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Cite as: [2006] 2 ILRM 182, [2006] IESC 25, [2006] 3 IR 188

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Judgment Title: DPP -v- Redmond

Neutral Citation: [2006] IESC 25

Supreme Court Record Number: 160/04

Circuit Court Record Number: MO 0006/03

Date of Delivery: 06/04/2006

Court: Supreme Court

Composition of Court: Denham J., Geoghegan J., Fennelly J., Kearns J., Macken J.

Judgment by: Geoghegan J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Geoghegan J..	Other (see notes)	Macken J.*
Fennelly J..	Other (see notes)	Macken J.*
Kearns J..	Other (see notes)	Macken J.*
Denham J.	Other (see notes)

Notes on Memo: Result: Answer question as in judgment of Geoghegan, J. Fennelly, J. and
Kearns, J. also agree with answer in judgment of Geoghegan, J. Macken, J.
concurs with answer as set out in
Judgment of Geoghegan, J. and with conclusions of Geoghegan, J., Fennelly, J.
and Kearns, J. Denham J. answers question posed in the affirmative.

- 11 -

THE SUPREME COURT
160/2004

Denham J.
Geoghegan J.
Fennelly J.
Kearns J.
Macken J.

IN THE MATTER OF SECTION 16 OF
THE COURTS OF JUSTICE ACT, 1947

IN THE MATTER OF A CONSULTATIVE CASE
STATED FROM WESTERN CIRCUIT, COUNTY
OF MAYO

IN THE MATTER OF A CRIMINAL PROSECUTION ENTITLED:-

AN POBAL AN AGRA AN STIURTHEORA IONCHUISEAMH
POIBLI

THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

v.

SEAN REDMOND

Accused

JUDGMENT of Mr. Justice Geoghegan delivered the 6th day of April 2006

This is a consultative Case Stated sent forward to this court by His Honour Judge Kevin Haugh, S.C. (as he then was) sitting in Castlebar Circuit Court as trial judge in an indictable prosecution for causing serious harm contrary to section 4(1) of the Non-Fatal Offences against the Person Act, 1997. Since the signing of the Case Stated, Judge Haugh has been appointed a judge of the High Court. Under the relevant statutory provisions however the President of the High Court, the President of the Circuit Court and Haugh J. (as he now is) have all agreed that Haugh J. should complete this case as a judge of the Circuit Court.

I think it important to set out the Case Stated in full. It reads as follows:

“Case Stated

1. On the 1st July 2003 the above named accused was before Castlebar Circuit Criminal Court [sitting at the courthouse in Westport] on a count of causing serious harm contrary to section 4(1) of the Non-Fatal Offences against the Person Act, 1997. The particulars of the offence alleged that the accused did on the 20th November, 2002 at Castlebar in the county of Mayo intentionally or recklessly cause serious harm to one Liam Humbar.

2. Defence counsel (John F. Kiely B.L., instructed by Aidan Crowley, solicitor of Egan, Daughter and Company, solicitors, Castlebar, Co. Mayo) applied to the court for a jury to be empanelled to determine the issue as to whether or not the accused was fit to plead. This application was later withdrawn.

3. When arraigned before Castlebar Circuit Criminal Court (sitting at the courthouse in Westport) on the 1st July 2003 before Judge Harvey Kenny B.L., the accused pleaded guilty to the above count. The matter was then adjourned to the following term for sentence. The accused was in custody on the charge and was remanded in custody.

4. The matter was listed before me at Castlebar Circuit Criminal Court (sitting at the courthouse in Westport) on the 9th day of December 2003 and I fixed the 13th day of December 2003 for the sentence hearing.

5. On the 12th day of December 2003 Detective Garda R.J. Lawlor gave evidence before me in relation to the offence and the background circumstances.

6. The facts are briefly as follows:-

Around 9.30 a.m. on the 20th November 2002 the accused attacked the victim with a knife and caused him serious injuries. The attack was an unprovoked attack in the vicinity of St. Mary’s Psychiatric Hospital in Castlebar and was witnessed by a number of individuals. The accused has a psychiatric history and was attending the hospital on the morning in question for an appointment with his psychiatrist, Dr. John Connolly. The victim was an in-patient of St. Mary’s Psychiatric Hospital. Following the stabbing the accused went into an office in the psychiatric hospital. He told a person in the office that he had stabbed somebody and he told them where the knife was. No rational motive or discernible reason was established for the attack. The accused apparently told Dr. O’Rourke (psychiatrist) when examined on the day of the incident that he had heard voices telling him to

“get them”

and that his attack was in response to the voices.

7. By agreement with the prosecution the defence submitted a medical report dated the 26th day of March 2003 from Dr. Charles Smith (consultant psychiatrist in the Central Mental Hospital) and a medical report from Dr. Seamus Geraghty (consultant psychiatrist) dated the 29th November 2003 in evidence. The book of evidence contained a statement of evidence from Dr. John Connolly (consultant psychiatrist) and from Dr. D. O’Rourke (consultant psychiatrist). I read these medical reports and witness statements. A copy of each is attached hereto.

8. At this point in the proceedings I discussed with the defence counsel and prosecution counsel the fact that there was no defence of

“diminished responsibility”

in Irish law and I referred to the Supreme Court decision in

The People (DPP) v. O’Mahony

[1985] I.R. 517.

9. I enquired as to whether or not I had any jurisdiction to raise an issue in relation to the plea of guilty by the accused if, having considered the evidence, I had substantial grounds for believing that the accused may have been insane in law at the time of the commission of acts alleged to constitute the offence and in substitution to enter on his behalf a plea of

“not guilty”

10. The matter was then adjourned to the 18th day of December, 2003 so that counsel could consider the position and make further submissions. On the 18th day of December, 2003 defence counsel indicated to the court that he would in any event be seeking a case stated on this point. Prosecution counsel indicated that some further time was needed to obtain instructions from the DPP. The matter was further adjourned to the 13th day of January 2004.

11. On the 13th day of January 2004 defence counsel reiterated that he was seeking a consultative case stated. Prosecution counsel indicated that he was not opposing the application for a consultative case stated. The matter was further adjourned for mention to the 23/1/04.

12. In light of the evidence before me, I am of the opinion that there are substantial grounds for believing that the accused may have been insane in law at the time of the commission of the alleged offence and that a defence of

“not guilty”

may be a more appropriate plea than a plea of

“guilty”

. As I understand the law, it is that a person who is found not guilty by reason of insanity is deserving of treatment not punishment whereas a person who pleads guilty or who is found guilty is deserving of punishment. I am informed that the plea of the accused in this instance is motivated by practical considerations – i.e. he would prefer to have a definite sentence rather than a situation whereby he would be detained at the pleasure of the Government in the Central Mental Hospital.

