United Kingdom Journals
You are here: BAILII >> Databases >> United Kingdom Journals >> Boland
URL: http://www.bailii.org/uk/other/journals/WebJCLI/1997/issue4/boland4.html
Cite as: Boland
[New search] [Help]
The Criminal Justice (Mental Disorder) Bill 1996
Faye Boland, BCL (NUI), PhD,
Lecturer
The Faculty of Law
The University of Liverpool
Copyright © 1997 Faye Boland.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
Summary
In 1996 the recently elected Irish Government, then in opposition, called for legislation reforming the Irish insanity defence. Shortly afterwards, their spokesman on justice, John O'Donoghue (now the Minister for Justice), introduced a Private Members Bill, the Criminal Justice (Mental Disorder) Bill 1996 (the Bill). The Bill has the support of the Government, which seems likely to enact it at a future date.(1) This article will examine the Bill with a view to discovering to what extent it is likely to abate the current controversy which surrounds the Irish insanity defence.
Contents
A new test of insanityDetention
Uncontested pleas
A new test of insanity
The Irish insanity defence comprises the McNaghten Rules and a control test which asks whether the accused was debarred from refraining from committing the act because of a defect of reason due to mental illness (Doyle v Wicklow County Council (1974) 55 IR 71). In view of the considerable criticism which has been directed at both the Rules and the control test (Boland 1995, p 193), it may come as a surprise to see the recently elected Irish Government's proposal to maintain both of these tests in the Bill. Section 4(1) requires a finding of not guilty by reason of mental disorder where the Jury or the District/Special Criminal Court (where applicable) finds that the defendant
(a) committed the act alleged
(b) was suffering at the time from mental disorder and
(c) the mental disorder was such that he should not be held responsible for the act by reason of the fact that-(i) he did not know the nature and quality of his act,
(ii) he did not know that what he was doing was wrong, or
(iii) he was unable to refrain from committing the act.
Although disguised as a justly responsible test this is no more than a reformulation of the McNaghten and control tests. Despite the presence of mental disorder, a finding of non-responsibility is limited to the three current criteria required for a finding of insanity.
Mental Disorder was defined in Section 1 as meaning mental illness, mental handicap, personality disorder or any disease of the mind but does not include disorder arising from intoxication. The inclusion of psychopathic personality disorder in the insanity defence has proved extremely controversial in the United States (Boland 1996a, p 57). It is commonly asserted that a psychopath is one who exhibits an abnormality only in the repetitious performance of antisocial or criminal acts (La Fave and Scott Jr.1986, p.439). This led the American Law Institute, when drafting its Model Penal Code, to exclude psychopathy from the test of insanity. It is therefore surprising to see psychopathy included in the proposed insanity defence. Many commentators feel that the psychopath is less responsible for his acts (see the Report of the Royal Commission on Capital Punishment 1949-53, para 401), but there is little support for the view that he is non-responsible.(2) It is unclear whether epilepsy, sleepwalking and other conditions which have an internal cause, which warrant a finding of insanity in Great Britain (R v Sullivan [1983] 2 All ER 673; R v Burgess [1991] 2 All ER 769), would fall within the revised Irish insanity defence; Mental Disorder in Section 1 includes "any disease of the mind" but the section provides no explanation as to what constitutes "disease of the mind". Finally, the section excludes disorder arising from intoxication. It is unclear whether this means disorder arising solely from drunkenness or whether it excludes later stages of alcoholism and delirium tremens and latent mental disorders which become manifest when intoxicants are consumed.
A recent Irish government White Paper on Mental Health has proposed replacing the present civil committal criterion i.e. that the person is of "unsound mind" with a requirement that he/she should have a mental disorder. While the use of identical terminology for both purposes is commendable, mental disorder for the purposes of civil committal is specifically not to include personality disorder, unlike mental disorder for the purposes of the insanity defence. Two differing definitions of mental disorder may cause confusion on the part of medical witnesses and in the writer's opinion it would have been preferable were psychopathic personality excluded altogether from the Bill's test of insanity, not just as a means of achieving uniformity but also for the purpose of recognising the psychopath's partial responsibility.
Detention
It has been argued elsewhere that the regime of compulsory hospitalisation which presently follows a finding of insanity under the Irish control test may be in breach of the European Convention on Human Rights (Boland 1996b). To be lawfully detained as "a person of unsound mind" under Article 5(1)(e) of the European Convention, "no one may be confined as "a person of unsound mind" in the absence of medical evidence establishing that his mental state is such as to justify his compulsory hospitalisation" and "the mental disorder must be of a kind or degree warranting compulsory confinement" (Winterwerp v The Netherlands (1979) 2 EHRR 387 para 39).
