Supreme Court of Ireland Decisions

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AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2022:000061

[2024] IESC 25

 

Dunne J.

Charleton J

O'Malley J.

Woulfe J.

Murray J.

 

 

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

 

v.

 

F.X.

Judgment of Ms Justice O'Malley delivered the 20^th day of June 2024

 

Introduction

1.      The issues in this appeal concern the operation of certain provisions in the Criminal Law (Insanity) Act 2006 ("the Act of 2006") relating to persons who are charged with criminal offences but who, by reason of mental disorder, cannot be fairly tried. An issue about fitness for trial may or may not be related to any question as to whether the person was legally insane when carrying out the alleged crime - it can be an entirely separate matter and may relate only to a temporary condition. The point of the legislation is that it would be wrong to put people through a criminal trial process at a time when a mental disorder has the effect that they are not able to defend themselves effectively.

 

2.      Until 2006 the procedure for dealing with accused persons who were not fit for trial by reason of mental disorder was that prescribed over 200 years earlier by s.2 of the Criminal Lunatics Act 1800:

 

"...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..."

 

3.      Accused persons who were the subject of such a finding were, thereby, liable to indefinite psychiatric detention in a criminal lunatic asylum, under the same regime that applied to those found to have been guilty but insane. (In the modern era this has included periodic reviews and reports to the court of trial.) Prior to 2006, there was no way in which a person too ill to be tried could challenge the substantive merits of a charge and establish their innocence, even if the prosecution case might objectively be considered deficient.

 

4.      Section 4(8) of the Criminal Law (Insanity) Act 2006 now provides for a procedure which can potentially result in an acquittal of a person, even though they are unable to properly defend themselves. They must be discharged if the prosecution cannot prove beyond reasonable doubt that they "did the act alleged". The dispute in this appeal centres on the interpretation, operation and effect of that provision. The appellant, who suffers from a serious mental illness, has been discharged in relation to a charge of murder because it was found that the prosecution could not prove that his actions were the cause of death. However, he remains detained under the Act, and potentially liable to stand trial, on a further charge arising out of the same incident. He argues that the effect of the discharge is that he should not be retained within the criminal justice system.

 

Related matters - insanity and diminished responsibility

 

5.      It is relevant to note the statutory provision made in respect of these related matters in the Act of 2006, because the history and wording of the various sections may cast light on the issues to be determined in this appeal. It is also necessary to consider whether certain words and phrases used in the Act mean the same thing throughout the statute, or must be interpreted differently in different sections. The normal assumption is that they have the same meaning. As Dodd puts it (in Statutory Interpretation in Ireland, Bloomsbury Professional, 2008):

 

"When expressions are repeated in an enactment, and especially in a particular part of the same enactment, it is logical that they should be given a common meaning, force and effect unless the context requires otherwise."

 

6.      The Criminal Lunatics Act 1800 provided for the consequences of a finding of insanity. If the jury believed that the person was insane at the time of "the commission of the offence", and acquitted for that reason, they were required to state that fact. The result was that the court could order the person to be detained.

 

7.      This provision was amended by the Trial of Lunatics Act 1883, which dropped the phrase "commission of the offence". It provided that where any "act or omission" was "charged against a person as an offence", and it appeared to the jury that the accused 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 the jury was to return a special verdict of "guilty but insane".

 

8.      The 1883 Act was interpreted by the House of Lords in R. v Felstead [1914] AC 534 as meaning that an accused person who was found guilty but insane had no right of appeal to the Court of Appeal, because he was not a "convicted" person. The appellant in that case had been charged with wounding with intent, and was found guilty but insane. He was willing to serve a sentence of imprisonment but did not wish to be detained indefinitely during the King's pleasure in a criminal lunatic institution. In arguing that he was entitled to appeal, the case made on his behalf was that such a verdict amounted to a finding of guilt. It was submitted that insanity was not a defence in the sense that it negatived the commission of a crime - rather, it meant that the accused person had committed a crime but was absolved of responsibility for it.

 

9.      Giving the decision of the House of Lords, Lord Reading considered the common law and statutory history on the subject. He observed that the Act of 1883 made no substantial difference in the administration of the law except that it enacted that where upon evidence the jury were satisfied that the accused did the act charged, but was insane so as not to be responsible for his actions at the time he did the act, they must return a special verdict to that effect. He continued:

 

 

"That is not a verdict that the accused was guilty of the offence charged, but that he was guilty of the act charged as an offence. In other words, this verdict means that, upon the facts proved, the jury would have found him guilty of the offence had it not been established to their satisfaction that he was at the time not responsible for his actions, and therefore could not have acted with a "felonious" or "malicious" mind, which, is an essential element of the crime charged against him.

 

The indictment of the appellant was for 'feloniously' and 'maliciously' wounding Lilian Ann Felstead, with intent to do some grievous bodily harm. It is obvious that if he was insane at the time of committing the act he could not have had a mens rea, and his state of mind could not then have been that which is involved in the use of the term 'feloniously' or 'maliciously'..."

(Emphasis added.)

 

10.  The 1883 Act, and therefore its interpretation in Felstead, continued to be the law in this jurisdiction until 2006. Quite apart from the core finding - that there was no right of appeal against a verdict of insanity - the analysis in Felstead established two other propositions. The jury could not return such a verdict unless they would have convicted the accused in the absence of insanity, but the finding of insanity meant that the accused could not have had the necessary intent or mens rea.

 

11.  Insanity verdicts are now provided for in s. 5 of the Act of 2006. (It should be noted here that, for the purposes of the Act and throughout this judgment, the word "act" includes an omission.)

 

12.  The section refers to a finding by the trial court, having heard the evidence of a consultant psychiatrist, that the accused person "committed the act alleged against him or her" but that:

(a) the accused person was suffering at the time from a mental disorder, and

(b) the mental disorder was such that the accused person ought not to be

held responsible for the act alleged by reason of the fact that he or she—

(i) did not know the nature and quality of the act, or

(ii) did not know that what he or she was doing was wrong, or

(iii) was unable to refrain from committing the act.

(Emphasis added.)

 

13.  In such a case, the court must return a special verdict to the effect that the person is not guilty by reason of insanity. Thus far, this part of the Act puts the common law criteria for insanity into statute. The phrase "committed the act" appears to mirror the language of the Act of 1883 and the analysis in Felstead. The accused has done something that, in the absence of the presence of a mental disorder that produced the specified effects, would have led to a conviction. The finding of insanity leads to a special verdict that amounts to an acquittal, albeit that it may have other consequences as set out in the section.

 

14.  However, a slightly different picture emerges on consideration of the provisions governing appeals. Section 8 of the Act reverses part of Felstead by introducing, for the first time, a right of appeal against the verdict for a person who has been found not guilty by reason of insanity. Section 8(6) provides that in the case of a person tried on indictment, the accused may appeal to the Court of Appeal "on one or more or all of the following grounds":

 

(a)   that it was not proved that he or she had "committed the act in question";

(b)   that he or she was not, at the time when "the act was committed", suffering from relevant mental disorder, or

(c)   that the trial court ought to have made a determination that he or she was unfit to be tried.

(Emphasis added.)

 

15.  If the appeal is brought on ground (a), and the Court of Appeal is satisfied that it was not proved that the appellant "committed the act in question", it shall order the appellant be acquitted (s.8(7)).

 

16.  Section 8(8) provides that if the appeal is on ground (b), and the Court of Appeal is satisfied that the appellant "committed the act alleged" but is also satisfied that they did not suffer from any relevant mental disorder, it shall substitute a verdict of guilty of the offence charged or of any other offence of which it is satisfied that the person could (by virtue of the nature of the charge) and ought to, in the view of the Court, have been convicted. (This latter option is similar to the jurisdiction of the Court of Appeal, in an ordinary appeal against conviction, to quash a conviction but substitute a verdict of guilty of another offence where the jury must have been satisfied of facts proving the appellant guilty of that other offence - s.3 of the Criminal Procedure Act 1993.)

 

17.  If the appeal is on ground (c), and the Court is satisfied that the person should have been found unfit to be tried it shall make a finding to that effect, in which case the provisions of s.4(5) shall apply.

 

18.  These provisions (apart from ground (c)) are not easy to construe. The section does not refer to the possibility of making of an order for a retrial. If the Court is satisfied that the appellant committed the "act" but did not suffer from a mental disorder it must substitute a verdict of guilty. That would seem to imply that the (undisturbed) finding of the trial court that the "act" alleged was committed, combined with the finding of the appellate court that there was no mental disorder meeting the statutory definition, must necessarily be sufficient to ground a conviction. On its face, the section does not appear to envisage an argument by the defence that the accused a) did the physical act, and b) did not suffer from mental disorder but c) acted accidentally or mistakenly and therefore lacked criminal intent. Yet, obviously, such a defence might have been made in the trial.

