I welcome the opportunity to raise this important topic. The position in relation to the verdict of guilty but insane is grossly unsatisfactory. This was graphically illustrated recently in the Gallagher case. In that case, as I recall, two committees appointed by the Minister for Justice took the view that the prisoner had not recovered sufficiently to re-enter society. The inspector of mental hospitals took a different view and then subsequently reversed his decision. This did little to inspire public confidence. Public confidence could hardly have been restored by the fact that the initial report from the inspector of mental hospitals described the prisoner as recovered while another report immediately afterwards from the same source stated the prisoner had not recovered. One can hardly be surprised that the public is bewildered and the victim's family has suffered and is suffering extreme trauma and distress.
Legal history shows that mistakes have been made in the past in this area, often with devastating consequences. In one celebrated case in the United Kingdom 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" and "that he was above average intelligence". 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.
The question that arises in this type of case is whether psychiatrists should have such a central role in saving those convicted of some of the most horrendous crimes from due process of law and transferring them to State run institutions for the so-called criminally insane. It has been argued, and in my view rightly, that the psychiatrists' role in such matters must be limited to helping those who are overtly psychotic. When psychiatrists get involved in grey areas such as personality disorder and immature personality they do so, not only at their own peril, but at the peril of society as a whole. There is already sufficient violent crime without releasing into society other violent criminals who may have recovered.
To say the law is in a state of confusion is a charitable understatement. What is the status of a report made by a committee which the Minister for Justice can appoint from time to time to check whether somebody has recovered? Is the Minister bound by its recommendations or can she ignore them? What is the position if the inspector of mental hospitals disagrees with the report of the committee appointed by the Minister for Justice? Is the position different if the inspector of mental hospitals reports as a result of a specific request by the Minister for Health? A recent Supreme Court decision would seem to suggest that it is. All these legitimate questions, neatly avoided in the Gallagher case, still remain and must be answered.
The ultimate solution to this problem is new legislation allowing for the defence of diminished responsibility. That legislation has been promised for almost two decades and all Governments during the past two decades must take some share of responsibility for that fact. Such legislation would enable the State to contain dangerous convicted criminals within the prison system rather than in mental hospitals at the State's pleasure. It would avoid the potentially lethal consequences of these people "recovering" at the whim of some psychiatrist. Such legislation must be introduced as an urgent priority as its introduction would enable us to sleep easier.
