The Criminal Law (Insanity) Act 2006 and

the Mental Health (Criminal Law) Review

Board

Darius Whelan

ICBA, Cork

May 2009

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Outline

Right to Liberty under the Constitution Right to Liberty under European Convention Criminal Law (Insanity) Act 2006 J.B. Case (2008) Heads of amending Bill, 2008

Liberty under Constitution

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Preventative Detention not permitted (e.g. Bail cases)

In insanity cases pre-2006, release was up to executive

Application of Gallagher (1991)

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Decision of executive pre-2006 was subject to judicial review

Personality disorder could be sufficient to continue detention Application of Gallagher (No.2) (1996) The task was to determine whether by reason of

mental ill-health the person currently constituted such a risk to public or to self that he/she should be detained

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Laffoy J: Trial of Lunatics Act 1883 did not permit detention

while a person was dangerous but not mentally ill This would be preventative detention, which is

unconstitutional

Liberty under European Convention

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Article 5 ECHR

Right to liberty. Detention only in accordance with procedure prescribed by law.

Exception: lawful detention of person of unsound mind art.5(1)(e)

Right to information on “arrest” art.5(2) Right to take proceedings for decision on

lawfulness of detention art.5(4)

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Winterwerp (1979): Objective medical expertise Mental disorder must be serious enough Persistence of disorder

Litwa v Poland (2001) – Detention must be proportionate response

Reid v UK (2003) – Patient need not be “treatable”

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Johnson no longer suffering from mental disorder

Tribunal ordered conditional discharge to hostel accommodation

Deferred until accommodation found 3 ½ year delay ECHR found breach of Art. 5(1) £10,000 damages plus £25,000 legal costs

Johnson v UK (1999)

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Authority is entitled to exercise discretion in deciding whether it would be appropriate to order absolute discharge of person who is no longer suffering from mental disorder

Appropriate safeguards must be in place to ensure that any deferral of discharge is consonant with Article 5 and that discharge is not unreasonably delayed

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Bartlett and Sandland: Johnson case illustrates how court is strong on due process rights but weak on substantive issues

“An extraordinarily conservative reading of the phrase ‘person of unsound mind’ in Article 5.1(e).”

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Where court initially orders detention, judicial review is incorporated in that decision

Right to further judicial review arises later: Rocha v Portugal, 1996

Impartiality: X. v UK, 1981; D.N. v Switzerland, 2003

Criminal Law (Insanity) Act 2006

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Many positive elements in Act

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S.4(6): In fitness for trial cases, can be 14-day detention for assessment (but no need for psych. report for this detention) Possible breach art.5

Court may order out-patient treatment in unfitness for trial cases, but not in “insanity” cases Possible breach art. 5

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Mental Health (Criminal Law) Review Board

MHCLRB must be independent, have regard to patients’ welfare & safety and have regard to public interest

Number of members set by Minister Minister appoints members Members must include one psychiatrist

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MHCLRB must review detentions at least every six months

Human Rights Commission suggested 3 months (art.5 issues)

MHCLRB assigns legal representative to patient

Legal aid scheme

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Impartiality issues? IHRC 2008: More transparent appointments

process recommended Procedure of MHCLRB set by Board with consent

of Minister IHRC criticised Ministerial “veto” (art. 5 – meaning

of ‘court’) Also consider removing s.12(6)(e) allowing

Minister or DPP to be represented at sittings of MHCLRB

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No statutory right to information (art.5 (2) ) Lack of clarity re personality disorders (art. 5) Burden of proof should not be placed on

patient (art. 5)

J.B. Case

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J.B. v Mental Health (Criminal Law) Review Board [2008] I.E.H.C. 303

2002: J.B. was found guilty but insane Case had been reviewed a number of times

by the MHCLRB. On temporary release (s.14); lived with his

family four nights a week, spending other three in hostel on grounds of CMH.

Employed as a warehouse operative

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2007: MHCLRB found he was “no longer suffering from a mental disorder”

The review board and the medical team treating him would only release him with conditions attached. He would be happy to abide by such conditions.

The board argued it was entitled to refuse to discharge the applicant on the grounds that the conditions could not be enforced.

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While Hanna J. had been invited to interpret the Act purposefully in order to infer some sort of enforcement regime into the Act, he held that would amount to legislating and would offend the principle of separation of powers.

No mention of preventative detention issues No mention of finding in Gallagher (No.2) that

detention can only continue on grounds of mental ill-health and risk

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ECHR arguments: Hanna J. follows Johnson v UK Also notes this case differed from Johnson, in that

the applicant here was living under very different conditions, spending majority of his time with his family.

Applicant has been afforded significant measure of liberty

His current state did not offend against the ECHR. No consideration of delay aspect of Johnson v UK

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Scheme of Bill

Irish Human Rights Commission, Observations on the Scheme of the Criminal Law (Insanity) Act 2006 (Amendment) Bill 2008 (2008)

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If Bill passed: Conditions may be attached by MHCLRB If conditions breached, patient is unlawfully at

large; may be arrested IHRC:

Conditions should be reasonable, proportionate and within power of person to fulfil

MHCLRB should be able to review conditions on above grounds

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Also in Bill

Fitness for trial – new requirement of medical evidence before court orders 14-day detention for psychiatric examination under s.4(6)(a) IHRC: Should be evidence of consultant

psychiatrist

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d.whelan@ucc.ie