 

19.  It may be that the section is to be read as importing part of the Felstead analysis - the statement that the jury could not reach a verdict of insanity unless it would otherwise have convicted. Section 8(10) seems to proceed on that basis. The Court is to dismiss an appeal against the insanity verdict if satisfied that the person "was at the time that the offence alleged was committed" suffering from a relevant mental disorder and that but for that disorder "would have been found guilty" of the offence charged or of another offence of which the person could have been found guilty by virtue of the charge.

 

20.  However, if this reading is adopted it seems to imply a finding that in deciding to provide a right of appeal in such cases, the legislature decided also to limit the scope of that right of appeal to the facts of what the accused was alleged to have done, without any right to appeal on the aspect of mens rea other than in relation to the presence or absence of insanity. It is hard to see why that should be the case. It must also be borne in mind that juries can reach verdicts of insanity in different situations. It may be that they are satisfied that the accused intended to do what he or she did, while accepting that the intent was the product of a mental disorder. It could, alternatively, be the case that they believe that the disorder rendered the accused incapable of forming an intent. Either way, it is difficult to see how an appellate court can necessarily assume that the verdict imports a sufficient finding of the necessary intent to ground a conviction. I think that certain of the comments of the Court of Appeal of England and Wales in Attorney General's Reference No.3 of 1998 (considered in detail below) are apposite here:

 

"...nothing in the legislation suggests that if the jury has concluded that the defendant's mental state was such that, adapting Lord Diplock's observation in Sullivan, his mental responsibility for his crime was negatived, it should simultaneously consider whether the necessary mens rea has also been proved. These mutually incompatible features may of course require examination by a jury when, contrary to the defence plea of insanity, the Crown is nevertheless seeking to establish guilt of the offence charged, but once it is decided that the defendant was indeed insane at the time of his actions, in accordance with Felstead, mens rea becomes irrelevant."

 

21.  It may be a situation where the phrase "one or more or all of the following grounds" in s.8(6) should not be read as exhaustive of the arguments that can be made on appeal. Alternatively, it may be that s.9(4) (which provides that the appellate Court has the power to make any such order as may be necessary for the purpose of doing justice in accordance with the provisions of the Act) can be resorted to.

 

22.  For present purposes, it is not necessary to offer an authoritative interpretation of s.8 and I do not do so.

 

23.  Section 6, which introduced for the first time the partial defence of diminished responsibility in murder cases, refers to a finding that the accused person:

(a) did the act alleged,

(b) was at the time suffering from a mental disorder, and

(c) the mental disorder was not such as to justify finding him or her not guilty

by reason of insanity, but was such as to diminish substantially his or her responsibility for the act.

(Emphasis added.)

 

24.  If the jury makes such a finding, it must return a verdict of manslaughter rather than murder. It is worth noting that s.6(2), dealing with the burden of proof, makes it clear that the defence only arises where the accused is otherwise liable to be convicted of the offence of murder (see discussion in People (DPP) v Heffernan [2017] IESC 5). Thus, although s.6 refers only to "the act alleged", the jury would also have to have found that the accused person had the necessary mens rea for murder before reaching the conclusion that the mental disorder diminished his or her responsibility. Therefore, in this context at least, "the act alleged" must be seen as incorporating all of the elements of the offence of murder.

 

Fitness for trial under the Act of 2006

 

25.  Under s.4 of the Act of 2006, as amended, a person is not fit to be tried if he or she is unable, by reason of mental disorder, to understand the nature or course of the proceedings so as to (a) plead to the charge, (b) instruct a legal representative, (c) in the case of an indictable offence which may be tried summarily, elect for a trial by jury, (d) make a proper defence, (e) in the case of a trial by jury, challenge a juror to whom he or she might wish to object, or (f) understand the evidence. These criteria reflect the established approach at common law.

 

26.  Obviously, a question of mental capacity with regard to any of the criteria can arise at any stage in the criminal process. Where it does arise, it is necessary for a court to hear evidence as to the mental condition of the accused person. If the person is found to be fit, the trial process continues.

 

27.  The Act envisages that the necessary enquiry will be conducted in the court in which the offence charged is intended to be tried. For offences triable only on indictment, that will be either the Circuit Court, the Central Criminal Court or the Special Criminal Court.

 

28.  In some cases, the issue of capacity may only arise after the book of evidence has been served and the accused has been sent forward for trial. However, it may arise during the District Court procedures (under the Criminal Procedure Act 1967 as amended) that are a necessary preliminary to most trials on indictment. (As the pre-trial procedures can differ in relation to courts martial and the Special Criminal Court, and as those differences are not relevant in this case, I do not propose to deal here with trials in those venues.) Where that happens, s. 4(4) of the Act of 2006 applies. Under s.4(4)(a), any question as to whether the person is fit to be tried must be determined by the court to which that person would have been sent forward for trial if he or she were fit to be tried "and the [District] Court shall send the person forward for the purpose of determining that issue". Thus, the District Court will not necessarily have finalised the task of ensuring service of the book of evidence and it does not send the accused forward "for trial", as would normally be the case.  

 

29.  Where an accused person is sent forward to the court of trial under this provision, the question of whether he or she is fit to be tried is, under the Act, to be determined by a judge of that court sitting alone (s.4(4)(b)). If the determination is that the accused person is fit to be tried, then the provisions of the Criminal Procedure Act 1967 (as amended) are to apply as if an order returning the person for trial had been made by the District Court on the date on which the determination of fitness was made (s.4(4)(c)). The effect of this is that the process will continue to trial.  

 

30.  If the person is found to be unfit, s. 4(5)(c) requires the judge who made the finding to adjourn the proceedings until further order. The judge has a number of further options, depending on the severity of the accused's condition. The person may simply require short-term out-patient treatment, in which case the court can make such orders as appear to be appropriate.

 

31.  In a more severe case, the accused can be committed for in-patient care or treatment in a designated centre, where periodic reviews will be carried out by the Mental Health (Criminal Law) Review Board, in accordance with s.13 of the Act. Where the clinical director of the centre forms the opinion that the person is no longer unfit, the court is to be notified and can then make such order as it thinks proper (s.13). It may make a determination that the person is fit to be tried, in which case the provisions of the 1967 Act are to apply as if the person had been sent forward for trial on the date on which the determination was made (s.4(4)(e)).

 

32.  If the issue of fitness does not arise until after the commencement of a trial, the trial judge has a discretion under s.4(7) to postpone inquiry into it until any time up to the opening of the defence case. The purpose of this provision is to allow for the possibility that, on the evidence adduced by the prosecution, the accused person might be entitled to an acquittal by direction of the trial judge. That entitlement might arise because the prosecution evidence does not prove the actus reus of the offence. It might also arise where the prosecution evidence does not establish a sufficient factual basis for a properly directed jury to infer that the accused person had the necessary criminal intent.

 

33.  A finding of unfitness by the trial court may be appealed (s.7). If the Court of Appeal allows an appeal against such a finding it shall order that the appellant be tried (or retried, in a case where the finding was made after the commencement of a trial). However, in a case where the trial court had postponed the question of fitness in the course of a trial, the appellate Court may form the opinion that the appellant should have been found not guilty by direction. In that latter case it will acquit the appellant. Such a finding, obviously, could only be based on an assessment of all of the prosecution case as adduced and could be based on a view that the evidence was inadequate in respect of the actus reus, or mens rea, or both.

 

34.  Where the Court makes an order for trial or retrial for the offence alleged, "the accused may be tried or retried for an offence other than the offence alleged in respect of which he or she was found unfit to be tried being an offence of which he or she might be found guilty on a charge for the offence alleged" (s.7(4)). This latter provision makes it clear that the trial court may, in the normal way, proceed in respect of any offence of which the accused could lawfully have been found guilty as an alternative to the offence originally charged.

 

35.  Section 4(8) of the Act of 2006 is the main focus of this appeal. In essence, it establishes a route out of the criminal process for a person who is not well enough to contest a trial, in a case where the evidence would in fact be inadequate for the purposes of convicting him or her. It provides as follows:

"Upon a determination having been made by the court that an accused person is unfit to be tried it 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 and 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." (Emphasis added.)

 

36.  Section 4(8) does not expressly state what is to happen if the court does not find a reasonable doubt as to whether or not the accused person did the act alleged. It certainly does not result in a conviction, and there is no mandatory form of order to be made. However, s.4(9) provides that no report of the evidence or the decision in the s.4(8) procedure is to be published until such time, if any, as the trial of the person concludes, or it is decided not to proceed with the trial, or the trial is otherwise not proceeded with. It is implicit, therefore, that the accused remains within the criminal process and is liable to be dealt with under the rest of the provisions of the Act, including the provisions relating to detention, until such time as either a trial can proceed, or it becomes clear that no trial will be held.