13. Transcripts of the sentence hearings are attached hereto.

In these circumstances I require the assistance of the Supreme Court and answers to the following questions:-

Have I the power/duty or should I decline to act on a plea of guilty if, on the evidence before me, I am satisfied that I have substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the offence. Should I in those circumstances decline to accept a plea of guilty, enter a plea of

“not guilty”

on behalf of the accused and seek to ensure that the issue of his insanity is fully investigated in the course of his trial?”

It will be noted that the Case Stated annexes medical reports and the transcript of the sentencing hearing. Not only is this at first sight unorthodox but it would not usually be permitted. Even in the normal situation however, it is not a simple question of the court refusing to look at improperly annexed documentation. If the court considers that the Cast Stated itself might have been expanded in some way if the judge had realised that he should not have annexed the documentation, the Case Stated would be sent back for revision. There is no doubt that it has always been the law that a court answers the question from the Case Stated, though some annexed documents to indicate what is actually meant by the findings of fact are often permitted.

This case does not fall within any normal category. In fact I think that it is quite unique. The judge is sending forward a Case Stated on a question of whether he would be right or wrong in law in taking a particular step having regard not to particular facts found by him (which would be the normal case) but rather having regard to apprehensions on his part and a particular view of the law he is considering arising out of medical reports produced and dialogue between himself and counsel at the sentencing hearing. In this unusual situation the medical reports produced and the exchanges with counsel form the factual matrix on which the legal question arises. That is why, in my opinion, the learned judge annexed the reports and the transcript and I think that in the special circumstances and for the reasons which I have given it was appropriate that he should have done so. Both the reports and the discussion with counsel were freely referred to at the oral hearing of the Case Stated. I am quite satisfied that the court is entitled to have regard to them since they are the basis of the learned sentencing judge’s concerns.

It is not in contest (even though unfortunately it seems to be omitted from the Case Stated) that the accused when he pleaded guilty before Judge Harvey Kenny on the 1st July, 2003 was fit to plead. In considering how to answer the question posed by the learned trial judge in the Case Stated this is the most important fact to be taken into account.

Issues of insanity whether in the context of fitness to plead or in the context of the commission of the alleged offence are issues to be tried by juries and not by judges. The judge’s function is to explain to a jury what is meant by insanity in law which is not necessarily the same as what is meant by insanity in ordinary parlance and the jury then makes the findings. An accused who is fit to plead is perfectly entitled to be indignant at any suggestion that he was insane at the time of committing the alleged offence and to argue otherwise to a jury. I am not forgetting that there was a tactical motive in relation to the plea in this case and I will return to its relevance or lack of relevance later on in this judgment.

I intend to turn briefly to the law of insanity. I emphasize the word “briefly” because this Case Stated presents the court with a wholly unsuitable context in which to review the law of insanity whether by way of departing to some extent from the M’Naghten Rules or even interpreting them in the light of the occasional modern case such as Doyle v. Wicklow County Council [1974] I.R. 55.

There were reports before the court from four different psychiatrists, Dr. John Connolly, Dr. D. O’Rourke, Dr. Seamus Geraghty and the well-known former director of the Central Mental Hospital, Dr. Charles Smith. These psychiatrists but particularly Dr. Smith would be well versed in the traditional law of insanity. Their reports must be read in that light and cannot be treated as exclusively medical. The exercise of the psychiatrists is neatly summed up in the second last paragraph of Dr. Smith’s letter to Egan, Daughter and Company, solicitors, Castlebar, dated 26th March, 2003.

“We had to address obviously to the crucial factor of whether this man had a core psychiatric illness, which was activated by alcohol and street drug usage or whether his paranoid illness was introduced by substance and alcohol use. The latter illness is usually short-lived responding reasonably quickly to anti-psychotic medication. It is our view that his illness was drug or alcohol induced and that while possibly explaining the assault does not excuse or mitigate it. As I understand it he would be held responsible in law for the disorganisation that drugs and alcohol cause particularly with his experience of earlier similar events.”

It is clear that the learned trial judge read and considered the various reports but his view of the law is well illustrated by some of his interjections as appearing on the transcripts. In the transcript for the12th December, 2003, the learned judge made the following observation during a discussion with Mr. Kiely, counsel for the accused.

“… is there a difference between psychiatric illness and psychiatric condition that is brought on by substance abuse. If there is a difference, it seems to be based on a kind of judgmental attitude rather than the nature of the condition, and it would seem the nature of the condition is the matter which should be given concern, rather than the cause of a condition. I mean, should a person who is mentally incapacitated for reasons outside of their control be treated differently from people who may be said to be the author of their own misfortune because they happen to have indulged excessively in drink or some other substance?”

Mr. Kiely answered the judge’s question by suggesting that any element of diminished responsibility though not as such relevant to conviction in Irish law could be fully taken into account at the sentencing stage. The judge was unimpressed by this suggestion because he thought it was somewhat hypocritical that a court would ignore the diminished responsibility for the purposes of considering whether the offence was a criminal act but take it into account when determining sentence. As it happens, I do not agree with the learned judge in that view and I will return to it at a later stage. Keeping to the point at issue, the learned judge went on to observe to Mr. Kiely that Dr. Smith seemed to suggest that as the man was suffering from a mental condition brought on by drink and drugs that the law did not then excuse him from the consequences of his action. Later again the learned trial judge puts the position quite pithily. He observed -

“There are two difficulties in this case: (1) is whether he is insane or not and (2) what is the Irish law in relation to insanity brought on by substance abuse voluntarily undertaken.?

It was accepted that the Supreme Court in The People v. O’Mahony cited above had held that diminished responsibility was not a defence in Irish criminal law.

The most that the trial judge has been able to say in the Case Stated is that he is of opinion “that there are substantial grounds for believing that the accused may have been insane in law at the time of the commission of the alleged offence.” It is perfectly clear from the interjections as contained in the transcript that the judge did not mean by that that the accused was insane in law on foot of traditional interpretations of the M’Naghten Rules. If there was a case, where on a reading of the book of evidence it seemed certain that there would have to be a verdict of insanity, it may well be that a judge in similar circumstances to these could force a change of plea. I intend to leave that as an entirely open question because I do not believe it arises in this case and should not be decided in those circumstances. The legal position in this case would have been wholly uncertain and while, having regard to modern concepts of mental illness and indeed the points of principle mentioned by the judge, it is perfectly possible that a verdict of insanity would be legally appropriate, that is as far as can be said. The accused has decided to plead guilty in the ordinary way. Nobody is suggesting that he is not fit to plead nor is there any certainty or even near certainty that if the facts emerging from the book of evidence are true he would have been insane at the time of the offences in the legal sense. In these circumstances, I find it difficult to see how he can be forced to alter his plea. The only conceivable basis would be the fact that the judge apparently as a consequence of questioning, elicited from counsel for the accused that the plea was tactical in that the accused did not want to be sent to a mental hospital indefinitely rather than have a fixed short term prison sentence at most.

