changing circumstances, new knowledge and concepts of mental illness and new methods of dealing with old problems.
As the Deputy is aware proposals for the amendment of the law relating to criminal insanity have been under examination in my Department for some time. I am sure Deputy O'Dea, as a former Minister of State at the Department, will know that. While it would not be appropriate for me to give specific details of the proposals, I have already indicated the general areas which will be addressed in the legislation. These include the question of fitness to plead at a criminal trial, the definition of criminal insanity, the possible change of the guilty but insane verdict, the question of appeals from such verdicts and from findings of unfitness to plead, the introduction of a new verdict of guilty but with diminished responsibility, and the procedures governing the detention and release of persons found guilty but insane.
The introduction of the concept of diminished responsibility will be of special interest. It provides for the intermediate situation where a person is not legally insane but is nevertheless suffering from a mental disorder which reduces his or her culpability. When applied in the case of murder — which carries a mandatory sentence of life imprisonment — the effect of a successful plea of diminished responsibility would be a conviction for manslaughter with the sentence, at the discretion of the court, being any term of imprisonment up to life.
These are all complex matters requiring careful consideration and research. A number of committees of experts both here and in the neighbouring jurisdiction have been examining this whole area and have given their views and recommendations, and their reports are being considered and taken into account by my Department in the formulation of the proposals which I will bring to Government. The Third Interim Report of the Interdepartmental Committee on Mentally Ill and Maladjusted Persons, commonly referred to as the Henchy committee, made recommendations in 1978 on all the issues I have mentioned and special account will be taken of their views. Account must also be taken of various relevant decisions of our courts and also of decisions of the European Court of Human Rights in regard to the rights of persons detained in various circumstances, particularly their right to a review of the reasons for their continued detention by a court or other quasi-judicial body independent of the Executive.
Because of pressing priorities in other areas, progress in bringing forward reform of the law in this area has not perhaps been as fast as we would want. However, a great deal of work has been done and, while some further examination is required, I hope to be in a position to present a Bill to the Oireachtas at the latest by early next year.
As regards the position under the present law, the powers of the Minister for Justice in relation to the detention of persons found guilty but insane are contained in the Trial of Lunatics Act, 1883. This legislation has been operated by successive Administrations in relation to such cases. Indeed, new legislation in this area would not affect the circumstances of those currently detained having been found guilty but insane. They would continue to be dealt with under the terms of the legislation under which they are detained.
The Supreme Court in 1991 held that such a person may apply to the Executive "for his release on the grounds that he is not suffering from a mental disorder warranting his continued detention in the public and private interests, then the Executive, in the person of the Government or the Minister for Justice, as may be, must inquire into all of the relevant circumstances. In doing so, it must use fair and constitutional procedures".
To help the Minister in the consideration of such cases, the then Government decided, in September 1991, to establish an independent advisory committee to advise on applications for release from the Central Mental Hospital, Dundrum of persons in this category. This committee comprises a senior counsel as chairman, a consultant psychiatrist and a general practitioner.
The terms of reference of this committee are as follows:
To advise the Minister for Justice as to whether or not the applicant is suffering from any mental disorder warranting his continued detention in the public and private interests — including the question of whether he would be a potential danger to any member of the public if released — having regard to any relevant information, material or submissions as may be tendered to or come to the notice of the committee, including any information, material or submissions tendered by or on behalf of the applicant.
It must be stressed that this committee is purely advisory and the ultimate responsibility for the detention of such persons lies with the Minister for Justice in accordance with the provisions of section 2 (2) of the Trial of Lunatics Act, 1833, as adapted and lest there be any doubt, new legislation in this area would not affect the circumstances of those currently detained having been found guilty but insane. They would continue to be dealt with under the terms of the legislation under which they are detained.
Why? That is not right.