Under section 4(1) of the Bill a finding of insanity can not be returned unless the defendant committed the act, a requirement which will no doubt add to the length of insanity trials. However, this novel criterion of legal insanity has left open the possibility that indefinite detention following a finding of insanity might no longer be in breach of article 5(1)(e). One could now legitimately differentiate between indefinite hospitalisation "as a person of unsound mind", and indefinite hospitalisation by reason of having committed a criminal act. However, rather than follow this approach to its logical conclusion, the Bill provides for the possibility of release following a finding of insanity. Under Section 4(2) of the Bill, detention following a finding of insanity is made conditional on the need for in-patient treatment or care in a designated centre, or the risk of danger to the defendant or to others. Thus if the defendant has recovered before trial he/she may be set free. In the U.S.A., the criteria for detention of mental illness and dangerousness has provoked fierce controversy and the new criteria for detention may lead to a similar controversy in Irish law. As Ellis has commented:
"The public's concern is less with ascertaining whether blame properly can be assigned to a particular defendant than with determining when he will get out. And the delusion of law professionals to the contrary notwithstanding, it is the public's concern that drives the debate on possible changes in the insanity defense" (Ellis 1986, p.962).
However, the risk of dangerousness or mental illness are provided as alternatives under the Bill so that one or the other will justify detention. The provision that the defendant may be detained solely if he poses the risk of danger allows for detention of the psychopath who may not benefit from treatment(3) and thus who may fall outside the criterion of being in need of in-patient treatment or care.(4)
The Bill does not provide the same range of disposal outcomes as the English Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, so that an acquittee who no longer needs treatment or no longer poses a risk dangerousness will walk free, apparently without supervision. This would apply even if the charge were murder, so that the Bill is even more defendant-friendly than the English Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 where discretionary disposal does not apply to "insanity acquittees"(5) charged with murder and indefinite hospitalisation is mandatory. There is no provision for a supervision and treatment order or guardianship order to follow a finding of insanity under the Bill. However, once committed, the chief medical officer of the designated centre may order temporary release with the consent of the Minister for Justice, or transfer of an acquittee to another designated centre with the consent of the Minister for Health, on such conditions and for such period as he thinks proper (s 8(1)). The Ministry of Justice has clearly distanced itself from decisions on release. This may be motivated by a desire to comply with the European Convention on Human Rights or it may be a direct response to the controversy in which the Minister for Justice has become enmeshed following John Gallagher's most recent application for release (Gallagher v Director of the Central Mental Hospital and Others, 6th September 1996, Lexis Transcript No. 651 55).
If it cannot be proved that the defendant committed the act it would seem that civil committal procedures will apply. This may be considered to be more appropriate for those who have not been proven to have committed the criminal act and this disposal may be thought to carry less stigma than a finding of criminal insanity, a stigma which even the revised form of the special verdict is unlikely to allay.
Verdict
The Criminal Procedure (Insanity) Act 1964 changed the English verdict from guilty but insane to not guilty by reason of insanity. In Ireland there has been no such reforming legislation and the verdict has remained guilty but insane. The 1996 Bill proposes to change the verdict to one of not guilty by reason of mental disorder. Given that inherent in the insanity defence is a finding that the defendant did the act the public would be likely to question this verdict. To satisfy a public furore in the United States following the acquittal by reason of insanity of John Hinckley (President Ronald Reagan's would-be assassin), several states enacted a verdict of guilty but mentally ill to formally recognise the defendant's guilt. This verdict was intended to protect the public by decreasing the number of insanity acquittals and increasing the number of mentally disordered defendants sent to prison (Steadman et al 1993, p 103). This reform was driven by public concern over use of the insanity plea to "beat the rap" (American Psychiatric Association 1983, p 683 ) and it is likely that this public concern would re-surface under the Bill's new verdict.
Release
The regime of compulsory hospitalisation following a finding of insanity in Ireland is exacerbated by the unsatisfactory procedure for the release of those found "guilty but insane" once cured of their mental affliction. The Supreme Court in DPP v John Gallagher (1991) 1 IR 31 ruled that release following a finding of insanity is an Executive function. This may well be in breach of Article 5(4) of the European Convention on Human Rights (Boland 1996b), which entitles everyone deprived of their liberty to have the lawfulness of their detention determined speedily by a court and their release ordered if the detention is not lawful. Further, in X v United Kingdom 4 EHRR 188 para 53 the European Court of Human Rights held that the most important characteristic of a court under Article 5(4) is "independence of the executive and of the parties to the case".