I have never heard of the motive of an accused for pleading in a particular way being investigated and it would be against all the principles of the criminal law if it could be done unless of course an issue of duress had arisen. But that issue would be raised by the accused himself. I am, of course, talking of “motive” in the strict sense. There have always been cases where a trial judge realises that, say, an unrepresented accused has, without the benefit of legal advice, pleaded guilty when he clearly has a good defence. That situation, however, bears no relationship to what has been suggested here.

One can imagine that Mr. Kiely would have advised the accused that there was a possibility of a finding of insanity but that having regard to the terms of the medical reports that might not be so. In fact, I think it fair to say that Mr. Kiely assumed it would not be so until the views of Haugh J. were expressed. An accused is entitled to have tactical reasons as to whether, for instance, he pleads guilty rather than not guilty and I do not think his motive should ever be examined. From the accused’s point of view the reason that he pleaded was a perfectly good one and I think that it would be harsh to accuse him of abusing the process of the court by doing so nor do I think that it in any way was an abuse of the process of the court.

I now turn to the question of sentencing. It has been suggested that given that there is no defence in Irish law of diminished responsibility the sentencing judge on the plea of guilty cannot take into account diminished responsibility. I would wholly reject this proposition. If, for instance, in the past a person who suffered from psychiatric condition of some kind but did not qualify to come within the rather narrow principles of the M’Naghten Rules was found guilty it could not have been the case, in my view, that the sentencing judge could not take into account whatever lessening of responsibility there may have been. A sentencing judge can take into account any factor at all whether physical or mental which might tend reasonably to either mitigate or aggravate a sentence. I, therefore, believe that the learned trial judge’s concerns in this regard are ill-founded.

One of the illogical aspects of the whole process of dealing with cases where the defence of insanity has been raised is that the relevant insanity is the insanity at the time the offence was committed. If there is a guilty but insane verdict, the accused has to be kept in detention for a period at least even if he was sound in mind at the time of the trial and was fit to plead. That is one side of the coin. On the other side, there is the problem that a sentencing judge who came to the conclusion that the person he was sentencing was in fact of unsound mind and was dangerous on that account could not order detention in the Central Mental Hospital. However, the entire law in this area is anomalous and requires reform and the court should not fashion any principles directly flowing from the anomaly. In the scenario which I have depicted, there would be methods under the civil law under which such a person could be certified and detained.

I do not consider that I should answer the precise question as put because as I have already indicated there may be other types of cases where the powers of the judge may be different. A general answer would be unwise. I would answer the question in the following manner:

“The particular grounds for leading the learned trial judge to believe that the accused was insane at the time he committed the acts alleged to constitute the offence do not empower the judge to decline to accept the plea of guilty.”

By way of postscript, I would refer to paragraph 19-61 in Professor Dermot Walsh’s book on Criminal Procedure. Referring to the fact that a verdict of guilty but insane is technically an acquittal he goes on to observe:

“In such a case the accused will be committed to the Central Mental Hospital where he will be kept in custody at the will and pleasure of the Government. Accordingly, it is highly unlikely that the accused will raise a defence of insanity in any case apart from murder. Even then it is rarely raised by the accused.”

Mr. Redmond would appear to be following the norm both in what he is doing and the motive for it.

JUDGMENT of MR JUSTICE FENNELLY delivered on the 6th day of April, 2006.

This is a Case Stated from His Honour Judge, now Mr Justice Haugh, when sitting in Westport as judge for the Castlebar Circuit Criminal Court.
The accused stood charged with one offence, namely that on 20th November 2002 at Castlebar he intentionally or maliciously caused harm to one Liam Humber contrary to section 4 of the Non-Fatal Offences Against the Person Act 1997.
The accused was arraigned on 1st July 2003 before His Honour Judge Kenny and pleaded guilty. The matter was adjourned for sentencing. The accused was remanded in custody. The matter came on before Judge Haugh in December 2003. The facts of the offence, as given in evidence were summarised in the Case Stated as follows:

"Around 9.30am on the 20th November, 2002 the accused attacked the victim with a knife and caused him serious injuries. The attach was an unprovoked attack in the vicinity of St Mary's Psychiatric Hospital in Castlebar and was witnessed by a number of individuals. The accused has a psychiatric history and was attending the hospital on the morning in question for an appointment with his Psychiatrist, Dr John Connolly. The victim was an in-patient of St Mary's Psychiatric Hospital. Following the stabbing the accused went into an office in the Psychiatric Hospital. He told a person in the office that he had stabbed somebody and he told them where the knife was. No rational motive or discernable reason was established for the attack. The accused apparently told Dr O'Rourke [Psychiatrist] when examined on the day of the incident that he had heard voices telling him to "get them" and that his attack was in response to the voices."

The case stated also records that certain psychiatric reports were, by agreement, placed before the court. The book of evidence contained reports in the form of statements of intended evidence from two other psychiatrists. Clearly, however, there was no hearing or determination as to what the mental state of the accused was, either at the time of the commission of the alleged offence or at the date of the various hearings in the Circuit Court.
The learned judge raised with counsel a question as to whether he had any jurisdiction “to raise an issue in relation to the plea of guilty by the accused if, having considered the evidence, [he] had substantial grounds for believing that the accused may have been insane at the time of commission of the acts alleged to constitute the offence and in substitution to enter on his behalf a plea of not guilty.”
Following adjournments and further consideration, counsel for the accused proposed and counsel for the prosecution did not oppose the judge stating a consultative case stated to this Court. The learned judge then expressed his position as follows:

"In light of the evidence before me, I am of the opinion that there are substantial grounds for believing that the accused may have been insane in law at the time of the commission of the alleged offence and that a defence plea of "not guilty" may be a more appropriate plea than a plea of guilty. As I understand the law, it is that a person who is found not guilty by reason of insanity is deserving of treatment not punishment whereas a person who pleads guilty or who is found guilty is deserving of punishment. I am informed that the plea of the accused in this instance is motivated by practical considerations - i.e. he would prefer to have a definite sentence rather than a situation whereby he would be detained at the pleasure of the government in the Central Mental Hospital."

