The person referred to failed to return to the Central Mental Hospital on 15 July 2000 from a period of temporary release granted as part of a programme of phased releases as recommended by an expert advisory committee to which I shall refer later. As is normal practice in all cases where a person fails to return on time from a period of temporary release, he was deemed to be unlawfully at large and the Garda was informed and asked to search for and return him to the Central Mental Hospital. It, in turn, sought the assistance of the police authorities in other jurisdictions, including the United Kingdom, where he was apprehended shortly afterwards.
However, he was subsequently released by the UK authorities following an examination by psychiatrists who found that he did not suffer from a psychiatric condition warranting his detention under English law. He could not, therefore, be returned to this jurisdiction as the relevant legislation, Backing of Warrants (Republic of Ireland) Act, 1965, allows only for warrants for accused or convicted persons to be executed and the person concerned did not fall into this category. In this jurisdiction his failure to return from temporary release is a summary offence of being unlawfully at large for which there is no legislative provision to extradite from another country. In this regard, the Deputy will be aware that in February 1991 the Supreme Court found that the "guilty but insane" verdict is, in effect, a special verdict of acquittal but that the statute which permits the special verdict, the Trial of Lunatics Act, 1883, requires that the former accused be detained until such time as the Executive is satisfied that, having regard to the mental health of the accused it is, for both public and private considerations, safe to release him. The court also ruled that a person found not guilty by reason of insanity may apply to the Executive, in the person of the Government or the Minister for Justice, Equality and Law Reform, for his release on the grounds that he is no longer suffering from a mental disorder warranting his continued detention in the public or private interest. The Executive must then inquire into all the circumstances using fair and constitutional procedures. To enable the Minister to carry out this function, an advisory committee procedure, comprising a senior counsel, consultant psychiatrist and general practitioner, was established to review these applications.
This person's detention had, since 1991, been reviewed on no fewer than six occasions by independent advisory committees, each consisting of a senior counsel, consultant psychiatrist and general practitioner chosen for their expertise and knowledge in this area. An advisory committee had last reviewed his case in May 1999 following which a revised parole programme incorporating a phased increase in work parole, group outings and both accompanied and unaccompanied outings was put in place. This programme, in accordance with its recommendations, was designed to provide objective evidence as to whether the person concerned continued to be a risk by reason of his continued mental disorder and was kept under continuous review.
Additional Information
Since the failure of this person to return to the Central Mental Hospital, my Department has consulted with the hospital authorities to review each of the cases of the persons in the guilty but insane category who have or may be granted temporary release from the hospital. While there are no watertight guarantees, I am satisfied the level of risk that another such person might not return from a temporary release is minimal. The Deputy will undoubtedly be aware that such periods of temporary release are granted from time to time for rehabilitation and humanitarian purposes either on foot of recommendations under the advisory committee procedure or as a result of periodic reviews undertaken by the Central Mental Hospital authorities. All such releases carry an element of risk which cannot be avoided if the State is to properly manage their cases. I assure the Deputy that my Department seeks to ensure at all times that any such releases are consistently monitored and kept under continuous review.
There are no arrangements in place between this jurisdiction and others for the compulsory repatriation of persons in the circumstances described. The problem is not unique to this country and while there are no specific proposals at EU level at present, the matter has recently been receiving attention at the Council of Europe. The committee of experts on the operation of European conventions in the penal field has recently discussed the desirability of making arrangements under which mentally disturbed offenders who are not convicted because of their mental disorder but require detention because they may be dangerous as a result of their disorder could be returned to their country of origin. My Department is represented on this committee and I have instructed my officials to press for a satisfactory resolution of the matter which we are discussing.
I will publish shortly a comprehensive restatement of the law on criminal insanity. That legislation will contain extensive provisions dealing with fitness to plead at a criminal trial; it will contain a definition of criminal insanity and provide for a new verdict of "not guilty by reason of insanity" to replace the present "guilty but insane" verdict; and it will introduce a new plea of "guilty but with diminished responsibility" in cases of murder. In addition, it will establish a new review body whose function will be to review the cases of persons detained after verdicts of not guilty by reason of insanity or findings of unfitness to plead. The introduction of the new partial defence of diminished responsibility is likely to have the same effect as it had in England, that is, it will result in a decrease in the numbers of pleas of insanity, the accused preferring to plead diminished responsibility. If a plea of insanity is made and the prosecution feels a plea of diminished responsibility is more appropriate it can so argue before the court and the court will decide the matter. A person found guilty but with diminished responsibility will be convicted of manslaughter, not murder, and be liable to a term of imprisonment, at the discretion of the judge, of up to life imprisonment.
