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

Convention standards as regards detention of persons of ‘unsound mind’

The relevant Convention provisions are Article 5(1)(e) which permits deprivation of liberty in respect of ‘persons of unsound mind’, and Article 5(4) which provides for procedures whereby the lawfulness of detention may be regularly reviewed. The seminal case in respect of Article 5(1)(e) is the Winterwerp case (1979-80) 2 EHRR 387. The applicant had been brought to a police station on suspicion of having stolen documents and was found naked in a police cell some time later. This triggered a committal to a mental hospital which lasted six weeks under an ‘emergency’ provision before his detention was formally examined. Against this backdrop, the Court, as is well known, set out the governing principles in the area of detention pursuant to Article 5(1)(e) and the detention of persons of ‘unsound mind’;

(1) The presence of ‘unsound mind’ must be determined by objective medical evidence;

(2) The mental illness must result in a condition making detention necessary for the protection of the patient or others; and

(3) The mental condition must persist throughout the period of confinement.
The Court did, however, also say ‘emergency situations’ could justify confinement without medical evidence. In that particular case, the Court said that six weeks was at the outer limit of what could be justified as an emergency. This might be thought to confer a wide degree of latitude to legislating authorities regarding the initial stages of detention. In X v. United Kingdom (1981) 4 EHRR 188, the applicant, who had been a patient at Broadmoor special hospital had been released provisionally. After three years, he was recalled on the basis of a report by his wife that he was likely to be violent as a result of his mental state. The Court again justified the manner of the recall on the basis of an emergency, in this case arising in part from the patient’s history of dangerousness to the public which was based on medical evidence. However, in Varbanov v. Bulgaria (App.31354/6) Judgment 5 Oct 2000, the applicant was committed for 20 days to psychiatric hospital without any medical evidence or any suggestion of violence on his part. The Court held that there was a breach of Article 5(1)(e).
In addition to the three Winterwerp criteria generated by Article 5(1)(e), the Court has held that Article 5(4) is of importance to detention on grounds of mental illness. In E v. Norway (1990) 17 EHRR 30, it was held that the decision-making body must be legally empowered to conduct a review which is wide enough to bear on all of the conditions which are essential to the lawfulness of the detention. In X v. United Kingdom (1981) 4 EHRR188, a mental health review tribunal did not qualify as a ‘court’ for Article 5(4) purposes because it was limited to making advisory recommendations to the Home Secretary, but had no actual power of release. Further, it was held that habeas corpus proceedings were inadequate in this regard because they did not enable a challenge on medical grounds to detention on medical grounds.

Differences between the Constitutional and Convention standards

One of the immediately obvious differences between the Convention and Constitutional principles as regards detention of persons following an insanity verdict concerns the nature of the person or body who may review and release the detainee. Convention law requires that such a body be a ‘court’ within the meaning of Article 5(4), and therefore independent and impartial and with the power to release. This excludes a person directly involved in the political process, such as the Minister for Justice, from making the ultimate decision as to release. Irish law, as we have seen in the Gallagher case, did not have any difficulty with the ultimate decision being made by the Minister, although it was stated that constitutional fair procedures would be required in reaching that decision. Thus it would seem that Convention law adds an extra layer of human rights protection by removing the decision concerning the release of a detainee further away from the political arena.

As regards one of the key Convention principles, namely the requirement that the continued detention must at all times be justified by reference to the underlying rationale of protecting the public, it would appear that this requirement was articulated by the High Court in the Gallagher as a Constitutional requirement also. It would seem to follow logically, therefore, that a similar rationale would be required for the commencement of the detention also, although this does not seem to have been put to the test in Ireland. Nonetheless, it seems likely that if a Court were asked in the future to pronounce on any statutory provision concerning insanity or fitness to plead, it might well confirm that the Constitutional standards in this regard are not dissimilar to those of the Convention.
An interesting question is whether the content of the procedural standards is higher under the Convention than under constitutional law i.e. the procedures surrounding the application for, and decision on, continued detention in a mental hospital.
It is matter of some curiosity, nonetheless, that significant changes in the law on insanity appears to have been precipitated by the incorporation of the Convention into domestic law, rather than by any interpretation of the Constitution, which in most respects (the role of the Minister in the system being the exception), appears likely to have yielded similar principles.