The learned judge, in stating a case for his Court pursuant to section 16 of the Courts of Justice Act 1947, explained that he required the assistance of the Supreme Court and answers to the following question:

"Have I the power/duty or should I decline to act on a plea of guilty if, on the evidence before me, I am satisfied that I have substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the offence. Should I in those circumstances decline to accept a plea of guilty, enter a plea of "not guilty" on behalf of the accused and seek to ensure that the issue of his insanity is fully investigated in the course of his trial?"

Since he signed the Case Stated, the learned judge has been appointed to be a judge of the High Court. He has agreed, at the request of the Presidents of the Circuit Court and of the High Court, pursuant to section 6A of the Courts (Establishment and Constitution) Act, 1961, inserted by section 12 of the Courts and Court Officers Act, 2002, to complete the hearing of the case of the accused, following the completion of this case stated.
The point raise is a novel one. The researches of counsel have produced no authority for the proposition that a trial judge may reject a plea of guilty in the circumstances outlined.
Counsel for the accused, Ms Grainne McMorrow, Senior Counsel, submitted that the accused was entitled to plead guilty. She acknowledged that the accused had a significant psychiatric history and that he would have been entitled to raise the defence of insanity, but he does not wish to do so. She informed the Court that, although the defence had initially raised an issue of fitness to plead, there is now no outstanding issue on that point. In fact, the accused wishes to maintain his plea of guilty, because he wishes to have a definitive outcome, in the form of a sentence of the court.
Mr Maurice Gaffney, Senior Counsel, on behalf of the Director of Public Prosecutions (“the DPP”) accepted that an accused person is normally entitled to choose how he wishes to plead, but queried whether this is so in all cases. The learned judge had jurisdiction to refuse a plea of guilty. If he sentenced a person in the position of the accused, he would be sentencing a person who is in law innocent. He is entitled to protect the process of the law from abuse.
Mr George Bermingham, Senior Counsel, for the Attorney General supported the submissions of the DPP. The question in the case stated should be answered in the affirmative. While unwilling to go so far as suggesting that the plea of guilty by the accused amounted to an abuse of process, he did suggest that it might be “a deception and a sham.” The sentencing judge would be bound to take into account the psychiatric background of the accused and to conclude that he was less responsible for his acts than others might have been, but he had to start from the proposition that he was dealing with a self-confessed criminal. The difficulty for the Circuit Judge was that he was not actually satisfied of this fact.
There is no denying the real dilemma with which the learned judge which confronted the learned judge. There was, as recited in the statement of facts of the case, no “rational motive or discernible reason” for the attack. Nonetheless, a serious assault had been committed. The accused, according to his counsel, does not remember attacking the injured party, though he is recorded as telling someone in the office of the hospital that he had stabbed someone.
Yet, the sentencing difficulty is not what is now before the court. Nor is there any question as to the content of the rules regarding insanity, although the case stated refers to a discussion of the absence of a defence of “diminished responsibility” and the decision of this Court in People (Director of Public Prosecutions) v O’Mahony [1985] I.R. 517.
The key point is that insanity is a matter of defence. It is true that the Court of Criminal Appeal, in People(Attorney General) v Messitt [1972 I.R. 204 stated, per Kenny J, at page 213 that it is “the duty of the prosecution to give any evidence which they have on which the jury might reasonably come to the conclusion that the accused was insane.” This statement was made in the context of an acknowledgement that “the onus of establishing insanity……rests on the accused.” This proposition has been long established. The second of the M'Naghten Rules is that:

“Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved.”

It has always been the law that a person is presumed to be sane and responsible for his acts and, by corollary, that any person asserting the contrary must prove it. This matter is fully discussed in Criminal Liability by professor Finbarr McAuley and professor J. Paul McCutcheon, (Round Hall Sweet & Maxwell Dublin 2000 Chapter 14.15), where the authors state:

“It is clear from Rule 2 of the M’Naughten Rules that the judges intended to put the onus of proving insanity on the accused, and there is a long line of authority supporting this conclusion.”

It suffices to refer to the authority of the judgment of Kennedy C.J. for the Court of Criminal Appeal in Attorney General v O’Brien 1936 I.R. 263, at 270 to show that this statement is correct and has been applied by our courts. Counsel for the DPP has, however, referred to a dictum of Lord Denning, sitting in the House of Lords, in Bratty v Attorney General for Northern Ireland [1963 AC 386, at page 411:

“When it is asserted that the accused did an involuntary act in a state of automatism, the defence necessarily puts in issue the state of mind of the accused man: and thereupon it is open to the prosecution to show what his true state of mind was. The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than allow a dangerous person to be at large. The Trial of Lunatics Act, 1883, says that where "it is given in evidence" that the person was insane, the jury shall return a verdict of guilty but insane.”

Lord Denning was alone in expressing this view. The issue before the House of Lords was a defence of automatism, not insanity. The latter defence had been rejected by the jury at trial. Viscount Kilmuir. L.C., speaking for the majority, at page 402, mentioned that the Court of Appeal (in Northern Ireland) had treated the onus as “being on the defence to show on a preponderance of probability that the necessary constituents of the M'Naughten formula were present……,” though, in the circumstances of the case, he did not himself have to comment on that proposition.
I believe that it remains the law that the onus of proof of insanity rests on the defence.
I do not think it can be consistent with the foregoing proposition that a judge may substitute a plea of “not guilty” in a case such as the present. What would be the consequence of his doing so? The trial would have to proceed. The prosecution would have the burden of proving every element of the case against the accused, but he would be presumed to be sane. The burden of proving the contrary would rest on the accused. He is entitled to decide whether to raise the defence. Where he decides not to raise it and the facts are proved to the satisfaction of the jury beyond reasonable doubt, he will be convicted.
I believe that an accused person, who is sane at the time he makes the plea, is entitled to choose whether to raise the defence that he was not sane at the time he committed the criminal acts with which he is charged. It is important to make this qualification. If he appears not to be fit to plead, the prosecution has the right to raise the issue, in which it appears—it is not necessary to decide that in this case—have to prove it beyond reasonable doubt. This fact is a corrective to the fear that a grossly insane person can avoid the detention that is the consequence of a finding of insanity by pleading guilty.
Before concluding, I would observe, that the Court must not, at this stage, enter into considerations of sentencing. That will be a matter for the learned judge when he comes to impose sentence. It suffices to say that the accused, whatever weight the court decides to assign to his psychiatric history, will not be treated as an insane person, but as a person who has pleaded guilty to a criminal offence.
I have read in advance the judgment delivered today by Geoghegan J and agree that the question posed in the case stated should be answered as he proposes.

