The Criminal Law (Insanity) Bill 2002 is important and long awaited legislation. I have just been reflecting on how long. In 1978 the former Supreme Court judge, Mr. Justice Henchy, reported and appended to his report a draft Bill. The mills of God grind slow but grind exceedingly fine. Most agree that our law on insanity is in need of reform, a view expressed for some time by the Judiciary, legal practitioners, commentators, academics and the medical profession, particularly by those members practising in the field of psychiatry.
It would be accepted by reference to the totality of criminal proceedings that the raising of the defence of insanity to a criminal charge, usually one of murder, is comparatively rare. However, that in no way reduces its importance in the general sphere of the criminal law because insanity raises fundamental questions about the whole notion of criminal responsibility which is premised on the principle that the individual is personally answerable to society for his or her actions. This accountablility arises from the fact that the individual will be held responsible for his or her actions. However, the criminal law recognises that in circumstances where the individual does not have the mental capacity to control his or her conduct as a result of mental disorder, no blame or liability will attach to him or her.
An acquittal based on the present special verdict of guilty but insane has exceptional consequences for the accused person because it subjects him or her to a special regime of detention. At present that means that the person is held in the Central Mental Hospital. The State bears two main burdens of responsibility in these cases. The first arises because it is paramount in the public interest to curtail the freedom of the person until he or she no longer poses a threat to society at large. The second arises from the fact that the State has to balance this duty with its responsibility to preserve and protect the human rights of the person concerned.
It has been said with some degree of understatement that this area of law has what are termed fundamental social and moral implications. I have just outlined two. However, there is a third consideration because the fundamental issue in any debate on insanity and the criminal law – something that goes right to the heart of the matter – is the moral distinction that needs to be drawn between the bad and those who do not necessarily have the mental capacity to commit crimes. At this point I want to sound a word of caution which has to do with the intention and policy considerations behind this Bill. I can put those words of caution no better than has been expressed by noted commentators, Finbarr McAuley and Paul McCutcheon, in this jurisdiction in their leading authority on the issue,Criminal Liability:Legal and medical evaluations of the conditions that might properly attract the label “insanity” can differ profoundly. The law regards several conditions, such as epilepsy and hypoglycaemia, that medical professionals do not classify as mental disorders as a basis for the insanity defence. This highlights the different perspectives of the relevant disciplines and it should be realised that the defence raises a legal question of responsibility, not an issue of medical diagnosis and classification. Nevertheless, it is invariably the case that medical evidence is adduced at trial and, it can be assumed, is taken into account in the determination of the defendant's sanity. Thus, while a degree of congruence between the medical and legal evaluations can be expected, the ultimate resolution of the issue is one of law, not medicine.
The main purpose for bringing this legislation before the House is to clarify, modernise and reform the law on criminal insanity and fitness to be tried to bring it into line with the jurisprudence of the European Convention on Human Rights. As Members of this House will probably be aware, a Bill to give effect to the convention in Irish law in line with an obligation under the 1998 Good Friday Agreement has reached Committee Stage in the other House. The Bill before this House, in addition to dealing with some general issues, contains more detailed provisions on substantive matters such as fitness to plead, a statutory definition of criminal insanity, a new verdict of not guilty by reason of insanity – instead of the older verdict of guilty but insane – and a new plea of guilty but with diminished responsibility in cases of murder.
To appreciate fully the importance of and the need for this Bill it should be noted that most of our legislative provisions dealing with criminal insanity date back to the 19th century and some to the early 1800s. However, the origins of the insanity defence actually go back much further, they can be traced back at least to the 13th century. However, even with that early realisation of the difficulty, the common law was very slow to recognise a defence to a criminal charge based on insanity. Whatever amelioration it did provide from the severity of the sentence, the quality of mercy tended to be somewhat strained until at least the 18th century.
The attitude of the time is best illustrated in the writings of the noted criminal jurist, Hale, when he stated, metaphorically one hopes, that insanity was no defence unless the defendant resembled a beast rather than a man. It was not until the case of Rexv. Hadfield in 1800 that the modern defence of insanity began to evolve. The defendant in the case thought he had to die in order to save the world. His problem was that as suicide was a mortal sin and as such a sin above all others, he could not kill himself and hope to avoid eternal damnation. He chose instead to fire a shot at the King, which was a capital offence, and it was held that he was not accountable for his actions because of insanity and he was acquitted. History does not record if his disappointment drove him to further despair.