The key features of the 1996 Act

(a) Ensuring there is a necessity for detention before detention is imposed

An important theme in the Criminal Law (Insanity) Act, 2006 is to ensure that only those who require detention are actually subjected to detention. Unfortunately, however, the manner in which this is done in the Act is quite cumbersome and far from transparent. One almost has to know it is there in order to find it. The Act employs two definitions of ‘mental disorder’ in order to distinguish between those suffering mental illness who do not require detention and those suffering mental illness who do require detention. The mechanism by which the two categories are distinguished from each other is as follows. The first category of persons is captured in the concept of ‘mental disorder’ simpliciter as provided for in the definition section of the Act, section 1, which defines ‘mental disorder’ as ‘mental illness, mental disability, dementia or any disease of the mind but does not include intoxication’. The second category of persons (i.e. those requiring detention) is captured by the Act’s use of the phrase ‘mental disorder within the meaning of the Act of 2001’. The Mental Health Act 2001 defines ‘mental disorder’ as:

mental illness, severe dementia or significant intellectual disability where—

(a) because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or

(b) (i) because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and

(ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.
The differences between ‘mental disorder’ simpliciter and ‘mental disorder within the meaning of the 2001 Act’ should therefore be noted. The latter category refers to those who may cause ‘immediate and serious harm’ to himself or to other persons; and for whom (if I may condense the longer description) treatment in an approved would be ‘useful’.

Not guilty by reason of insanity and detention
The consequences of this distinction between categories of ‘mental disorder’ used in the Act can be seen in relation to the ‘not guilty by reason of insanity’ verdict pursuant to section 5 of the Act. The special verdict, now entitled ‘not guilty by reason of insanity’ should be returned where the accused falls within the criteria of insanity set out in Section 5(1). However, it is only if the person satisfies additional criteria that the Court may commit the person to a mental hospital pursuant to Section 5(2); namely, that the person is suffering from a mental disorder within the meaning of the Act of 2001 and is in need of in-patient care or treatment in a designated centre. (Indeed it is curious that the second limb (‘..and is in need of in-patient care or treatment…’) was thought necessary, given the Mental Health Act 2001 definition effectively already incorporates this requirement, as seen above).
This is a significant departure from the previous law where such detention was automatic following the insanity verdict. The idea behind this change was to ensure that only those requiring detention at the time of the verdict would be detained. It should be borne in mind, in this regard, that it is possible that a person might, for example, (a) have been suffering from a mental illness at the time of the offence, but is no longer suffering from the illness now; or (b) continues to suffer from a mental illness which absolves him from criminal responsibility but which does not warrant confinement in a mental hospital according to the ECHR criteria.
Unfitness to plead and detention
The distinction between the two categories of person suffering from mental disorder is similarly reflected in the fitness to plead provisions. Accordingly, when a decision has been reached that an accused is unfit to plead, whether by the District Court or a higher court, the accused may only be committed to a designated centre for in-patient treatment if he is suffering from a ‘mental disorder within the meaning of the 2001 Act’. There is also an intermediate position, which is that the court may make an order for out-patient treatment if he is suffering from a ‘mental disorder within the meaning of the 2001 Act’. However, if he is merely suffering from a ‘mental disorder’ simpliciter, no order may be made other than the adjournment of the proceedings. This, unfortunately, is not explicitly stated but is implicit from the totality of the provisions, which are as follows:

• 
  District Court power to adjourn proceedings and commit to hospital for in-patient treatment upon finding of unfitness to plead and that person has mental disorder within meaning of 2001 Act and that he is in need of in –patient care or treatment in a designated centre: Section 4(3)(b)(i).
  

• 
  District Court power to adjourn proceedings and make order for out-patient treatment upon finding of unfitness to plead and that person has mental disorder within meaning of 2001 Act and that he is in need of out-patient care in a designated centre: Section 4(3)(b).
  

• 
  District Court and other cases of unfitness to plead: there is no specific provision and so only Section 4(3)(b) applies i.e. the Court may adjourn the proceedings but make no other order.
  

• 
  Court of trial power to adjourn proceedings and commit to hospital for in-patient treatment upon finding of unfitness to plead and that person has mental disorder within meaning of 2001 Act and that he is in need of in-patient care or treatment in a designated centre: Section 4(5)(c ) (i).
  

• 
  Court of trial power to adjourn proceedings and make order for out-patient treatment upon finding of unfitness to plead and that person has mental disorder within meaning of 2001 Act and that he is in need of out-patient care of treatment: Section 4(5)(c )(ii)
  

• 
  Court of trial and other cases of unfitness to plead; there is no specific provision and so only Section 4(5)(c ) applies i.e. the Court may adjourn the proceedings but make no other order.
  

It is clear, therefore, that, as with the guilty but insane verdict, the intention was to ensure that no person would be committed on a long-term basis to a mental hospital unless such detention was necessary; and, under the scheme of the Act, such detention can only be necessary when the person poses a danger to himself or others and in-patient treatment would be useful.

It is a pity that the statutory provisions implementing such a clear principle should be so cumbersome and opaque.