JUDGMENT of Mr. Justice Kearns delivered the 6th day of April, 2006

This is a consultative case stated by His Honour Judge Kevin Haugh, S.C. when sitting as a Circuit Court judge on the Western Circuit in the County of Mayo. Since stating the case on the 31st March, 2004, Judge Haugh was elevated to the High Court and will hereinafter be referred to as Haugh J. However, both the President of the High Court and the President of the Circuit Court agreed, pursuant to s.12 of the Courts and Courts Officers Act, 2001, to request Haugh J. to sit as a Circuit Court judge for the purpose of allowing this Court to respond to the questions raised. Haugh J. agreed to do so in consequence whereof this Court thereby acquired jurisdiction to deal with the matter.

The case stated recites that, on the 1st July, 2003, the above named accused was before Castlebar Circuit Criminal Court on a count of causing serious harm, contrary to s.4(1) of the Non-Fatal Offences Against the Person Act, 1997. The particulars of the offence alleged are that the accused did on the 20th November, 2002, at Castlebar in the County of Mayo intentionally or recklessly cause serious harm to one Liam Humber.

On the 1st July, 2003, the accused pleaded guilty before His Honour Judge Harvey Kenny S.C. to the above count. The matter was then adjourned to the following term for sentence. The accused was remanded in custody from that date and remains in custody up to the present time.

The matter came up for sentence before Haugh J. in Westport, Co. Mayo on the 12th December, 2003. On that date, Detective Garda R.J. Lawlor gave evidence to the court in relation to the offence and the background circumstances.

The facts are stated as follows in the case stated:- Around 9:30am on the 20th of November, 2002, the accused attacked the victim with a knife and caused him serious injuries. The attack was an unprovoked attack in the vicinity of St. Mary’s Psychiatric Hospital in Castlebar and was witnessed by a number of individuals. The accused has a psychiatric history and was attending the hospital on the morning in question for an appointment with his psychiatrist, Dr. John Connolly. The victim was an in-patient of St. Mary’s Psychiatric Hospital. Following the stabbing, the accused went into an office in the psychiatric hospital. He told a person in the office that he had stabbed somebody and he told them where the knife was. No rational motive or discernible reason was established for the attack. The accused apparently told Dr. O’Rourke, a psychiatrist, when examined on the day of the incident, that he had heard voices telling him to “get them” and that his attack was in response to the voices.

By agreement with the prosecution, the defence submitted a medical report dated the 26th March, 2003, from Dr. Charles Smith, consultant psychiatrist in the Central Mental Hospital and a medical report from Dr. Seamus Geraghty, consultant psychiatrist, dated the 29th November, 2003, in evidence. The Book of Evidence contained a statement of intended evidence from Dr. John Connolly, consultant psychiatrist and from Dr. D. O’Rourke, consultant psychiatrist. The case stated records that Haugh J. read these medical reports and witness statements.

Having done so, Haugh J. records as follows in the case stated:-

“

At this point in the proceedings I discussed with the defence counsel and prosecution counsel the fact that there was no defence of ‘diminished responsibility’ in Irish law and I referred to the Supreme Court decision in The People (D.P.P.) v. O’Mahony [1985] I.R. 517. I enquired as to whether or not I had any jurisdiction to raise an issue in relation to the plea of guilty by the accused if, having considered the evidence, I had substantial grounds for believing that the accused may have been insane in law at the time of the commission of acts alleged to constitute the offence and in substitution to enter on his behalf a plea of ‘not guilty’.

”

The matter was then adjourned to the 18th December, 2003, so that counsel could consider the position and make further submissions. On the 18th December, 2003, defence counsel indicated to the court that he would in any event be seeking a case stated on this point. Prosecution counsel indicated that some further time was needed to obtain instructions from the Director of Public Prosecutions. The matter was further adjourned until the 23rd January, 2004.

Haugh J. continues:-

“

In light of the evidence before me, I am of the opinion that there are substantial grounds for believing that the accused may have been insane in law at the time of the commission of the alleged offence and that a defence of ‘not guilty’ may be a more appropriate plea than a plea of ‘guilty’. As I understand the law, it is that a person who is found not guilty by reason of insanity is deserving of treatment, not punishment, whereas a person who pleads guilty or is found guilty is deserving of punishment. I am informed that the plea of the accused in this instance in motivated by practical consideration – i.e. he would prefer to have a definite sentence rather than a situation whereby he would be detained at the pleasure of the Government in the Central Mental Hospital. In these circumstances I require the assistance of the Supreme Court in answers to the following questions:-

Have I the power/duty or should I decline to act on a plea of guilty if, on the evidence before me, I am satisfied that I have substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the offence? Should I in those circumstances decline to accept a plea of guilty, enter a plea of ‘not guilty’ on behalf of the accused and seek to ensure that the issue of his insanity is fully investigated in the course of his trial?”

In the hearing before this Court, submissions were made both by counsel for the accused and by counsel for the prosecutor and the Attorney General. Common to all submissions was an acceptance that the accused was fit to plead in this case. Common also to the submissions was an acceptance by all parties that an issue as to insanity, while normally raised as a matter of defence, may also be raised by the prosecution in an appropriate case. It was also agreed that an accused person enjoys a presumption of sanity under the M’Naghten Rules and that the onus of proof of establishing insanity when it rests on the defence is to the standard of the balance of probabilities. It was further accepted however that the issue of possible insanity might be raised by a trial judge at any time during a trial (R v. Podola [1960] 1 Q.B. 325). In the ordinary course, an inquiry as to an accused persons sanity takes place before a jury empanelled specifically for that purpose and this would normally occur when the issue arises on arraignment.

It is quite clear that in the instant case Haugh J. was faced with a dilemma from the facts and more particularly from the psychiatric evidence which began to emerge in the hearing before him which suggested to him that the accused had not or could not have had the capacity to commit the crime with which he was charged. The learned Circuit Court judge was clearly conscious of the observations in the case of The People v. O’Mahony [1985] I.R. 517 at p.523 where Finlay C.J. stated:-

“

Under our law a person found not guilty by reason of insanity can only be detained so long as the court is satisfied that his mental condition persists in a form and to the extent that his detention in an appropriate institution is necessary for the protection of himself or of others. He is not, in the view of our law, a criminal nor has he been convicted of a crime. A person charged with murder, on the other hand, in our law, and convicted of manslaughter may be sentenced to a period of detention in prison whether long or short and must be released at the termination of that sentence. He is, of course, branded as a criminal.l

”

While it had been intimated by counsel that the accused wished to have “a number on his sentence”, Haugh J. clearly felt it would be inappropriate to treat as a criminal a person in respect of whom there were indications that he was not a criminal because he lacked the mental capacity at the time of the offence to be guilty of the particular wrongdoing.

