Supreme Court of Ireland Decisions

An Chúirt Uachtarach

The Supreme Court

 

Dunne J

Charleton J

O'Malley J.

Woulfe J

Murray J

 

Supreme Court appeal number: S:AP:IE:2022:000061

[2024] IESC 25

Court of Appeal record number: A:APIE 2015 000065

[2022] IECA 68

Central Criminal Court bill number: CCDP0092/2011

 

 

 

Between

 

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

 

 - and -

 

 FX

Accused/Appellant

 

Judgment of Mr Justice Peter Charleton delivered on Thursday 20 June 2024

 

1. The principal judgment is that of O'Malley J. The result she proposes, that the appeal be dismissed, is undoubtedly correct. The route to the order proposed may be reached by another route.

 

2. As O'Malley J states, the basic facts are that FX was confined, voluntarily, to a mental treatment centre when he stabbed the victim, a fellow patient, in 2010, resulting in paralysis. Several months later, the victim died. What had initially been a charge of causing serious harm against the accused was processed by him being sent forward to the Circuit Court for a decision as to whether was fit to plead to the change. Then, the victim died and a nolle prosequi was entered on that charge and a murder charge was filed, which had to be with ultimate trial in the High Court. He was sent forward to the Central Criminal Court for the trial of an issue of fitness to plead where he was found to be unfit to be tried. An application to be discharged was then made and for the purpose of that application the prosecution served a book of evidence and a statement in the form of an indictment with two charges, namely murder and causing serious harm, despite there being no return for trial. Causation was not found on this trial of an issue and so the murder charge ended, leaving the causing serious harm charge. Since then, his litigation, namely habeas corpus and appeals against the trial of an issue order, have all been based on the argument that the causing serious harm charge was not properly before the Central Criminal Court, because he was not sent forward on that charge. O'Malley J sets out in full the permutations of the issue that thereby arose. The technicality of that process does not affect this issue.

 

3. Essentially, the prosecution argument was that while there might be a doubt as to what killed the victim, the act of the accused was of taking a knife and stabbing him; whether that action had been reduced to one of mere historic background (thus enabling a finding of reasonable doubt as to proof of causation) or not, the factual reality of the serious assault remained.

 

4. By a later determination, that charge of assault causing serious harm was enabled by a judge sitting alone to remain against the accused. O'Malley J proposes as the order on this appeal that it remain and that if, or when, the accused becomes fit to be tried, the criminal process will resume.

 

5. Prior to the Criminal Law (Insanity) Act 2006 as amended by the Criminal Law (Insanity) Act 2010, statutory definitions were absent as to insanity and as to the test as to when someone was fit to plead to a charge. Insanity as a concept had developed at common law and had come to include irresistible impulse as well as not knowing the nature and quality of the act that the prosecution was required to prove or that act was wrong. Diminished responsibility had been developed from the common law in Scotland, but not here or in England & Wales, and was introduced by statute in that jurisdiction before the reforms of the 2006 Act introduced that defence here. Fitness to plead was never necessarily tied up with an accused pleading an insanity defence, or diminished responsibility, since a person's mental condition could fluctuate. An accused might have been sane at the time of an offence but have developed a serious mental illness since and a person so mentally unwell as to be unable to plead to a charge might also have had a condition at the time of the act alleged against him or her whereby an insanity or diminished responsibility defence could be proven by that accused as a probability.

 

6. Hence, fitness to plead has always been different, in terms of test and in terms of consequence, from a defence to a charge of mental infirmity (insanity or diminished responsibility). The early case of R v Dwerryhouse (1847) 2 Cox 446 pointed up the difficulty in dealing with a person found unfit to plead. That was the legislative context for the power granted to the Secretary of State to remove a person certified to be insane as of arraignment for trial and order their detention in a hospital until their remittal to prison or discharge: Criminal Lunatics Act 1884 s 64. That legislation required a jury to make a finding as to whether "a defendant who stands indicted . . . be insane or not". Those who made no answer on the reading of an indictment to them were said, prior to that time, to either be mute of malice or by the visitation of God. In R v Pritchard (1836) 7 C&P 303, the test for being fit to plead was arrived at by Alderson B on the basis of this direction to the jury:

 

There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence - to know that he might challenge any of you [the jury] to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.

 

7. Those found insane on being indicted were held, according to the approach of the time, "at Her Majesty's pleasure"; in other words indefinitely. People might recover and be tried but might relapse on being again indicted or might never recover sufficiently and be held for their natural lives. On some occasions, not even evidence was required for this. Rather, the jury could form their own opinion, which in notorious cases was not necessarily a fair way to proceed; R v Turton (1854) 6 Cox 385, a charge of using seditious language against Queen Victoria. The test for fitness to plead is now mirrored, with minor changes, in s 4(2) of the 2006 Act. The inappropriate language of a former era is also removed.

