The Criminal Law (Insanity) Act 2006 and the Mental Health (Criminal Law) Review Board (2009)


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The Criminal Law (Insanity) Act 2006 and the Mental Health (Criminal Law) Review Board. A talk from 2009. Since then, the law has been changed by the Criminal Law (Insanity) Act 2010.

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The Criminal Law (Insanity) Act 2006 and the Mental Health (Criminal Law) Review Board (2009)

  1. 1. The Criminal Law(Insanity) Act 2006 and the Mental Health(Criminal Law) Review Board Darius Whelan ICBA, Cork May 2009
  2. 2. 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 2
  3. 3. Liberty underConstitution
  4. 4.  Preventative Detention not permitted (e.g. Bail cases) In insanity cases pre-2006, release was up to executive Application of Gallagher (1991) 4
  5. 5.  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 5
  6. 6.  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 6
  7. 7. Liberty underEuropean Convention
  8. 8. 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) 8
  9. 9.  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” 9
  10. 10. Johnson v UK (1999) 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 10
  11. 11.  Authorityis 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 11
  12. 12.  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).” 12
  13. 13.  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 13
  14. 14. Criminal Law(Insanity) Act 2006
  15. 15. Many positive elements in Act 15
  16. 16.  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 16
  17. 17. 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 17
  18. 18.  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 18
  19. 19.  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 19
  20. 20.  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) 20
  21. 21. J.B. Case
  22. 22. 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 23
  23. 23.  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. 24
  24. 24.  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 25
  25. 25.  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 26
  26. 26. Scheme of Bill Irish Human Rights Commission, Observations on the Scheme of the Criminal Law (Insanity) Act 2006 (Amendment) Bill 2008 (2008) 27
  27. 27.  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 28
  28. 28. Also in Bill Fitnessfor 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 29
  29. 29. 30