In the hearing before this Court counsel for the accused accepted that a trial judge has an inherent jurisdiction to intervene to vacate a plea of guilty in certain circumstances, but submitted that those circumstances must be ‘grave and exceptional’. However, no Irish authority in support was cited nor does it appear that there is any such authority. Counsel was content to rely on the inherent jurisdiction of the court as the basis for the view offered. Counsel for the Director went further, stating that the trial judge had both the power and indeed the duty to intervene where the interests of justice and the best interests of the accused so demanded in any case or situation where it became apparent to the trial judge that there was a genuine issue as to the sanity of the accused. This, it was submitted, could arise at any stage of the trial procedure. Mr. Gaffney, counsel for the Director, argued strongly that a fair trial under Article 38 of the Constitution precluded the trial judge from accepting a guilty plea in circumstances where it was apparent that a ‘not guilty’ plea should be entered. Any other course would be tantamount to an abuse of process and contrary to the public interest, because a citizen should never be punished as a criminal where he is innocent of any crime.

Decision

The Trial of Lunatics Act, 1883, s.2(1) contains the following provision:-

“

Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid at the time when he did the act or made the omission.”

Subsection 2 of the said section provides:-

“

Where such special verdict is found, the Court shall order the accused to be kept in custody as a criminal lunatic, in such place and in such manner as the Court shall direct until the pleasure of the Lord Lieutenant shall be known…

”

“Lord Lieutenant” in the above is adapted to mean the Government or the Minister for Justice.

Thus, a person against whom such special verdict is found can lawfully be kept in a mental hospital such as the Central Mental Hospital in Dundrum. In the ordinary course, it is in his interest and in the interest of the public that he be kept there until he is no longer at risk and the public are no longer at risk that he or the public may suffer as a result of injuries inflicted by him in consequence of his mental condition.

Where insanity is raised as a plea in bar of trial, however, the question is whether the accused is insane at the time of trial. In this regard s. 2 of the Criminal Lunatics Act 1800 provides:-

“…if any person indicted [in Ireland] for any offence shall be insane, and shall upon arraignment be found so to be by a jury lawfully empanelled for that purpose, so that such person cannot be tried upon such indictment, or if upon the trial of any person so indicted such person shall appear to the jury charged with such indictment to be insane, it shall be lawful for the court before

whom any such person shall be brought to be arraigned or tried as aforesaid to direct such finding to be recorded, and thereupon to order such person to be kept in strict custody until [the pleasure of the Lord Lieutenant or other Chief Governor] shall be known…”

I mention these provisions at the outset to emphasise the distinction between the concept of “fitness to plead” and an issue as to insanity before a jury. The former involves an inquiry as a preliminary issue as to whether an accused is fit to stand trial. Although this form of inquiry is into the sanity or otherwise of the accused, it is not a trial and the questions to be addressed are not those addressed by the M’Naghten Rules, either in original form or as amended in this jurisdiction, but are rather those enunciated by O Dalaigh C.J. in State (Coughlan) v Minister for Justice (1968) 102 I.L.T.R.177 at 185:-

“…stated in general terms the test to be applied is, has the prisoner sufficient intellect to comprehend the course of the proceedings of the trial, so as to make a proper defence, to challenge a juror to whom he may wish to object, and to understand the details of the evidence.”

This formula effectively adopts and approves the test as expressed many years previously in R. v Pritchard (1836) 7 C. & P. 303 in relation to the issue of fitness to plead.

It is important to consider the implications from a citizen’s point of view of an intervention by a trial judge the effect of which is to override an ostensibly voluntary plea of guilty and to conduct instead an inquiry as to fitness to plead. To begin with, the intervention must be seen as necessarily raising for determination by a jury of the issue of fitness to plead, given that the decision of the accused can only be set aside on the basis that the accused may not have been so fit. It therefore follows that where such an intervention is made an inquiry directed to that issue must precede any other development in the case.

It must be borne in mind that an intervention to set aside the plea of an accused person has a number of very significant consequences. Firstly, such an intervention runs counter to an accused person’s right in the ordinary way to select his preferred line of defence. This seems to me to be an integral part of the right to a fair trial which is guaranteed by Article 38 of the Constitution. In this context I should say that I see nothing wrong or objectionable in a course of action whereby an accused person, adopting a pragmatic approach to an upcoming trial in consultation with his legal and medical advisers and on their advice, would weigh up the advantages of getting a reduced but finite sentence by pleading guilty instead of opting for a fully contested trial where the prosecution or the court might introduce an issue of insanity with its concomitant risk of indefinite confinement in a prison for the ‘criminally insane’ in the wake of any jury finding of insanity. This ‘balancing approach’ in most instances will be a practical, common sense course which in my opinion has much to commend it under the current legal regime and is an approach with which practitioners in this area of law will be familiar.

Secondly, it is important to bear in mind that a person found to be unfit is put in the same position as a person found ‘guilty but insane’ in that he is likely to be eligible for involuntary civil commitment to a mental hospital (See McAuley “Insanity, Psychiatry and Criminal Responsibility”, Round Hall Press 1993, p 134). That is a powerful disincentive for any accused to raise the issue of fitness as a plea in bar. Moreover in a case where the issue is raised by the judge it is far from clear where the onus of proof may lie.

Thirdly, an intervention of this nature by a judge has the potential, depending on the outcome of the inquiry, to deprive an accused who in a different case wants to plead ‘not guilty’ of the opportunity of being acquitted on foot of a substantive defence which might have been available if the trial had gone ahead.

Against this backdrop a judge would, in my view, require to be satisfied that very exceptional circumstances are demonstrated and a very high threshold met before he actively intervenes to ‘second guess’ the accused, his legal and/or medical advisers who opt to plead or conduct a defence in a particular way. As noted by Geoghegan J in his judgment herein an accused person may justifiably be extremely indignant that his decision to plead in a particular way is being superseded by an inquiry as to his sanity. In my opinion therefore, a judge should not intervene to set aside a guilty plea unless there are quite exceptional circumstances arising in the particular case.

The Case Stated has not been couched in any such extreme terms and therefore the considerations outlined above persuade me that the question raised in the Case Stated should be answered in the negative and in the manner suggested by Geoghegan J.

Judgment delivered on the 6th day of April, 2006 by Denham J.