 

The facts in the case

 

37.  This case has a complex history dating back to 2010. However, for present purposes only certain aspects are relevant.

 

38.  In May 2010 the appellant was a voluntary patient in a psychiatric hospital when he stabbed a fellow patient. The resulting injury to the victim's spinal cord caused him to be paralysed. The appellant was charged with the offence of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997. This offence is triable on indictment only, in the Circuit Court. A question as to the appellant's fitness for trial arose while the matter was still before the District Court. That court sent him forward to the Circuit Court for determination of the issue, under s.4 (4) of the Act of 2006. Because of subsequent events the question of fitness was not determined in that venue.

 

39.  The victim unfortunately died some eight months after being stabbed. Several months later the appellant was charged with murder, meaning that a fresh District Court process began. Meanwhile the Director of Public Prosecutions entered a nolle prosequi on the charge that was before the Circuit Court. Since concern remained as to the appellant's fitness for trial, he was sent forward by the District Court to the Central Criminal Court under s.4 of the Act of 2006, for the issue of fitness to be determined in that Court.

 

The Central Criminal Court

 

40.  In March 2012 the Central Criminal Court found, on the basis of unchallenged medical evidence, that the appellant was unfit for trial. The proceedings were, accordingly, adjourned until further order. Meanwhile, by order of the court the appellant was committed to the Central Mental Hospital for in-patient treatment.

 

41.  In July 2012 an application was brought before the Central Criminal Court for the holding of a "trial of the facts" pursuant to s.4(8) of the Act of 2006. The judge presiding over the list directed that, although the procedure for such an application was not spelled out in the Act, it should be dealt with by a judge sitting alone, rather than a jury. He also directed, on the suggestion of the prosecution, that a book of evidence and statement of charges should be served.

 

42.  The Director of Public Prosecutions accordingly served a book of evidence, and also lodged an indictment. There were two counts thereon - murder, and the offence of causing serious harm under s.4 of the Non-Fatal Offences Against the Person Act 1997.

 

43.  The inquiry was ultimately held before Butler J. in December 2014. Having heard oral testimony from witnesses including the State pathologist, Butler J. considered that there was a reasonable doubt as to the cause of death. He sought submissions as to the consequences of a finding to that effect.

 

44.  It appears that the parties were agreed that if there was a reasonable doubt as to whether the actus reus of murder had been carried out by the appellant he should be discharged in respect of that offence. It also appears that they were further agreed that the question of causation of death was the key issue in this regard.

 

45.  The Director of Public Prosecutions submitted, however, that even if the Court was left with a reasonable doubt on the charge of murder, it could have no such doubt in relation to the s.4 charge because there was no doubt about the fact that the appellant had stabbed the victim. The Director also contended that even if the s.4 count had not been added to the indictment, it would still have been a valid alternative verdict for a jury to reach pursuant to s. 9(2) of the Criminal Law Act 1997 (as amended by s. 29 of the Non-Fatal Offences Against the Person Act 1997).

 

46.  Section 9(2) of the Act makes provision for alternative verdicts in a murder trial as follows:

9 (2) If, on an indictment for murder, the evidence does not warrant a conviction for murder but warrants a conviction for any of the following offences –

 

(a)   manslaughter, or causing serious harm with intent to do so, or

(b)   any offence of which the accused may be found guilty by virtue of an enactment specifically so providing (including section 7(3)), or

(c)   an attempt to commit murder, or an attempt to commit any other offence under this section of which the accused might be found guilty, or

(d)   an offence under the Criminal Law (Suicide) Act 1993

 

the accused may be found guilty of such offence but may not on that indictment be found guilty of any offence not specified in any of the foregoing paragraphs.

 

47.  The reference to s.7(3) is a reference to the possibility that a person charged with an offence may be found not guilty of that offence but guilty of assisting an offender.

 

48.  The defence argument was that the appellant had not been returned for trial, but for a determination of fitness for trial, and that the process being conducted by the court under s.4(8) of the Act of 2006 was not a criminal trial. In that context, it was contended that there was no lawful basis in the Act of 2006 for either lodging an indictment or adding a count to it, and that the s.4 charge was therefore not lawfully before the Court. The appellant could not be "discharged" on it as envisaged by the Act. It was also argued that the alternative verdict option provided for in s.9(2) of the Act of 1997 was inapplicable in the "trial of the facts" procedure. If the Court had a reasonable doubt as to the alleged act of murder, it should discharge him on that charge and make no further order.

 

49.  In giving his ruling on the matter, Butler J. firstly made the finding that there was a reasonable doubt as to whether the act of the appellant had caused the death or had contributed to it in more than a minimal way. He continued:

 

"There follows a question of what must be done as a result of that finding. The Act provides that the court "shall order the accused to be discharged". The defence, in effect, argues that he should be completely discharged. The evidence tendered in this case related to both Counts 1 (Murder) and Counts 2 (Assault Causing Serious Harm), on the indictment. Should this matter have gone to trial before a jury on the basis of the evidence which I heard, I am satisfied that it would have to have found the accused not guilty by direction on Count 1 but guilty on Count 2. It would make no sense were the legislation to be interpreted on the facts of this case to allow a complete discharge of the accused. I am, therefore, discharging him in respect of the count of murder."

 

50.  It is agreed by the parties that the discharge in respect of the murder charge is equivalent to an acquittal. However, the view taken by Butler J. as to the s.4 charge has had the result that the appellant remains detained under the provisions of the Act of 2006 and in theory will have to stand trial, should he recover sufficiently, on the offence of causing serious harm. His condition has continued, throughout, to be reviewed by the Mental Health (Criminal Law) Review Board and his further detention has been authorised by that body.

 

51.  The appellant's legal representatives then challenged his continued detention in the specified designated centre by way of an application pursuant to Article 40.4.4° of the Constitution. In a judgment delivered on the 25^th March 2015 (see F.X. v Clinical Director of the Central Mental Hospital [2015] IEHC 190, [2015] 2 I.R. 435) Noonan J. summarised the case made by the appellant as follows:

 

"Counsel for the applicant, Mr. Fitzgerald SC, submits that the applicant's detention in the Central Mental Hospital was authorised by the order of the Central Criminal Court of the 16th of July, 2012. At the time that order was made, the applicant was facing a charge of murder only and thus the order was predicated on that charge and no other.

 

He contends that when the applicant was discharged on the count of murder by the Central Criminal Court on the 17th of February, 2015, the original order authorising his detention thereby became spent so that the applicant's continued detention thereafter is unlawful. He says that a determination of unfitness to be tried is offence specific under s. 4. One of the criteria for the determination of fitness is the accused's ability to understand the evidence. Thus he may not be able to understand the complex medical evidence regarding cause of death for the purposes of a murder charge and thus be unfit but in relation to an alternative charge based on simpler evidence he may be able to understand that and therefore be fit. This must mean, it is said, that a determination of unfitness for the purposes of the murder charge cannot be regarded as a determination of unfitness in relation to the s. 4 charge. That charge was never before the Central Criminal Court when the unfitness determination was made. Therefore, Carney J. did not decide to commit the applicant on the s. 4 charge. The court cannot have intended to detain the applicant on the basis of a charge of which it knew nothing.

 

Counsel instances the example of the addition of a theft charge to the murder charge and says that once the murder charge falls away, the applicant's detention could not possibly be justified on the basis of a continuing subsequent theft charge. Whilst the order of the 16th of July, 2012 refers to the adjournment of "proceedings", those proceedings and the murder charge are in effect one and the same thing, there being no other charge at that time.

 

He argues further that the subsequent orders of the Review Board cannot justify the applicant's detention which must derive from the order of the court."

 

52.  Noonan J. held, firstly, that the detention of the appellant in the Central Mental Hospital was authorised by the order of the Central Criminal Court committing him there under the Act. He continued:

 

"That being so, the issue then becomes whether the order of Carney J. of the 16th of July, 2012 is now spent as a result of the acquittal of the applicant on the murder charge. There is no question of there being any invalidity in that order and the applicant does not make that case. Rather he says simply that it has run its course.

 

In my view, when the court considered the applicant's fitness to be tried on the murder count, it must have been alive to the range of possible alternative verdicts that might be brought in by a jury on this count. Clearly one such alternative was a verdict of guilty of the s. 4 offence. I therefore cannot accept the somewhat artificial proposition that the court may have considered the applicant to be unfit to be tried for murder but might well have come to a different conclusion in relation to manslaughter, attempted murder, s. 4 and so forth.