 

8. But the real issue was with the warehousing of accused persons who may, or may not, have been insane when the crime was committed or who may or may not have been considered guilty by the prosecuting authorities but were in fact unconnected with any ostensible crime. It is necessary to so describe an incident where an insane person does any action which for those in possession of their faculties would be a crime. Insanity is a defence which has evolved in terms of the verdict to be given at trial from a former "guilty but insane" finding by the jury to that of "not guilty by reason of insanity"; 2006 Act s 5. Insanity is a complete answer to a criminal charge. Crime cannot be committed by an insane person. The act takes place, the stabbing or the assault leading to death, but in terms of law it is as if by accident; that instead of a person attacking the victim, there was an accident whereby through unconscious human agency a bodily hurt was done to them. That is what insanity means. But, public attitudes may not necessarily accord with the law. Further, in so far as an accused has understanding, they may know they have been accused of a crime, which is an attack on society and ordinarily a very grave wrong. There is a contrast here. If someone becomes so mentally ill as to require in-patient treatment, they are held without any possible stigma of having committed a crime; further, they are subject to periodic reviews. If unfit to plead, there will be reviews on a periodic and statutory, but, arguably, the stigma remains. For those who have not committed the act, that excepting the defence of insanity would have been the crime, it is unfair to hold them under that state.

 

9. Statutes are construed according to their plain words, within the context of the enactment and also in the realisation that the state of the law prior to legislation and the purpose of the enactment are indispensable instruments for construction as well as the requirement that a court give to legislation its ordinary meaning. The law is reviewed by Murray J in Heather Hill Management Company CLG & McGoldrick v An Bord Pleanála, Burkeway Homes Limited and the Attorney General [2022] IESC 43 from [103]. It does not add to that analysis, but confirms it, that courts "can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge"; AG for Northern Ireland v Gallagher [ 1963] AC 349, 366.

 

10. Here, the mischief was plain: that of holding a person indefinitely. That is dealt with in s 11 of the 2006 Act. The other mischief is that a person held by virtue of a judge, whose responsibility it now is under the legislation and not a jury, finding them unfit to plead is held by virtue of not being fit to plead to an allegation that they committed a criminal offence. Certainly, they may have a defence, and it may be insanity or some other defence, but it may be some other applicable defence.

 

11. Insanity should not be looked at in the same way as other defences. The theory there is that the mental infirmity overwhelms the mind. In murder, where a person to be guilty must both kill and intend to kill or cause serious injury, the insane person may think they are attacking a viper or may suffer from a persecution complex so strong that they feel under constant attack from the police. In killing a person by strangling them, their intent may be to kill an animal or may be to ward off what is in their own mind an imminent deadly attack from authority intent on their destruction, but in the first instance it may be their domestic partner and in the second a jogger going through a public park in a shiny blue track suit. It could be said, they are innocent, they have no intent to kill or they may have an innocent purpose in defending themselves by lethal force. But, insanity overwhelms the elements of a crime, overriding the elements of an offence, and renders the action one to be diverted through proof of the exceptional circumstances that render the action one not of being not guilty but one of being not guilty by reason of insanity. O'Malley J mentions other defences, but a belief that one is Mohandas Gandi and dressing according to the style of his later life, thereby attracting thuggish attention and having to ward off blows or even strike back lethally in defence, is to be adjudicated outside the realm of what is insane or not. Whether deluded or whether perfectly sound in mind, everyone has the right to use appropriate and proportionate force in defence. That is why a killing in self-defence is not an unlawful killing for the purposes of s 4 of the Criminal Justice Act 1964. When that legislation was enacted, the death penalty was on the statute book and such a killing pursuant to a warrant of a court would have been lawful, as is killing in proportionate and reasonable self-defence. The lawful use of force resulting in death is not a defence but, instead, is a lawful action.

 

12. As a final comment, it may be recalled that by the time of the publication of Edward Coke's The Institutes of the Lawes of England, in parts ending about 1644, the standard common law test for criminal liability was well embedded in the Latin maxim: actus reus non facit reum nisi mens sit rea. The act of a person is not the crime unless the mind is guilty. That generally is the act that those dealing with criminal law focus on, the external element of the crime. In the American Law Institute construction of the Model Penal Code, the ancient formula is rendered in section 2.02 under the general rule as to culpability, under "Minimum Requirements of Culpability" that, with exceptions, "a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense." The material element of the offence is the external element; what a person does whereby, ostensibly and to an observer looking objectively at what was done  that  a person charged did something.

 

13. That is the act, the material element, the external element. It is not the mental element and it is not necessary to bring that element into the construction of the provisions of the 2006 Act which use the concept of act as a term of art in circumstances where it is difficult to extend it to culpability as regards the mental element of a crime.  