1. This is a consultative case stated pursuant to s.16 of the Courts of Justice Act, 1947 from His Honour Judge Kevin Haugh S.C. (as he was then) who was sitting on a trial on indictment at Castlebar Circuit Criminal Court. Subsequently the trial judge has become a judge of the High Court. The President of the High Court and the President of the Circuit Court, pursuant to s. 12 of the Courts and Court Officers Act, 2002, requested Haugh J., who in turn agreed, to retain seisin of this case and to sit as a Circuit Court judge for the purpose of this case.
2. The question asked of this Court is:

“Have I the power/duty or should I decline to act on a plea of guilty if, on the evidence before me, I am satisfied that I have substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the offence. Should I in those circumstances decline to accept a plea of guilty, enter a plea of “not guilty” on behalf of the accused and seek to ensure that the issue of his insanity is fully investigated in the course of his trial?”

3. On the 1st July, 2003 Sean Redmond, the accused, was before Castlebar Circuit Criminal Court on a single count of causing serious harm, contrary to s.4(1) of the Non-Fatal Offences Against the Person Act, 1997. It was alleged that on the 20th November, 2002 at Castlebar he intentionally or recklessly caused serious harm to Liam Humber.
4. Defence counsel applied to the trial court for a jury to be empanelled to determine the issue as to whether or not the accused was fit to plead. This application was subsequently withdrawn.
5. When arraigned before Castlebar Circuit Criminal Court on the 1st July, 2003 before Judge Kenny the accused pleaded guilty. The matter was then adjourned to the following term for sentence. The accused was remanded in custody.
6. The matter was listed before Judge Haugh (as he then was) at Castlebar Circuit Criminal Court on the 9th December, 2003, and the 13th December, 2003 was fixed for the sentence hearing.
7. On the 12th December, 2003 Detective Garda R.J. Lawlor gave evidence in relation to the offence and the background circumstances.
8. The facts were found by the Circuit Court as follows:

“Around 9.30 a.m. on the 20th November, 2002 the accused attacked the victim with a knife and caused him serious injuries. The attack was an unprovoked attack in the vicinity of St. Mary’s Psychiatric Hospital in Castlebar and was witnessed by a number of individuals. The accused has a psychiatric history and was attending the hospital on the morning in question for an appointment with his Psychiatrist, Dr. John Connolly. The victim was an in-patient of St. Mary’s Psychiatric Hospital. Following the stabbing the accused went into an office in the Psychiatric Hospital. He told a person in the office that he had stabbed somebody and he told them where the knife was. No rational motive or discernable reason was established for the attack. The accused apparently told Dr. O’Rourke (Psychiatrist) when examined on the day of the incident that he had heard voices telling him to “get them” and that his attack was in response to the voices.”

9. By agreement with the prosecution the defence submitted medical reports as follows: (a) from Dr. Charles Smith, Consultant Psychiatrist, Central Mental Hospital, and (b) from Dr. Seamus Geraghty, Consultant Psychiatrist; the Book of Evidence contained (c) a statement of evidence from Dr. John Connolly, Consultant Psychiatrist; and (d) a statement of evidence from Dr. O’Rourke, Consultant Psychiatrist.
The trial judge attached the reports to the consultative case stated. No finding of fact was made specifically on the reports other than what may be inferred from the question to this Court where the learned judge states ‘I am satisfied that I have substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the offence’. In general it is more appropriate if findings of fact are made in the body of the case stated.
10. The trial judge raised the point with counsel that there was no defence of diminished responsibility in Irish law, and reference was made to The People (D.P.P.) v. O’Mahony [1985] I.R. 517.
11. The trial judge stated, in the consultative case stated:

“In light of the evidence before me, I am of the opinion that there are substantial grounds for believing that the accused may have been insane in law at the time of the commission of the alleged offence and that a Defence of “not guilty” may be a more appropriate plea that a plea of “guilty”. As I understand the law, it is that a person who is found not guilty by reason of insanity is deserving of treatment not punishment whereas a person who pleads guilty or who is found guilty is deserving of punishment. I am informed that the plea of the accused in this instance is motivated by practical considerations - i.e. he would prefer to have a definite sentence rather than a situation whereby he would be detained at the pleasure of the government in the Central Mental Hospital.”

“If the accused or his advisers are not prepared to make the case that he is insane, the duty of putting such evidence as is available on the topic before the jury rests on the People, if the Attorney General is of opinion that the evidence is such that the jury might reasonably conclude that the accused was insane.”

While this is not the situation in this case, it does by inference refer to a duty on the People, and thus their representatives, the Attorney General and the Director of Public Prosecutions, to put before a court the issue of the insanity of an accused even if it is not raised by an accused or his legal advisers.
Again, in Bratty v. Attorney General for Northern Ireland [1963 AC 386] Lord Denning stated, at p. 411:

“My Lords, I think that Devlin J. was quite right in Kemp's case (1957 1 QB 399) in putting the question of insanity to the jury, even though it had not been raised by the defence. When it is asserted that the accused did an involuntary act in a state of automatism, the defence necessarily puts in issue the state of mind of the accused man; and thereupon it is open to the prosecution to show what his true state of mind was. The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than allow a dangerous person to be at large. The Trial of Lunatics Act, 1883, says that where ‘it is given in evidence’ that the person was insane, the jury shall return a verdict of guilty but insane.”