 

To look at it another way, if the court had in fact concluded that the applicant was fit to be tried on the murder charge and the jury went on to convict the applicant of the s. 4 offence, would that conviction then be bad because no determination in relation to the applicant's fitness to be tried for that offence had been made? I cannot accept that it was the intention of the legislature in enacting the 2006 Act that where the fitness of an accused person to be tried for an offence is in issue, the court has to embark upon a separate inquiry in relation to each possible alternative verdict that might be arrived at in order to determine the accused's fitness to be tried for each such alternative offence. It further seems to me that as the original murder charge against the applicant always had the potential to result in his conviction in respect of a range of alternative offences, the original "proceedings" within the meaning of s. 4 (5) (c) must be read as including such alternatives and the proceedings on foot of which the applicant is detained continue in being as long as the s. 4 charge is extant."

 

53.  There followed an appeal, which was dismissed by the Court of Appeal on the 13^th October 2015 in an ex tempore decision given in terms that wholly endorsed the reasoning of Noonan J. It appears that an appeal to this Court was lodged but later abandoned. Meanwhile, the appellant pursued an appeal against the original order made by Butler J.  

 

The Court of Appeal

 

54.  In his appeal against the order of Butler J., it was again argued on behalf of the appellant that as he had been sent forward for determination of fitness on the murder charge only, the Criminal Procedure Act 1967 had no application and there was no provision for the preferring of additional charges. He relied upon the reasoning in State (Williams) v. Kelly [1970] I.R. 271 (where it was held that an indictment could not be preferred in a case where the accused had been sent forward on signed pleas of guilty) for the proposition that an indictment could not be preferred where a person was sent forward for a fitness hearing. Similarly, there was no power to add counts to the matters to be considered in the fitness procedure provided for under the Act of 2006, meaning that the appellant's fitness had not been assessed in respect of a charge under s.4 of the Non-fatal Offences Against the Person Act 1997.

 

55.  The prosecution submitted that s.4(8) of the Act of 2006 was not a penal provision but that, even if it was to be read strictly, the literal interpretation urged by the appellant was inappropriate and the subsection must be read in context. The interpretation relied upon by the appellant was described as overly strict, and as one that would lead to the nonsensical conclusion that the entire proceedings would be nullified if an accused was discharged on a single count. It was argued that the Central Criminal Court had jurisdiction to provide for its own procedures and was, accordingly, entitled to direct service of a statement of charges and a book of evidence.

 

56.  The Court of Appeal saw the issues as being, firstly, whether the Director had been entitled to lodge an indictment and to add counts to it, and, secondly, whether a court considering an application under s. 4(8) of the Act of 2006 could have regard to the alternative verdicts available under s. 9(2) of the Criminal Law Act 1997.

 

57.  On the first issue, the Court concluded that there could be no trial on indictment without a return for trial under the Act of 1967. The appellant had been validly sent forward, but not for trial. The Act of 1967 would not apply unless he was found by the trial court to be fit for trial (in which case he would be treated as if he had been sent forward for trial). In those circumstances it was not possible to prefer a valid indictment and, a fortiori, there was no statutory power to add counts.

 

58.  This ruling has not been appealed by the Director.

 

59.  However, the Court went on to say that for the purposes of the s.4(8) procedure the accused person would be entitled to have the alleged offence set out in some format, whether by way of a statement of charges in the book of evidence or in some other manner. The reality was that doing it by way of indictment would not have presented a problem for the appellant were it not for the fact that the indictment as presented contained a second count.

 

60.  On the second issue, the Court noted that serious harm was a constituent element of the offence of murder, in that every murder involves serious harm. It further noted that any person facing trial on a charge of murder would also be facing trial on the various alternate offences on which a jury could return a verdict. The question was whether it was open to a judge to consider those alternate options in the context of a s.4(8) application.

 

61.  The purpose of the s.4(8) procedure was to determine whether the accused did the act alleged, which, as the Court of Appeal interpreted the section, was the actus reus of murder. On the facts of this case, that included the act of stabbing the victim. It was undisputed that the appellant had stabbed the deceased and there was, therefore, no doubt but that he had committed an act which would constitute an assault pursuant to s.4 if the respondent proved that it was carried out with mens rea. In the Court's view, the phrase "the act alleged" had to incorporate the alternative and necessary offences that might fall for consideration by a jury in due course. While s.9(2) of the 1997 Act used the phrase "on an indictment for murder", the Court did not consider that this precluded consideration by a judge dealing with a s.4(8) application of the alternative offences that were constituent elements of murder. To do otherwise would require an artificial reading of the provisions of the 2006 Act.

 

62.  Accordingly, the Court dismissed the appeal.

 

The Grant of Leave to Appeal

 

63.  By its determination of the 30^th January 2023 this Court found that the appellant had raised a question of general public importance as to whether, on an application pursuant to s.4(8) of the Act of 2006, it was open to the trial judge to consider alternative offences to the charge of murder irrespective of the fact that the accused person had not been charged with any alternative offence.

 

Submissions in the appeal

 

64.  Certain preliminary matters should be noted. Firstly, the parties are agreed that the core issue is the statutory interpretation of s.4(8) of the Act. However, they are in dispute as to whether the issues to be decided in this appeal are, as the respondent claims, the same as those decided by Noonan J. and the Court of Appeal in F.X. v. Director of the Central Mental Hospital. The appellant says that they are not, because the Article 40.4.4° proceedings were based on the contention that the order for his continued committal ceased to exist when he was acquitted of murder. They were not a challenge to that part of Butler J.'s decision that held that there was an extant s. 4 charge against the appellant.

 

65.  Secondly, the parties have at the request of the Court given consideration to the question whether the words "the act alleged" as used in s.4(8) mean only the physical act (or omission) which the prosecution intends to prove was carried out by the accused, or the full actus reus of the offence, to include any legally necessary accompanying circumstances. If it is the latter, further issues may arise in respect of cases where the definition of the crime includes intent or other mental element (for example, possession with intent, or doing an act with intent to defraud).

 

66.  Thirdly, in the light of the decision of the House of Lords in R. v. Antoine [2001] AC 340, [2000] 2 WLR 703 ("Antoine"), the Court asked for submissions relating to the potential effects of the differences between the legislative provisions under consideration in that case and those applicable in this jurisdiction. In Antoine the legislation under consideration required a finding "as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence". The House of Lords held that this meant the actus reus of the offence, to be examined without consideration of any matters concerning intention or mens rea, but that the court dealing with the matter could take into account any objective evidence of defences such as mistake or self-defence. In this jurisdiction, as has been seen, there cannot be any "indictment" in the normal sense and the "act" in s.4(8) is simply "the act alleged".

 

67.  Finally, the Court inquired whether the procedure set out in s.4E of the Criminal Procedure Act 1967 as amended could be utilised in this context. An application under this provision allows an accused person who has been sent forward for trial on indictment to seek a pre-trial order dismissing one or more of the charges against him or her, on the basis that there is not "a sufficient case" to go to trial. The parties are agreed that, on the wording of s.4E, the procedure is available only where the accused person has been sent forward for trial. It cannot be applied in the case of a person sent forward for a determination of fitness.

 

Submissions of the Appellant

 

68.  The appellant agrees with the view of the Court of Appeal that the statutory reference to "the act alleged" means the actus reus of the offence, without reference to mens rea. Reliance is again placed on Antoine in this regard. In the case of murder, the appellant says that the actus reus under the terms of s.4(1) of the Criminal Justice Act 1964 is unlawful killing. In his original submissions, he argued that while it must be proved that the accused caused the death, the actual act or mechanism by which it was alleged that death was caused was not part of the actus reus. On this basis, he contended that the Court of Appeal erred in holding that the stabbing was included in "the act alleged". It was also said to have erred in considering that this meant that the court must consider the offence of causing serious harm as a "necessary" alternative. However, that view appears to have altered in the response to the Court's inquiry, and the appellant now says that "the act alleged" includes the act of stabbing the victim, but also requires the prosecution to prove that the stabbing resulted in death.

 

69.  It is submitted that the subsection is concerned only with the actus reus. Therefore, issues relating to defences such as mistake, self-defence or provocation are relevant only if and insofar as they impinge on the actus reus. The appellant does not see the differences in wording between the Irish and English legislation as being of more than minimal significance.

 

70.  The appellant points out that at common law there was no power to convict of an assault offence as an alternative to murder, and that the power to reach such a verdict was introduced by statutory provision. As the s.4 offence of causing serious harm is a statutory offence brought into being by the Non-Fatal Offences Against the Person Act 1997, he submits that the power to find an alternative verdict depends therefore on the applicability of s.9(2) of the Criminal Law Act 1997. He contends that it is not applicable in the context of the procedure under s.4(8) of the Act of 2006, since the provision is by its plain and unambiguous terms only available "on an indictment for murder" where a "conviction", i.e., a finding that the accused is "guilty", is available. In the s.4(8) process, as the Court of Appeal accepted, there is no indictment and no conviction. Section 4 of the Act is submitted to be, per Charleton J. in K(E) v. Judge Moran [2010] IEHC 23, a comprehensive statutory code. (That statement was made in the context of a judicial review application for an order to prevent a trial, where a medical report to the effect that the applicant would not be fit to plead was one of the matters relied upon. Rejecting that particular argument, Charleton J. held that there was no basis upon which an inquiry in judicial review proceedings could be substituted for the statutory process.)