The European Court of Human Rights in Winterwerp (1979) 2 EHRR 387 para 66 held that Article 5(4) does not require that persons committed should themselves take the initiative in obtaining legal representation before having recourse to a court. This suggests that the right of recourse to a court should not be dependent upon the patient's taking the initiative to apply (Gostin 1982, p 792) and that periodic review of detention is required under Article 5(4). As McAuley points out, the Irish Government is not obliged to carry out a review where the detainee has not sought one out (McAuley 1993, p 121). Thus, in the case of Ellis it was two years before a review was carried out at the defendant's request notwithstanding the abundance of medical evidence of his sanity (McAuley 1993, p 121).
The Bill proposes that henceforth the Judiciary should decide whether the criminally insane should be released. By virtue of Section 7(3), if the chief medical officer of a designated centre is of the opinion that a detained person is no longer in need of in-patient care or no longer poses a risk of danger to himself or others he shall notify the High Court of his opinion. The High Court can make such order as it thinks proper for the person's disposal, including discharge with or without conditions or subject to conditions of out-patient treatment or supervision or both. It seems that under the Bill the insanity acquittee is not required to take the initiative himself to seek a review of his/her detention, but, rather than introducing a periodic review of their detention, their release is in the hands of the chief medical officer. Whether this new procedure would comply with the requirements of the European Court of Human Rights in Winterwerp is questionable.
The sole involvement of the Ministry of Justice in the release procedure lies at the pre-release stage. Section 8(1) authorises temporary release of an insanity acquittee by the chief medical officer of a designated centre, with the consent of the Minister for Justice. It also authorises transfer to another designated centre.
Appeal
Section 6(3) introduces an appeal by way of rehearing from a finding of not guilty by reason of mental abnormality in the District Court and section 6(4) allows an appeal to the Supreme Court on the basis of the transcript where a person found not guilty by reason of mental disorder has been tried on indictment. An appeal is essential if the issue of insanity can be raised despite the defendant's objection, as suggested by the case of Messitt [1972] IR 204. Section 6(5) allows an appeal against a decision by the court of trial to make an order of committal.
Diminished Responsibility
Diminished responsibility as a defence in Irish Law was rejected by the Irish Supreme Court in The People (DPP) v Joseph O' Mahony [1984] ILRM 244. Since this time support for this defence has been gathering momentum (Boland 1995, p.182). Consequently, section 5 of the Bill introduces a defence of diminished responsibility into Irish law, which will reduce a charge of murder to manslaughter. The criteria as laid out in section 5(1) are that the Jury/Special Criminal Court find that accused
(a) committed the act alleged against him(b) was suffering at the time from a mental disorder and
(c) the mental disorder was not such as to justify a finding of not guilty by reason of mental disorder but was such as to substantially diminish his responsibility for the act.
In many respects the Irish diminished responsibility defence is an improvement over its English counterpart. Professor Griew described the wording of the English diminished responsibility defence as elliptical "almost to the point of nonsense" (Griew 1986, p 19). Most of the criticism of the English defence of diminished responsibility has centred on its wording (Butler Committee 1975, para 19.17).
In England, hasty adoption of the defence and lack of discussion of it were later to lead to uncertainty as to its limits. The end result was that the English Judiciary was placed in the unenviable position of having to legislate which mental abnormalities would fall within the defence of diminished responsibility (and vice versa, which would not), a decision which ought to have been taken by the draughtsmen and Parliamentarians (Boland 1996c, p 21). For instance, it was only with the Court of Appeal's decision in R v Byrne [1960] 3 All ER 1 that it became clear that diminished responsibility embraced more than the mere cognitive impairments covered by the McNaghten Rules.
The proposed Irish defence in section 5 attempts to relieve the Judiciary of deciding which abnormalities fall within the defence. It seems that mental disorder is the psychiatrist's domain although it would have been preferable if medical evidence had been stated as being a prerequisite. As previously stated, mental disorder is defined in section 1 as mental illness, mental handicap, personality disorder or any disease of the mind but does not include disorder arising from intoxication. If all disorders, arising in any manner or degree from intoxication, are to be excluded from the ambit of the diminished responsibility defence we may see an Irish diminished responsibility defence which is considerably narrower than its English counterpart.
The Butler Committee in 1975, when proposing a reformulation of the English diminished responsibility defence was concerned to reconcile the meaning of mental abnormality with the meaning of mental disorder in civil committal procedures. To a large extent, this concern has been met by the Bill which has the same requirement of mental disorder as in civil committal criteria, albeit that the civil committal criteria differ by excluding personality disorder. (Nonetheless, for reasons advanced elsewhere, (Boland 1995, pp 176 and 177) the writer is of the view that diminished responsibility is a preferable defence for the psychopath than insanity). Furthermore, the same definition of mental disorder applies to diminished responsibility as to insanity, avoiding undue complexity, in section 5 the focus being on whether the defendant's responsibility was substantially diminished.