 

14. The concentration here is on subsections 7 and 8 of section 4 of the Act. Section 4(7) enables a discretion in a trial judge so that where a person is actually being tried "the question arises as to whether or not the person is fit to be tried" a judge may decide "that it is expedient and in the interests of the accused" to "defer consideration of the question until any time before the opening of the case for the defence" thus enabling the court to direct the jury to acquit, which is a normal course of action for every trial where the evidence falls short of what is needed, or instead allow the jury to "return a verdict in favour of the accused or find the accused person not guilty" whereupon fitness to be tried as a "question shall not be determined and the person shall be acquitted." That has to do with the prosecution not being able to prove guilt and may bring in the mental element of culpability.

 

15. Section 4(8) applies where a judge has decided that "an accused person is unfit to be tried" then a court "may on application to it in that behalf allow evidence to be adduced before it as to whether or not the accused person did the act alleged". The judge alone is, again, unlike under the former system, trying the case. So, first, a determination that the accused cannot follow the evidence etc and then, if the court considers it an appropriate case, the court may also hear what the evidence is. Naturally, as in all cases apart from where the accused confesses that she or he meant to kill or to steal, it is by inference from facts that a culpable mental state is found. Here the concentration is not on this but on the action. The subsection states that, upon hearing evidence, "if the court is satisfied that there is a reasonable doubt as to whether the accused did the act alleged, it shall order the accused to be discharged."

 

16. What is the "act alleged"? Section 7(3) enables an appeal to the Court of Appeal "from a determination by the Central Criminal Court, the Circuit Court or the Special Criminal Court that an accused person is unfit to be tried". It is only "if the Court ... allows the appeal" that it can make an order which is that "the appellant be tried or retried as the case may be for the offence alleged". Where, however, "the court concerned, pursuant to section 4(7), postponed consideration of the question as to the accused's fitness to be tried and the Court of Criminal Appeal is of opinion that the appellant ought to have been found not guilty before the question as to fitness to be tried was considered, the court shall order that the appellant be acquitted."

 

17. It is hard to see that as illuminating the issues highlighted. It applies to a specific and very unusual formula and one likely to occur but rarely.

 

18. The act alleged is to be construed plainly. In many criminal offences it may be said that the mental and external elements are linked and that the act alleged cannot be extracted without damaging the very fabric of the law. That is not such a problem as it may seem. Here, the act alleged is picking up a knife and stabbing the victim in the spine. If the accused did not attack the victim, he should be taken out of the criminal justice system altogether. That is what the legislation is designed to do.

 

19. It was argued before the Court that such a construction would be insufficient for offences of possession, or possession-based offences, where an animus possidendi is always required. That does not cause the kind of problems that were contended for on behalf of the accused. The act of possession is one of taking into control or of arranging for the taking into control or of taking into control through another. That could be drugs or firearms or explosives. But there is a fault element in the external element which, like dangerous driving cannot be committed without that fault (a person directed up a one-way street by police is not at fault even though this is dangerous): this is the doing of the act that makes the possession into possession. No one is in possession of LSD tablets that someone else secretes in one's backpack prior to a customs check. If the accused did not do that act, there is not fault.

 

20. No mental element need come into it. If explosives arrive on a farm owned by AB, the fault is enabling them to be put there, giving permission to secret them there or to not say 'no' where terrorists suggest that there might be a handy hiding place. That is the act, that is the external fault. If an accused did not do that, there is no act.

 

21. Similarly, under the Criminal Justice (Theft and Fraud Offences) Act 2001 it became possible for the first time to steal real property. This mind-boggling concept must surely, one might say, involve fault. But, no, the offence may be committed by a trustee who instead of using the property for the benefit of the trustees transfers it into his own name or the name of a company controlled by the trustee from abroad. What is the act? It is in sending the email instruction to the foreign bank, or whatever, to take conveyance of a particular farm. That is the act, that is the fault. If someone else did that in the accused's name, there is no act.

 

22. Similarly, to steal there must be 1) an action inconsistent with the ownership by the victim of the property (which in the case of the trustee would be the email instruction) and 2) in modern terms an intention to do such an inconsistent action. Running around a store and taking up clothing and dashing out onto the street would be the act in an everyday setting. The act is the taking. If by some bizarre and unnoticed accident, slippers were to adhere by Velcro to the suspect's coat in winter and for those actions, inconsistent with the store's ownership, to continue out into the street, there is an act but it is not an act of taking. There is no fault.

 

23. Here there was an act, that of stabbing. Therefore the decision of O'Malley J that there should be no reversal of the decision that the accused remains in the court system pending his recovery, and therefore fitness to plead, is the correct order.

Result:     Dismiss Appeal