 

71.  The appellant relies upon the decision of the House of Lords in Antoine and the subsequent decision of the European Court of Human Rights in Antoine v. United Kingdom 2003 ECHR 709 for the proposition that the process under consideration does not involve a criminal trial. It does not, therefore, incorporate the procedures prescribed for criminal trials, which include the procedures for adding counts to indictments and reaching alternative verdicts.

 

72.  Section 7 of the Act of 2006, which provides for appeals against a finding of unfitness to plead, is relied upon insofar as s.7(4) provides that, where an order is made by the Court of Appeal, the accused may be tried or retried for an offence other than the offence alleged in respect of which he or she was found unfit "being an offence of which he or she might be found guilty on a charge for the offence alleged". The appellant submits that this express provision excludes the possibility that s.4(8) tacitly envisages consideration of offences that might have arisen if the accused had stood trial.

 

Submissions of the respondent

 

73.  The respondent now submits that it is open to the Court to find that, since the section does not refer to "the offence charged", or to "the actus reus of the offence charged", the assessment is not concerned with the legal characterisation of the physical acts of the accused but with the "broad" allegation made against the accused, with the question being whether they should be discharged from the criminal process. If this view is correct, then the difference in wording between the legislation under consideration here and that in England and Wales does become significant. The "act alleged" may in some cases be coterminous with the actus reus, as in, for example, a case of assault contrary to s.2 of the Non-Fatal offences Against the Person Act 1997, but in other cases it will not be. In this case the "act alleged" is the stabbing, although the full actus reus of murder would be a stabbing causing death.

 

74.  In this context, the respondent agrees with the appellant that issues of intent, or other matters concerning the mental state of the accused person, should not be considered in the s.4(8) procedure. So, for example, a court could not inquire into the question whether the accused had the intent necessary for offences of possession with intent, or into defences such as mistake, provocation or self-defence. It is noted that the post-Antoine case law in the UK demonstrates the difficulties caused in cases involving offences that include a mental element, cases of secondary liability and cases involving consideration of "objective" evidence giving rise to a defence. The respondent submits, therefore, that the Court should not adopt the Antoine analysis in full or follow the same path as the subsequent case law in that jurisdiction.

 

75.  The respondent does rely upon Antoine in relation to the description therein by Lord Hutton of the purpose of the English legislation as being to distinguish between a person who has not in fact carried out the actus reus of a crime and a person who has carried out an act which, if done with mens rea, would constitute a crime. Section 4(8) is said to have a similar purpose - to protect a person who is not fit to stand trial but who may be innocent of any wrongdoing.

 

76.  It is asserted that the appellant's interpretation of the provision is nonsensical. Even if the argument made on his behalf were to be found by this Court to be correct, there would still be nothing to prevent the Director from charging him now with an offence against s.4 and proceeding further against him.

 

77.  The respondent agrees with the appellant that the s.4E procedure is not available in this context. However, it is suggested that s.4E of the Act of 1967and s. 4(8) of the Act of 2006 are aimed at the same mischief. They are both intended to ensure that accused persons are not prosecuted to the point of a jury trial if there is insufficient evidence that they committed a crime. It is noted that in neither case does an unsuccessful application by the accused result in either a conviction or the denial of an opportunity for a full jury trial of the offences.

 

R. v. Antoine and subsequent developments

 

78.  As there are no relevant authorities in this jurisdiction, other than the previous judgments in respect of this appellant, it is desirable to give close consideration to the position in the neighbouring jurisdiction of England and Wales.

 

79.   The relevant legislation at the time of the decision in Antoine, the leading authority, was inserted into the Criminal Procedure (Insanity) Act 1964 by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. It provided for a procedure that was mandatory in any case where a finding had been made that the accused was unfit for trial. A jury was to determine whether they were satisfied, "as respects the count or each of the counts on which the accused was to be or was being tried", that he "did the act or made the omission charged against him as the offence". Where the jury was so satisfied, the judge was required to choose an appropriate disposal order from options ranging from absolute discharge to hospitalisation without restriction of time.

 

80.  Prior to the 1991 amendment the Report of the Butler Committee on Mentally Abnormal Offenders (1975) (Cmnd. 6244) had recommended that the proposed "trial of the facts" should be conducted to the fullest extent possible, having regard to the medical condition of the defendant.

 

"The object of this proposal is primarily to enable the jury to return a verdict of not guilty where the evidence is not sufficient for a conviction. If a normal verdict of not guilty is to be possible, the normal rules of evidence and burden of proof must apply. It follows that on the trial of the facts the judge should direct the jury that if they are not satisfied that the defendant did the act with the necessary mental state they must return a verdict of not guilty . . . the issues to be established by the prosecution include the defendant's state of mind. If this were not so, the defendant would not obtain his verdict of not guilty even though there was insufficient evidence that he had the requisite intention or other mental state for the crime — indeed, he would not obtain it even though it was clear that the affair was an accident. This would clearly be unsatisfactory."

 

81.  It was thought for some time that the new procedure did indeed impose a burden on the prosecution to prove both the actus reus and the mens rea of the offence. Thus, in R v Egan (Michael) 1996 EWCA 973, [1998] 1 Cr. App. R. 121, an appellant charged with theft argued that, in order for the jury to be satisfied that he committed "the act alleged", it was essential for the prosecution to prove all the ingredients of the offence which was originally alleged against him. In that context, he submitted that he should have been permitted to call psychiatric evidence to the effect that he did not have the capacity to form a dishonest intent. The Court of Appeal agreed to a certain extent, holding that the phrase meant "neither more nor less than proof of all the necessary ingredients" of what would be the offence of theft. However, since the defence actually mounted by the appellant had, at all times, been that he had not taken the item alleged to have been stolen, the appeal was dismissed. The result, therefore, was a finding that if the defendant had raised, and the jury had accepted, an argument that his mental condition meant that he could not form the intent, then he would have to have been acquitted and could not have been committed for hospital treatment.

 

82.  The decision in Egan was doubted by a differently composed Court of Appeal in Attorney General's Reference No 3 of 1998 [1999] 3 WLR 1194. In that case, there was compelling evidence that the accused had suffered from insane delusions at the time of the offence charged against him, but he was fit to plead and stood trial. The prosecution and the defence agreed that he had been insane at the relevant time, but asked the trial judge for a ruling as to what the prosecution had to prove in order to establish that he "did the act or made the omission charged". (It will be recalled that this was a necessary foundation for a verdict of insanity.) The judge considered that he was bound by the authority of Egan to rule that the prosecution had to prove all of the relevant elements of the offence, including mens rea. The evidence given thereafter was to the effect that the accused had been unable to form a criminal intent. The judge therefore felt bound to direct the jury to acquit, rather than to consider an insanity verdict, on the basis that there was no evidence that the accused had the necessary criminal intent.

 

83.  The question asked in the Attorney General's reference was in the following terms:

 

"What has to be proved when an inquiry is embarked upon under the Trial of Lunatics Act 1883, to determine whether the Defendant "did the act or made the omission charged?"

 

84.  The Court of Appeal saw this as asking, in summary, whether, if insanity had been established, the prosecution was required to prove both the actus reus and the mens rea of the offence charged against the defendant, or something less, and if so what that "something less" was.

 

85.  The judgment (delivered by Judge LJ) noted that, although the form of the special verdict had been amended by intervening legislation, the statutory framework of the Trial of Lunatics Act 1883 remained. It found the alteration between the Criminal Lunatics Act of 1800 and the Act of 1883, whereby the words "did the act or made the omission" replaced "committed the offence", to be material. The original phrase appeared to encompass the relevant act, together with the necessary intent. By contrast, the words "act" and "omission" did not readily extend to intention. This change of language, apparently quite deliberate, had been left unamended for over a century and for all present purposes remained in force.

 

86.  The Court also observed that, in this context, Felstead remained good law. The case highlighted two distinct features of insanity cases - that a verdict of insanity meant that proof of mens rea was superfluous, and that but for his insanity the defendant would have been found guilty of the offence. In Felstead itself, it would not have been sufficient for the jury to have been satisfied merely that the defendant caused the victim's wound.

 

87.  The Court also considered the issue in the context of the legislation providing for trials of the facts in cases of unfitness. It observed that the language of the legislation, requiring the jury to decide whether it has been proved that the defendant "did the act or made the omission charged against him as the offence", echoed the 1883 Act. Unless the actus reus of the alleged offence was proved then a verdict of "acquittal", not a special verdict, would follow.