In England the jury is provided with no criterion for determining whether or not responsibility is substantially impaired. The courts have been indulgent to medical testimony on the issue of substantially impaired mental responsibility due to the difficulty of the jury's task (Boland 1996c p.31). This attitude was highlighted in the relatively recent Court of Appeal decision of R v Campbell (1987) 84 Cr App R 255, 259, where it was said that there was no prima facie evidence of diminished responsibility because the psychiatric witness "never addressed himself in his evidence to the final matter which would have to be proved by the defence...namely that the abnormality of mind was such as substantially to impair the mental responsibility of the appellant for his acts". The amicable partnership which has developed between judge and expert witness in English diminished responsibility cases, coupled with the arduous task which the jury would otherwise face, explains the failure of the courts to differentiate the role of the expert witness from that of the jury (Griew 1988, p 86).
The Butler Committee's proposed rewording of the English diminished responsibility defence opted to reinforce the line between expert witness and jury. This lead Griew to predict that judges, having to operate the law in the Butler Committee's revised form, would quickly become embarrassed by a difficulty in it that has, up to now, been kept partially concealed by the working of the section (Griew 1988 p 86) - its failure to provide adequate guidance for the jury. Fortunately, the proposed Irish diminished responsibility defence does not sharply deliniate the function of the expert and it would be preferable if the expert were permitted to testify whether the defendant's mental disorder substantially diminished his responsibility for the act or whether the defendant was of diminished responsibility. A definition precluding such testimony would place an inordinate burden on the jury and medical testimony on the issue of impaired responsibility would have to be allowed in order to facilitate the operation of the defence (Boland 1996c, p 34).
Uncontested pleas
In England, in the early years of the diminished responsibility defence, it was unclear from the Homicide Act 1957 whether the plea could be accepted by the Crown or whether the issue had to be left to the jury. In R v Cox [1968] 1 All ER 386, 387 the Court of Appeal clarified the uncertainty by approving the procedure whereby the plea of diminished responsibility could be accepted at the discretion of the trial judge where the medical evidence is unconstested. Dell has found that 86.5% of English diminished responsibility defences are accepted outright by the Crown and that only 20% reach the jury (Dell 1982, p 811). Section 5(3) of the Bill allows the accused to plead guilty to manslaughter on the grounds of diminished responsibility on arraignment if the prosecution consent to the application, and if the court is satisfied that the requirements of section 5(1) are made out it shall direct a verdict be entered accordingly. The court may receive evidence as to the accused's mental condition at the time of the offence at this point in time but it does not seem to be mandatory. As with section 5(1) which has clearly defined the ambit of the Irish diminished responsibility defence, the Government has attempted to clarify the procedure surrounding acceptance of the plea, thereby ensuring that the onus is not on the Judiciary to decide this issue, as happened in R v Cox [1968] 1 All ER 386. One noteworthy shortcoming in respect of procedural clarification is the failure to mention the disposal consequences which would follow a diminished responsibility verdict. Presumably these are to be the same as those that follow a manslaughter verdict.
Charges of Diminished Responsibility Manslaughter
The Butler Committee recommended that it should be possible, where the prosecution are in possession of evidence indicating that a defence under the section can be made out, for them to charge manslaughter in the first instance rather than murder (Butler Committee 1975, para 19.19). The Committee stipulated that the prosecution would be likely to adopt this course only when it is clear that the defence were agreeable to it. If the defence wished to resist evidence of mental disorder the charge should be murder as is currently the case (Butler Committee 1975, para 19.19).
The Criminal Law Revision Committee have endorsed the Butler Committee's recommendation, being of the opinion that the mental condition of a disturbed person is not likely to be improved by having a charge of murder outstanding (CLRC 14th Report, para 95). They also felt that it cannot be right that charges should be proferred in the most solemn way known to the law, i.e. on indictment, when the prosecution know that there is a defence to the charge which is likely to succeed (CLRC 14th Report, para 95). In this the Criminal Law Revision Committee had the support of several prominent public bodies.(6)
This recommendation, however, has not been enacted in the Bill. Sparing the defendant from the anxiety of having a trial for murder pending and from the anguish of appearing in court on a murder charge would have given expression to the foundation of humanity on which the defence is based. Only cases where the medical evidence was contested by the prosecution would be tried as murder. Thus valuable court time and expense would have been saved as judges would not be faced with protracted medical testimony on the issue of diminished responsibility before deciding whether or not to accept the plea or to leave it for jury determination.