The foundation case in so far as modern insanity in the criminal law is concerned is that of Rexv. M'Naghten in 1843. In that case the defendant suffered from an insane delusion that Sir Robert Peel, a predecessor of mine in a different jurisdiction, was persecuting him and he believed that Peel had to to be killed. However, he killed Peel's unfortunate secretary by mistake. At his trial M'Naghten was acquitted because of insanity. The decision of the court caused so much public outrage that the House of Lords requested the Law Lords to explain the defence of insanity. The answer formulated by the Law Lords has come to be known as the M'Naghten Rules which have formed the basis for the development of the defence of insanity, albeit within extremely narrow limits, in the countries with common law systems ever since.
It is clear, however, that with the development of modern psychiatry and a greater understanding of the underlying causes of mental illness and its associated conditions it has been apparent for some time that the criminal law dealing with insanity needs to be clarified and updated. Serious concerns have been expressed for some time by judges, lawyers and psychiatrists that the main aspects of the law in this area are in need of review. The Criminal Law (Insanity) Bill 2002 addresses these concerns by implementing the main recommendations of the third report in 1978 of the interdepartmental committee on mentally ill and maladjusted persons which was chaired, as I said, by Mr. Justice Henchy.
A person's mental health in relation to criminal law proceedings is relevant in two ways. First, the person must be fit to plead to the charge. If it is shown that the person, because of insanity, is unable to understand the charge against him or the difference between guilty and not guilty, or is unable to instruct counsel, challenge jurors, or follow the evidence, the trial cannot proceed. This is essentially because its fairness cannot be guaranteed due to the person's condition. The test at common law to be followed in such instances was laid down by the Supreme Court in the State (Coughlan)v. Minister for Justice (1968). This test is not limited to any particular definition of insanity; it simply assesses the person's ability to comprehend what is going on. If the person is found to be unfit to plead, section 2 of the Criminal Lunatics Act 1800 provides that he or she should be detained in strict custody until the pleasure of the Government be known.
Second, where a person is found fit to plead, the trial will proceed, but the person may raise the defence of insanity. The law will presume that the person is legally sane and, if over the age of 14 years, is fully accountable for his or her actions. However, if the person is able to show, on a balance of probabilities as opposed to proving it beyond reasonable doubt, that at the time the offence was committed, he or she was legally insane, then he or she will have a defence. In these circumstances, the person will be deemed to have lacked the necessarymens rea, or guilty mind, and should not, therefore, be held accountable. The test applied here is based on the M'Naghten rules to which I have already referred. Those rules require that it must be shown that a person must have suffered, at the time of his or her act, from a defect of reason due to disease of the mind so that he or she did not know what he or she was doing, or did not know that it was wrong.
Strictly speaking, the M'Naghten rules apply to a person who is suffering from insanity which manifests itself in insane delusions. Nevertheless, the rules were accepted as the general test for insanity in Irish law, despite the fact that doubts had been expressed as to whether they represented a comprehensive statement of Irish law on the issue. However, following the decision of the Supreme Court in the Peoplev. Hayes in 1965, and its subsequent approval by the Supreme Court in Doyle v. Wicklow County Council in 1974, it is clear that the M'Naghten rules are not the sole and exclusive test for the defence of insanity in Ireland. The decision in the latter case means that a third factor – an irresistible impulse brought about by mental illness – which the court said “debarred [the defendant] from refraining from committing the act”, may also be taken into account. This extension of the rules to comprehend a new criterion of volitional control goes further than a strict interpretation of the M'Naghten rules would have allowed. Thus, Irish law seems to be more aligned with the formulation of insanity as set out by Sir James Fitzjames Stephen in his Digest of the Criminal Law in 1891 – an early attempt in Victorian days to provide a codification of the criminal law – which admits of the possibility of a disease of the mind preventing a person from controlling his or her conduct. It is interesting to note that Sir James Fitzjames Stephen codified the English criminal law, as I am currently engaged in a similar project with regard to our domestic law. Mr. Finbar McCauley, to whom I referred earlier, is chairman of a working group that is embarking upon that exact task.
Sir James Fitzjames Stephen's efforts to bring a codification of English criminal law before Westminster constantly fell foul of parliamentary vagaries, occasioned in particular by Irish MPs who were seeking home rule. Senators will be interested to know about that footnote to Irish history.