 

"Therefore, whether the case is proceeding on the ground of insanity or unfitness to plead, by statute, the issue is identical, that is, whether or not the defendant did the act or made the omission charged. Such acts or omissions must be examined in the context of the offence alleged, but nothing in the legislation suggests that if the jury has concluded that the defendant's mental state was such that, adapting Lord Diplock's observation in Sullivan, his mental responsibility for his crime was negatived, it should simultaneously consider whether the necessary mens rea has also been proved. These mutually incompatible features may of course require examination by a jury when, contrary to the defence plea of insanity, the Crown is nevertheless seeking to establish guilt of the offence charged, but once it is decided that the defendant was indeed insane at the time of his actions, in accordance with Felstead, mens rea becomes irrelevant.

 

...The pattern [of the legislation] is entirely consistent with an overall framework designed to ensure, first, that those who are legally insane should not be deprived of their liberty by or, nowadays, made subject to orders of the courts exercising criminal jurisdiction, unless they have behaved in a way which constitutes the actus reus of a criminal offence and, second, if they have, to protect the public under a wide range of powers in which the focus is treatment, sometimes in the community, sometimes, where necessary, in the interests of public safety, in conditions of security."

 

88.  Accordingly, the Court doubted the correctness of Egan. It appeared to have been decided per incuriam and in any event had no application to insanity cases. The trial judge had therefore been wrong to follow it.

 

89.  The Court's conclusions on the question asked in the reference are worth quoting in full:

 

 Despite the potential difficulties illustrated by counsel in their arguments, the advantages of certainty, and the impossibility of providing a definitive answer to every conceivable case which may arise, in our judgment the criminal law should distinguish between providing for the safety of the public from those who are proved to have acted in a way which, but for their mental disability, would have made them liable to be convicted and sentenced as criminals, and those whose minds, however disturbed, have done nothing wrong. So far as the criminal courts are concerned, we do not accept that public safety considerations can properly be deployed to justify the making of orders against those who have done nothing which can fairly be stigmatised as a criminal act. Our concerns can be readily illustrated by practical examples. A person with mental disability, swimming in an over-crowded public pool, should not be at risk of the consequences of a finding of insanity when the alleged indecent touching of another swimmer may well have been accidental, or non-deliberate. On the other hand, where an apparently deliberate touching takes place in what on the face of it are circumstances of indecency, the individual in question (arguing that he was insane at the time) should not avoid the appropriate verdict on the basis of his own mistaken perception, or lack of understanding, or indeed any defences arising from his own state of mind.

 

The difficulties are, if anything, greater where the alleged crime is more serious. Where on an indictment for rape it is proved that sexual intercourse has taken place without the consent of the woman, and the defendant has established insanity, he should not be entitled to an acquittal on the basis that he mistakenly, but insanely, understood or believed that she was consenting. But when an individual surrounded by a group of much larger, aggressive and armed youths, strikes out and lands a blow on one of them who unfortunately falls to the ground sustaining a fatal head injury, it would be unjust if he were prevented from inviting the jury to consider that his violence might have been lawful, merely because, as a result of insanity, he believed that the group of youths was a mob of devils attacking him because (as the defendant in the present case believed) he was Jesus Christ. Excluding this individual's own damaged mental faculty at the time, the jury might conclude that although he caused death, his actions were not unlawful, and so did not constitute the actus reus of murder, or manslaughter.

 

The answer to the question posed by the Attorney General is that when determining whether "the Defendant did the act or made the omission charged" for the purposes of the Trial of Lunatics Act 1883, and assuming insanity,

 

(a) The Crown is required to prove the ingredients which constitute the actus reus of the crime. Although different language is used to describe this concept, for present purposes, we respectfully adopt the suggestion in Smith & Hogan, Criminal Law, 8th Edition, at page 28, that it must be shown that the defendant:

"has caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law ......... "

 

(b) The Crown is not required to prove the mens rea of the crime alleged, and apart from insanity, the defendant's state of mind ceases to be relevant."

 

90.   In Antoine, the House of Lords endorsed the Attorney Generals' Reference No 3 analysis, and Egan was held to be wrong. (As will be seen, however, the House of Lords did not wholly agree with the Court of Appeal's solution in defining the "act" concerned and preferred the traditional concept of the actus reus.) The appellant in Antoine, who had been charged with murder and found unfit to plead, wished to raise and seek to prove the partial defence of diminished responsibility in the "trial of the facts" procedure. He argued, on the basis of Egan, that the "act" included the mental element of the offence. On that argument, if he had suffered from diminished responsibility at the time then it would follow that he did not do the act of murder.

 

91.  The narrow answer to the question certified for the House of Lords was that diminished responsibility could only be raised in a trial in which the accused was otherwise liable to be convicted of murder. The trial of the facts process could not result in a conviction, and therefore the issue could not be raised in that context. However, at the request of counsel for both parties, the House of Lords went further in its analysis of the relevant provisions and considered the question whether it was necessary for the prosecution, in a trial of the facts after an unfitness finding, to prove both the actus reus and the mens rea of the offence.

 

92.  The sole opinion in the appeal was delivered by Lord Hutton. It was held that by using the word "act" and not the word "offence" Parliament had made it clear that the jury was not to consider the mental ingredients of the offence. It was observed that the wording of the relevant legislation was the same as that of s. 2(1) of the Trial of Lunatics Act 1883 - the question in a trial of the facts was whether the defendant "did the act or made the omission charged." It was established that the word "act" did not include intent.  

 

93.  Lord Hutton was critical of the recommendation of the Butler Committee, on the ground that where a person was unfit to be tried in the normal way because of his mental state, it would be "unrealistic and contradictory" that in reaching its determination the jury should have to consider what intention that person had in his mind at the time of the alleged offence.

 

94.  The purpose of the procedure was seen as being to strike a fair balance between the need to protect a defendant who had, in fact, done nothing wrong and was unfit to plead at his trial, and the need to protect the public from a defendant who had committed an injurious act which would constitute a crime if done with the requisite mens rea. The section struck this balance by distinguishing between a person who had not carried out the actus reus of the crime charged against him and a person who had carried out an act (or made an omission) which would constitute a crime if done (or made) with the requisite mens rea.  

 

95.  It was acknowledged that it could be difficult to distinguish precisely between the actus reus and the mens rea of an offence. In Smith & Hogan, Criminal Law, 9th ed., p. 28 it had been observed that sometimes a word that described the actus reus, or part of it, implied a mental element. However, Lord Hutton adopted the view of Lord Simon of Glaisdale, in Director of Public Prosecutions for Northern Ireland v. Lynch [1975] AC 653 that, despite the "chaotic terminology" relating to the mental element in crime, the terms "actus reus" and "mens rea" justified themselves by their usefulness.  "Actus reus" meant such conduct as would constitute a crime if the mental element involved in the definition of the crime was also present (or, more shortly, "conduct prohibited by law"), while "mens rea" meant such mental element, over and above volition, as was involved in the definition of the crime.

 

96.  Lord Hutton reserved his position in respect of the availability within the trial-of-the-facts procedure of the defence of provocation, and also in relation to cases where a person was charged as a secondary party rather than as a principal.

 

97.  The House of Lords went on to give guidance on another question raised in the hearing, as to whether the jury could consider evidence indicating that the accused had an arguable defence that he could have raised in a trial were he not under a disability. The defences considered in that context were self-defence, mistake and accident. As Lord Hutton acknowledged, the difficulty here was that such defences would almost invariably involve some consideration of the mental state of the defendant. The conclusion reached was that if there was objective evidence (as opposed to an invitation to speculate) which raised the possibility of one of these defences then the jury should not find that the defendant did the "act" unless it was satisfied beyond reasonable doubt on all the evidence that the prosecution had negatived that defence.  

 

"For example, if the defendant had struck another person with his fist and the blow had caused death, it would be open to the jury under section 4A(4) to acquit the defendant charged with manslaughter if a witness gave evidence that the victim had attacked the defendant with a knife before the defendant struck him. Again, if a woman was charged with theft of a handbag and a witness gave evidence that on sitting down at a table in a restaurant the defendant had placed her own handbag on the floor and, on getting up to leave, picked up the handbag placed beside her by a woman at the next table, it would be open to the jury to acquit."

98.  The appellant in Antoine subsequently brought a complaint before the European Court of Human Rights, claiming a violation of his fair trial rights under Article 6 of the Convention on the ground that he had not been able to participate fully in the trial of the facts. The ECtHR rejected the claim as manifestly unfounded, holding that the statutory procedure was not a trial and did not concern the determination of a criminal charge. While an accused person could be acquitted, he could not be convicted. It was a mechanism to protect persons wrongly accused of participation in purported offences.

