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.

1. The Criminal Law
(Insanity) Act 2006 and
the Mental Health
(Criminal Law) Review
Board
Darius Whelan
ICBA, Cork
May 2009

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
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3. Liberty under
Constitution

4.  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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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
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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
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7. Liberty under
European Convention

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)
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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”
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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
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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
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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).”
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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
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14. Criminal Law
(Insanity) Act 2006

15. Many positive elements in Act
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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
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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
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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
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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
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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)
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21. J.B. Case

23. 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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24.  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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25.  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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26.  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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27. 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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28.  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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29. 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
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30. d.whelan@ucc.ie
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