Many of the provisions of the Criminal Law (Insanity) Act, 006 were crafted specifically with the requirements of Article the European Convention in mind

(b) The 1996 Act and the principle of periodic review

Perhaps the key area where the Act shows the imprint of the Convention is the establishment of a new body known as the Mental Health (Criminal Law) Review Board (sections 11, 12, 13 in particular together with Schedule 1). This is an independent body, currently chaired by McCracken J., with the power to review the detention of a person detained in a ‘designated centre’. Key to the operation of this body are the following features;
(a) its independence;
(b) that it has the power to make an order ‘whether for his further detention, care or treatment in a designated centre or for his or her discharge whether unconditionally or subject to conditions for out-patient treatment or supervision or both’; and
(c ) that detention is at fixed intervals of not less than 6 months, and there are additional mechanisms whereby the person’s detention may come under review of the Board.
These features all reflect clear Convention requirements concerning the nature of a review body which satisfy the meaning of ‘court’ for Article 5(4) purposes, as well as the frequency of the review required.

( c ) The 1996 Act and the requirement of expert evidence

The Convention requires a finding of mental illness to be grounded on expert evidence. In practice, trials in which insanity is raised invariably proceed on the basis of two experts, both prosecution and defence psychiatrists, even when they are in agreement with each other. Section 5 of the Act, which deals with the insanity verdict, refers to ‘evidence relating to the mental condition of the accused given by a consultant psychiatrist’, thus eschewing a formal requirement for the opinion of two experts. I can find no reference in the Act to expert evidence on the issue of fitness to plead, until it comes to the question of detention in a mental hospital following a finding of unfitness to plead. Perhaps this reflects the fact the Convention’s principles apply to the detention of persons of unsound mind (Article 5 concerns liberty), and not other aspects of the law relating to such persons.

(d) Section 4(6) 1996 Act and short-term detention for assessment

A point that may arise in the future is the compatibility of Section 4(6) of the Act with the Convention, which deals with short-term remands to a mental hospital for the purposes of assessment. Without going into unnecessary detail in this paper, it may be said that because Section 4(6) does not explicitly incorporate Convention-compliant principles, there is arguably a danger that a court, interpreting the section literally, might violate those principles. However, it is possible to interpret the sub-section in a manner compatible with the Convention principles, and, of course, such an approach is required under section 2 of the European Convention on Human Rights Act, 2003. I would suggest that that a Convention-complaint interpretation is that a judge may use the Section 4(6) short-term remand power if, but only if:
(a) the court wishes to determine whether or not to exercise the longer-term committal power in Section 4(3) or 4(5)

AND
(a) there is sufficient medical evidence already before the Court to satisfy the Court that the person is suffering from a mental disorder within the meaning of the 2001 Act (i.e. that he, inter alia, poses a threat to himself or others) and that [it is likely] that the person is in need of in-patient treatment;

OR

(b) there is sufficient evidence before the Court of the accused’s behaviour to satisfy the Court that the person is suffering from a mental disorder within the meaning of the 2001 Act (i.e. that he, inter alia, poses a threat to himself or other) and that [it is likely] that the person is in need of in-patient treatment.

It should be noted that the words in square brackets above are a suggested standard; but it may be thought preferable to have a slightly lower or higher test. It would seem sensible, in any event, to have a lower standard than that employed for the longer-term committal in Section 4(3) and 4(5) (‘…is in need of in patient care or treatment’…), as this stage concerns merely the short-term assessment committal.
How the courts will operate this provision remains to be seen.

(e) Other difficulties

Other difficulties, perhaps of a temporary nature, also remain. One is the absence on the ground of psychiatric facilities appropriate to persons still in need of treatment or supervision, but not requiring the closed nature of a centre such as the Central Mental Hospital. I am involved in one case where the detainee is challenging the failure to release him on the ground that the evidence no longer supports his detention in the Central Mental Hospital but rather treatment in a supportive but not enclosed environment. Problems in locating suitable alternative accommodation for a person in such a situation featured in the case of Johnson v. United Kingdom (1999) 27 EHRR 296. The Court made it clear that while the national authorities must be given a certain latitude in assessing the risk posed by such a person, once a decision had been reached that release on condition that the person reside in a hostel was made, the onus was on the authorities to ensure that such a hostel place was available. In that case, it was held that a delay of four years in his release, primarily because of the non-availability of alternative accommodation, constituted a breach of Article 5(1). Further, it may be noted that it was not until very recently that Part 2 of the Mental Health Act, 2001 was brought into force and, again, I am involved in a case where the essence of the complaint was that the State had failed to implement the undertaking given to the ECHR in Croke v. Ireland.

3. The Convention, Preventive Detention and the Mandatory Life Sentence for Murder in Ireland

The second area I wish to discuss is that relating to the mandatory life sentence for murder. This is an area where there is considerable ECHR case-law condemning the operation of life sentences in the UK. There is also a domestic report of the Human Rights Commission suggesting there is need for reform of Irish law to bring into line with European requirements. To date, the State authorities have chosen to leave current arrangements in place and to defend the proceedings brought. Is this merely a matter of the political sensitivity of the mandatory life sentence of murder? Or is there, legally, more to this than meets the eye? Given my involvement in these cases, I will not seek to comment on the interaction between Irish law and Convention law, but rather set out the manner in which this issue has come to the fore and the arguments that will have to be addressed in this litigation.

As we have seen regarding the detention of persons of ‘unsound mind’, Article 5(4) of the Convention imposes exacting standards of regular review to ensure that the rationale for continuing detention continues to apply, in the sense that continued detention continues to be justified by the psychiatric and/or psychological evidence. Article 5(4) imposes the same requirements in respect of any detention that is based upon a rationale that is susceptible to change and therefore in need of review. So, although Article 5(4) usually does not apply to sentences in respect of criminal offences, it can come into play if detention connected with a criminal offence is, or becomes, based on a preventive detention rationale. This explains the result in a number of important ECHR cases in which domestic UK arrangements concerning various kinds of life sentence were held to be incompatible with Article 5(4) of the Convention. The ECHR has, in addition, interpreted Article 6 to strike down the power previously held by the UK Executive of setting the tariff in life sentence cases. This is essentially on a ‘separation of powers’ type ground, namely that the setting of the tariff is an aspect of the sentencing exercise which can only be carried out by the judicial power.
An important question arises, therefore, as to whether any of these cases apply to the Irish life sentence, particularly the mandatory life sentence for murder. The Convention authorities are set out below by way of background to the Irish litigation pending.