 

99.  The decision in Antoine has not been entirely uncontroversial and has presented difficult questions in some subsequent cases decided in the Court of Appeal of England and Wales.

 

100.                      In R. v. Grant [2001] EWCA 2611, the accused had been found unfit to plead on a charge of murder. She wished to raise, in the trial of the facts, the defences of lack of intent and of provocation. The Court of Appeal noted that the distinction between actus reus and mens rea was not always clear-cut, and that it had been further "clouded" by the acceptance in Antoine that the defences of accident, mistake and self-defence could be considered. The Court held that it was nonetheless clear that lack of intent could not be raised. It fell squarely within the territory of mens rea, and Antoine had determined that mens rea was not to be considered in the particular procedure. Similarly, provocation could not be raised in the procedure because it could only be considered by a jury where they were sure that all the other elements of murder, including mens rea, had been proved. The defences that had been held by the House of Lords to be available "all related to what their Lordships regarded as the actus reus of murder". By contrast, it was clear that their Lordships did not consider it open to the jury to consider issues of mens rea under s.4A(2) whatever the circumstances; and within that were included the issues of lack of specific intent and diminished responsibility. For the reasons already given, the same must apply to the defence of provocation."

 

101.                      In R. v M [2003] EWCA 357 the accused was charged with murder in circumstances where the prosecution could not prove which of a number of youths had stabbed the victim. The case thus raised the problem identified by Lord Hutton as to the necessary proofs, in a trial on the facts, where the accused party might not have been a principal. The Court of Appeal held that the trial judge had been correct in directing the jury that, for the purposes of deciding whether the defendant did the "act" of murder with which he was charged, they must be satisfied either that he was himself the stabber, or one of them, or that he was a person who took part in what he knew at the time was a knife attack. If the jury, upon the basis of the evidence before them, were satisfied that either was the case, then, for the purposes of s.4A(2), the act of murder was properly established. It was accepted that this required an examination of the state of mind of the accused.

"To that end, the jury must decide as a matter of fact (a) whether there was a common purpose, (b) what it was, (c) whether the act of the actual perpetrator went beyond the common purpose by being radically different from any act which the defendant realised might be done in the course of the attack. Put thus, for the jury to determine whether or not the defendant has done the act of murder for the purposes of s.4A(2) involves in part an investigation of his state of knowledge. Equally, however, the three elements which require to be decided are, in the absence of evidence from the defendant, susceptible of determination upon an objective basis by inference from the facts presented in evidence and it is upon that basis that they must be dealt with under the section."

 

102.                      This analysis would, therefore, require the prosecution to prove, within the trial of the facts, a sufficient factual basis for the drawing of inferences as to the existence of knowledge and purpose on the part of the accused.

 

103.                      The difficulty in distinguishing between what the Law Commission termed the "external" and the "fault elements" also became apparent in relation to other offences. Thus, in R v B(M) [2012] EWCA Crim 770 the Court of Appeal held that in order to prove that the defendant "did the act" for the purposes of the offence of voyeurism, the prosecution was required to prove as an external element that the defendant's purpose was to obtain sexual gratification. However, it did not have to prove that the defendant knew that the person observed did not consent - that was a fault element.

 

104.                      In R(Young) v. The Central Criminal Court [2002] EWHC 548, [2002] 2 Cr.App.R 12, the defendant was an investment adviser charged with dishonestly concealing material facts in relation to an investment. It was held that his intentions as to future conduct were facts and his concealment of them was part of the act involved in the offence. Those matters could be inquired into in the trial of the facts. However, the question whether the concealment was dishonest was a fault element and could not be.

 

105.                      A report by the Law Commission in 2016 analysed the reasoning in Antoine and saw it as problematic in relation to certain other offences. It instanced possession offences, given that the concept of possession can go beyond mere physical control to involve a mental element. The Commission considered that unfit defendants could be at a real disadvantage, if the courts were to conclude that the "act" of possession could be proved without consideration of their mental state. Similarly, the liability of aiders and abettors, or of those accused of inchoate offences, could be difficult to assess since such offences will often depend upon what the accused person knew about the actions or proposed actions of other persons.

 

106.                      Writing in 2018, the authors of Smith, Hogan, Ormerod's Criminal Law (15^th ed.) said of Antoine that it created problems by the presumption that all offences divide neatly into elements of actus reus and mens rea that could readily be identified. They are critical of what they consider to be a degree of confusion in the judgment, in relation to, in particular, the defences that could be raised, observing that the "defences" of mistake and accident are in fact denials of mens rea, while self-defence has a "vital" mental element.

 

Discussion and conclusions

107.                      It seems to me that the starting point must be that s.4(8) of the Act of 2006 is a remedial provision. The mischief to be remedied was the previous absence of any exit route for persons, charged with a criminal offence, who were unfit for a criminal trial and thus were unable to establish their innocence or get out of the regime established for the criminally insane. The basic principle of the procedure now provided is, therefore, that if the prosecution cannot prove beyond reasonable doubt that the accused person has done an act capable of grounding a criminal conviction they are to be discharged. However, if the trial judge is not left with any reasonable doubt, the matter must remain within the criminal justice system to be resolved, when possible, in a full trial.

 

108.                      In my view, determination of the process-related issue raised in this appeal turns on the question what it means to say that the accused "did the act alleged". The efforts to answer that question in the line of jurisprudence starting with Antoine have, in turn, raised further questions and it may be that it is simply not possible to find satisfactory answers for all of them. This may be inevitable. As it was put in the joint judgment of O'Donnell CJ and O'Malley J in C.W. v Minister for Justice [2023] IESC 22 (at para. 17):

 

"Our criminal law was not developed pursuant to a single unifying theory, and when in 1937 the Constitution guaranteed by Article 38 that trials in criminal matters should be in due course of law, it did not impose any such theory. Instead, the criminal law is an eclectic mix of common law and statutory provisions, containing an array of offences, and defences, comprised of different elements, and requiring different proofs which are, moreover, capable of being established in different ways. Article 38 of the Constitution does not, therefore, require offences to be formulated in conformity with a single pattern in relation to either the definition of an offence or the manner in which it can be proved."

 

109.                      Criminal lawyers are used to the terms "actus reus" and "mens rea" but those terms can have differing meanings in differing contexts, and it is far from obvious that they must necessarily be deployed in resolving the issue to be determined by the Court in this appeal. It may ultimately be, therefore, that it is not possible to define, in terms capable of being applied to all offences, the distinction between the "act" with which the legislation is concerned and the other elements of an offence.

 

110.                      It appears open to the Court to adopt one of a number of interpretations of the word "act", none of which are free from difficulty. Bearing in mind the general principle of statutory interpretation that a word should be given the same meaning wherever it appears in an Act unless there is clear internal evidence that it should not, the problem is that I do not see that it is possible to interpret the word in the same way in each of the sections set out and discussed above.

 

111.                      The first possibility is that the "act" encompasses all of the ingredients of an offence including the requisite mens rea. This was the preferred option of the Butler Committee and the view of the Court of Appeal of England and Wales in Egan. This view might also, at first glance, appear to be supported by s.6 of the Act and also by subss. (6), (7), (8) and (10) of s.8. Section 6 certainly requires the word "act" to be interpreted as including mens rea, since the defence of diminished responsibility does not arise unless the accused person is liable to be convicted.

 

112.                      As outlined above, a person who has been found not guilty by reason of insanity may appeal against that finding and contend inter alia that it was not proved that he or she committed the "act" in question, or that he or she was not, at the time when the "act" was committed, suffering from a relevant mental disorder, but it does not appear possible, on the face of it, for an appellant to argue that, without reference to any mental disorder, they acted without unlawful intent. That might suggest that in that section the word "act" includes mens rea, such that a person who claims that they acted on the basis of a mistake, or in lawful self-defence, would not have a full right of appeal against a verdict of insanity.

 

113.                      However, I agree with the view in Attorney General's Reference No 3 of 1998 that the Egan analysis involved disregarding the history of the defence of insanity and the significance of the change in wording of the various statutory provisions. As observed in Antoine, it also involved disregarding the intent of the legislature that a court should, where a person was acquitted of a crime by reason of mental illness, bring in a verdict to that effect rather than a straightforward acquittal, and should have the power to detain that person if such was appropriate and necessary. Moreover, the Egan interpretation would lead, in effect, to the necessity for something very close to a full trial in a s.4(8) hearing (albeit it could not lead to a conviction). This is inconsistent with the view that it would be unfair to subject a person to a full trial that would include examination of his or her state of mind, when by definition they may be incapable of giving instructions in relation to it.