Thus, applying that principle, I am satisfied that both the defence and the prosecution may raise the issue of insanity. Indeed, depending on the circumstances, as well as there being a duty on the prosecution to raise the issue of insanity, there is a duty on the trial judge to raise the issue.
15. A Plea
I am satisfied that in general an accused has a right to choose whether or not he will enter a plea of guilty. Such a right is enhanced if the accused has the benefit of legal advice, as in this case. It would only be in exceptional circumstances that a court would intervene in such a decision. The right to enter a plea is not an absolute right. The court retains a discretion at all times to ensure that there are fair procedures and due process.
Thus, for example, if an accused was not legally represented and had entered a plea, a judge, on hearing more of the circumstances might, correctly, determine that the justice of the situation was best met by the accused not entering a plea, but pleading not guilty. The judge takes such steps to ensure the administration of justice.
There are many factors which may influence an accused in his decision to plead. I stress that once a plea is entered, in general, it is not a matter for the court to inquire into. However, the court at all times retains an inherent jurisdiction, and indeed a duty, to protect the fairness of the proceedings, to protect a fair trial process. This is a constitutional duty of judges of all jurisdictions.
16. Presumed sane
A person is presumed sane and responsible for his actions. However, in this case the learned trial judge has substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the crime. While usually the issue of insanity is a matter to be raised by the defence, it is also an issue which may be raised by the prosecution, especially if the situation is one relating to a dangerous man in the community. In this case the court has evidence before it so as to raise a doubt as to the sanity of the accused at the time of the alleged crime.
In such circumstances I am satisfied that the matter should be decided by a jury - before whom all the facts may be placed by the accused and the prosecution.
17. Integrity of the process
In addition to an inherent jurisdiction and indeed a duty to protect fair procedures, the court has a duty to protect the integrity of the court process. Inherent in the judicial process is the right of the judge, and indeed duty in certain circumstances, to ensure that there is an administration of justice in court.
18. Unusual factors
A critical, and unusual, factor in this case is that the learned judge has been informed of the motive for the plea, which itself is unusual. This motive is to avoid an indefinite detention which would arise if it were determined that the accused was insane. In addition, the other unusual factor is that, on the evidence before him, the learned trial judge is satisfied that he has substantial grounds for believing that the accused was insane at the time of the acts alleged to constitute the offence.
The fact that the accused is now found fit to plead does not negate these unusual factors. Nor does the accused’s fitness to plead abrogate the duty and discretion of the court.
The motive of the accused to plead is that he wishes a definite sentence, a certain sentence, which would be the consequence of a prison sentence on conviction. He favours this over his being placed in a mental institution which would be for an indeterminate period of time.
While there is a rationality to such a wish, it vitiates the basis of criminal law - the criminal mind, and criminal intent.
This brings me to the next unusual factor, which is that the trial judge has substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the crime. Thus the trial judge has substantial grounds for believing that the accused was incapable of having the necessary mental element to constitute the crime. The judge is being asked to collude in a situation where he has substantial grounds for believing that there was no crime. The judge is being asked to support a sham.
A judge has duties, and they are not only to an accused. A judge also has duties in relation to the people of the State, the common good, and the prosecution.
An important right is the right to have a fair trial, to have a trial in due course of law. These are rights for an accused. But they are rights also for the people of Ireland. It is important that the people have confidence that the courts conduct trials in a fair and just manner. The integrity of the justice system is a fundamental aspect of the State.
The trial court has an inherent jurisdiction from its nature as a court to administer justice. In exercising such jurisdiction a judge may take such steps necessary to, for example, prevent a sham of court proceedings.
It is a sad reflection on society if persons, who are mentally ill, or who have committed acts without the mental element necessary for a crime, are detained in prison rather than in appropriate medical institutions.
The question is whether it is appropriate for the learned trial judge to treat as a criminal, to categorise as a criminal, and sentence as a criminal, a person who he has substantial grounds for believing is not a criminal.
The dignity of a person is also relevant. A person who is found not guilty by reason of insanity does not have the status of a convicted person. As Finlay C.J. stated in The People v. O’Mahony [1985] I.R. 517 at p. 522:

“Under our law a person found not guilty by reason of insanity can only be detained so long as the court is satisfied that his mental condition persists in a form and to the extent that his detention in an appropriate institution is necessary for the protection of himself or of others. He is not, in the view of our law, a criminal nor has he been convicted of a crime.”

The law in Ireland has not advanced significantly in relation to mental illness and the criminal responsibility of persons who are mentally ill. I understand that it is planned to bring in new legislation. However, this case must be decided in the bleak landscape of the current law, in the expectation of future appropriate developments, which, however, are not applicable to the accused.
If the trial judge did not have jurisdiction to intervene and he had to proceed on the plea, then he would have to proceed to sentence. However, in sentencing a judge has to, amongst other matters, consider the crime committed and make the sentence proportionate to the specific crime. This trial judge has information such that he does not believe a crime has been committed. So how could he assess the nature of the crime? Further, the sentencing judge would have to assess the particular person who committed the crime, the accused, and render a sentence proportionate to that person. The motive, and circumstances around criminal intent, would be relevant. Yet it appears that in this case the trial judge considers there are substantial grounds for believing there was no criminal intent. How could he assess a proportionate sentence for such a situation? He could not, as he would be sentencing where he has substantial grounds for believing that there was no crime.
At issue is the mental state of the accused at the time of the alleged crime. In the circumstances it is accepted that the accused is now fit to plead. Any issue as to the constitutionality of a judicial power to direct indefinite detention of a person in the Central Mental Hospital, on the basis that he has been accused of a criminal offence and is not fit to plead, does not arise.
19. Legislation
The court applies the law as it stands, and submissions as to a need for the introduction of alternative pleas, such as that of diminished responsibility and irresistible impulse, are matters for the legislature. Also, an alternative system, a type of restorative justice, is a matter for the Oireachtas.
20. Decision
It is an injustice if a person is convicted and sentenced for a crime which he has not committed - even if he pleaded to the charge.
It is a matter of concern if a legal system permits the conviction of a person in the circumstances of this case.
I am satisfied that the learned Circuit Court judge has an inherent jurisdiction, and indeed a duty, to act to ensure the due process of law, which includes the concepts of justice, the dignity of a person, and the public interest in the integrity of the justice system. Such inherent jurisdiction may arise in relation to the plea given by an accused.
Intervention by a judge would happen only in exceptional circumstances. It appears to me that the circumstances of this case, including the two factors referred to previously, constitute exceptional circumstances so as to warrant intervention by the trial judge. Consequently I would answer the question in the affirmative.
I am satisfied that (a) the court has an inherent discretion to intervene in a plea, (b) that this would only be exercised in exceptional circumstances, and (c) that the circumstances of this case are exceptional in that the accused is pleading guilty, not because he admits to committing the crime but because he wishes to avoid detention in a mental institution which would be for an indefinite length of time, he wishes to obtain a definite sentence from the Court, and, most importantly, the judge has been informed of this situation and consequently would be proceeding to sentence for something which he has substantial grounds for believing is not a crime.
It is open to the trial judge to vacate the plea of guilty by the accused and have a jury determine whether at the time of the commission of the actions alleged the accused was sane or not. This approach best serves the interests of justice and the integrity of the judicial system. I do accept that there is a likely consequence that the accused will be detained in a medical institution for whatever period of time is necessary to treat a dangerous psychiatric condition and that such detention may be indefinite.
However, it appears to me that there is a balance of rights to be achieved - the right to enter a plea does not cap the right to a fair trial, the right to due process, the community’s right to fair administration of justice, and the people’s right to the protection of the integrity of the judicial system.

21. Conclusion
Consequently, for the reasons given, I would answer the question posed in the affirmative. I am satisfied that in the circumstances the learned trial judge is entitled to decline to accept the plea of guilty offered by the accused in this case, enter a plea of not guilty on behalf of the accused, and seek to ensure that the issue of his sanity is fully investigated in the course of his trial.

DPP v. Redmond