 

114.                      The Antoine interpretation deals to a large extent with this difficulty - the phrase was held to import the actus reus of an offence and, therefore, mens rea is not a matter for consideration in the procedure. The disadvantage here is that while this analysis can work well in the case of certain offences it has clearly caused problems in others. A great many commonly prosecuted crimes in fact include a mental element in the definition of the actus reus, such as a requirement of intent (e.g., possession of a controlled substance with intent to supply). Crimes of dishonesty, including theft (dishonestly appropriating property without the consent of its owner and with the intention of depriving the owner thereof) appear problematic. The solution adopted by the English courts appears to be to treat an element of that kind as a question of fact in some cases and as going to mens rea in others, but I find it difficult to discern a clear principle. It is hard to see why intent should be seen as a question of fact, while dishonesty is a matter of mens rea. It is also hard to see that the analysis in R. v. M. is all that different to the direction that would be given to a jury in a full trial involving joint enterprise - that they would have to be satisfied that the accused shared a common purpose with the group, and had the requisite knowledge.

 

115.                      Another possible interpretation is that the word "act" simply means a physical action (or omission) by the accused that, if accompanied by mens rea, could ground a finding of guilt. This has the merit of simplicity but, apart from the fact that there is no authority for it, could, it seems to me, render the s.4(8) procedure all but useless to most of the people it is meant to protect. Many of the physical actions involved in the commission of a criminal offence are wholly innocuous in the absence of evidence involving the surrounding circumstances and, very often, the consequences of the action. Such an interpretation would, in reality, only assist where the representatives of the accused can establish a positive defence such as an alibi or can demonstrate a strong possibility of mistake on the part of eyewitnesses as to who did what. Similarly, obvious problems arise in cases where the accused is charged as a secondary party (aiding and abetting, assisting an offender and so on).

 

116.                      It is apparent from this discussion that any attempted definition of "the act alleged" is capable of throwing up unanticipated problems and anomalies. My preference, in this context, would be to avoid use of the term actus reus and to adopt for the purposes of a s.4(8) hearing the definition approved by the Court of Appeal of England and Wales in Attorney General's Reference No.3. I would hold that in a trial of the facts under s.4(8), where the question is whether the accused did "the act alleged", it must be shown that, without reference to intent, the act(s) of the accused caused a certain event, or that responsibility is to be attributed to him or her for the existence of a certain state of affairs, which is forbidden by criminal law. The chief advantage of this approach is, I think, that it can avoid entanglement with the technical definition of the actus reus of a specific offence.

 

117.                      On the facts of this case, this interpretation means that the Central Criminal Court was right to hear and determine the issue as to whether the appellant "caused a certain event" - that is, the death. Having regard to the purpose of the provision, it would be wrong that a person should be detained indefinitely on a serious charge that could not be proved against him. The second part of the formulation - that responsibility is to be attributed to him or her for the existence of a certain state of affairs, is apt, in my view, to cover offences such as possession. In other words, on the evidence adduced, is responsibility to be attributed to the accused for the fact that contraband items were found (on his person, or in his close vicinity, or in his dwelling, etc)?

 

118.                      However, this formulation should not be seen as set in stone or treated as quasi-legislation. In particular, it is likely to need further adaptation to deal with cases of attempt, or secondary liability. There may well be other cases that will, at best, be an awkward fit. Furthermore, difficult questions may remain in relation to the extent to which the defence should be entitled to make out a positive defence such as self-defence, or accident. Since the procedure is clearly not intended to deal with the question of mens rea, it cannot be utilised for a defence based on lack of intent. Further, matters such as provocation or diminished responsibility arise only in cases where the full actus reus and mens rea of the offence have been established. Similarly, the s.4(8) procedure is of no assistance if the defence is in fact that the accused was insane at the relevant time. Further, I would not see it as an appropriate context in which to raise a defence of mistake (the effect of which, normally, is to negative mens rea).

 

119.                      It is arguable (but I do not intend to be taken as deciding) that the question whether responsibility should be attributed to the accused might cover the examples given by the Court of Appeal and the House of Lords of the man who, as a matter of objective fact, (no matter what his subjective state of mind) was defending himself against attack when he injured an assailant, or who simply caused an event by accident.

 

120.                      The context in which the issues in this appeal arise is that an accused person has been sent forward by the District Court, to the court that has jurisdiction to try the offence with which the person has been charged, for determination of the question whether they are fit for trial. The trial court then has jurisdiction not only to try that question but to take the further and consequential steps set out in the Act including proceeding to trial in the normal way should the accused be found to be fit.

 

121.                      Capacity to be tried is assessed by reference to the criteria set out in the Act, which include the ability to instruct legal representatives. In order to be able to give instructions, the person must be able to understand what a trial entails, the conclusion it might come to and the legal advice as to any available options.

 

122.                      In the case of any offence in respect of which alternative verdicts are available, understanding what the trial entails will include understanding the possibility of a conviction for a lesser offence. It may often arise that the defence will negotiate for the acceptance of a plea of guilty to such an offence. Even where such offers are rejected, it is open to accused persons to make their position clear to the court of trial by declaring themselves guilty of that lesser offence on arraignment. It is entirely irrelevant that the offence pleaded to was not the subject of a specific charge before the District Court and was not included on the indictment.

 

123.                      In those circumstances, the "trial" for which the accused person must be fit is a process which can have many different possible outcomes including a conviction for an offence which was not sent forward by the District Court.

 

124.                      The operation of the s.4(8) procedure must, in my view, be seen as located in that context and that process. It is relevant that there is no further consequence of a finding by a court, having heard a s.4(8) application, that there is no reasonable doubt that the accused did the act alleged - it is not a conviction, it does not render the accused liable to any penal sanction, it does not (in contrast to the English legislation) entail any particular form of order as to detention and it preserves the right to a full trial. There could be no question of any form of estoppel arising from the finding, such as might affect the possibility that the accused could be acquitted in a subsequent trial. It simply means that the accused person is not discharged and that the proceedings are not at an end. In other words, it does not alter the objective of the criminal process. That objective remains as it was - a trial in which the guilt or innocence of the accused will be established.

 

125.                      The issue before the Court is the effect of the finding by the court of trial, in the circumstances of this case, that there was a reasonable doubt as to the charge of murder. To recap briefly, the appellant has argued that he was not sent forward on any other charge; that the procedure does not allow for the preferment of an indictment and, still less, for the addition of counts to the indictment; that the s.4 charge was not lawfully before the court and the alternative verdicts option was not available.

 

126.                      In my view, while the appellant is correct on each of those matters, they do not render what has been done in this case unlawful. The appellant was not sent forward by the District Court "on a charge", such that no other charge could be considered - he was sent forward to the court that would have jurisdiction to try him on that charge, with the first task of the trial court being to determine whether he was fit for trial. If he had been found fit, the case would have proceeded as if he had been sent forward for trial. That would have meant that an indictment would have been lodged, with a charge of murder. It would have been implicit in that process, to the knowledge of both parties and no doubt the subject of specific advice to the appellant, that he could have offered or might be convicted of a lesser charge including a charge under s.4 of the Non-Fatal Offences Against the Person Act 1997. The fact that he was found unfit, at a particular point in time, could not have the effect of altering the parameters of any future trial that might be possible.

 

127.                      It is now accepted by the prosecution that the procedure under s.4(8) does not permit of an indictment as such. However, in my view the Court of Appeal was certainly correct in observing that the appellant was entitled to have some formal document setting out what was alleged against him, along with the evidence proposed to be adduced.

 

128.                      It is, similarly, correct to say that the alternative verdicts procedure is only available in a trial. However, quite simply, the trial judge in this case did not reach (and could not have reached) a verdict against the appellant - that is, he did not convict him.

 

129.                      Since the appellant had been found unfit, the court exercised its undoubted jurisdiction under the Act to detain him in a suitable treatment facility. He then had the option, which he exercised, of seeking a hearing under s.4(8) of the Act of 2006. The engagement with that procedure by the trial court was for the purpose of ensuring that the appellant was not retained within the criminal justice system if, in fact, the prosecution could not prove a case against him. It was found that the prosecution could not prove that the appellant's actions caused death, and therefore he was discharged in respect of the murder charge. However, it is in my view simply not possible that such a finding could have the effect of closing off all other possible outcomes of a trial. Applying the definition that I have adopted, it was certainly the case that the act of the appellant (and there was only one act in question) caused an event forbidden by law - the infliction of a serious injury.

 

130.                      It would be otherwise if, in a hypothetical case, the appellant's representatives had been in a position to prove an alibi but on the facts of this case it was entirely appropriate for the trial judge to take account of the fact that an acquittal on the murder charge manifestly would not dispose of all the possible verdicts that might be reached in a trial, and to find that it would not be correct to discharge the appellant completely.

 

131.                      In the circumstances I would dismiss the appeal.