Burden of Proof
The Butler Committee recommended placing the burden of proving that the defendant did the act (or made the omission) with the requisite state of mind, on the prosecution (Butler Committee 1975, para 19.18). The rationale behind the Committee's proposal seems to have been the perceived anomaly of the issue of burden of proof in relation to the defences of insanity and diminished responsibility (Butler Committee 1975, para 19.18). The Criminal Law Revision Committee also felt that the prosecution should bear the burden of disproving insanity and diminished responsibility (CLRC 14th Report, para 94). They felt that, however happy lawyers may be with the difference between being sure and being satisfied on the balance of probabilities (adding "if indeed any are"), juries are probably confused by these subtleties and by the different placing of the burden of proof for different offences (CLRC 14th Report para 94). The Criminal Law Revision Committee expressed their confidence in the judges to ensure that defences which have no proper basis on the evidence are withdrawn from the jury (CLRC 14th Report para 94).
Section 5(2) of the Bill, however, provides that the onus of establishing diminished responsibility shall rest on the accused. The section makes no reference to the standard of proof. Section 4(4), however, does allow the prosecution to "adduce or elicit evidence tending to prove" insanity or diminished responsibility where the defendant contends that the other defence is applicable.
The requirement that the jury find that the defendant committed the act before a finding of diminished responsibility can be returned would doubtless add to the length of trials, but would protect the innocent defendant should it be possible for the prosecution to raise diminished responsibility despite his/her objections to raising a mental disorder defence.
Unfitness to Plead
Section 6(9) of the Bill provides that after the court has determined that an accused is not fit to plead it may, on application to it, allow evidence to be adduced as to whether the accused committed the act alleged against him and if the court is satisfied that there is a reasonable doubt as to whether or not the accused committed the act it shall acquit him. It is of course, possible that the accused, because of his/her mental condition would be unable to make the necessary application. This could lead to a repetition of cases like that of Valerie Hodgson,(7) a mentally handicapped 30 year old who found her father, who cared for her, dead. She was highly suggestible and eager to please and during police interviews she confessed to murdering her father. Because she was found unfit to plead there was no opportunity for the court to examine the forensic evidence which would have revealed that she was not the murderer. Eventually new evidence emerged leading to the conviction of the actual murderer, but not before Valerie had spent time both in prison and in a mental hospital. As a result of such cases the English Parliament enacted the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, requiring a finding that the defendant committed the act before a defendant can be detained following a finding of unfitness to plead. The latter approach has been taken by the Bill in relation to insanity and diminished responsibility and it is difficult to justify the different approach in relation to unfitness to plead.
The requirements emerging from R v Podola [1959] 3 All ER 418 are effectively reproduced by section 3(2) of the Bill which states that an accused shall be treated as not fit to plead if he is unable, by reason of mental disorder, to understand the nature or course of the proceedings so as to-
(i) make a proper defence(ii) challenge, in the case of a trial by jury, a juror to whom he may wish to object, or
(iii) understand the details of the evidence
The court may postpone consideration of fitness to plead until any time up to the opening of the case for the defence and before this if the jury or court determines that the accused ought to be acquitted fitness to plead shall not be determined (s 6(8)).
Sections 3(4)(a) and 3(6)(b)(ii) provide that if the Court determines that the accused is not fit to plead, the Court shall adjourn the proceedings and may, if it is satisfied that the accused is in need of in-patient treatment or care in a designated centre or that because of his mental condition there is a substantial risk that, if set at liberty, he may be a danger to himself or others, commit him to a designated centre until an order is made under section 7. It is unlikely that the accused could be unfit to plead within section 3 but would not need in-patient treatment or would be of no danger to himself or to others. Unlike a finding of not guilty by reason of mental disorder where the words "shall" are used here the words "may" commit him to a designated centre suggest that he/she may be set at liberty, despite the need for in-patient treatment or care or the substantial risk of danger to him/herself or to others. This inconsistency is even more alarming given that committal following a finding of unfitness to plead requires a substantial risk of danger compared with a mere risk of danger in insanity trials.
Sections 6(1) and (2) allow a defendant to appeal a finding of unfitness to plead, whereupon the court shall order that the appellant be tried/retried, as the case may be. Section 7(4) allows a detained patient found unfit to plead to apply to the High Court for a review of his detention, whilst section 7(1) empowers the chief medical officer to notify the High Court of his opinion that the detained person is no longer unfit to plead or is no longer in need of in-patient treatment or care or is no longer dangerous to him/herself or to others. Following such application/notification the High Court shall make such order as it thinks proper for the person's disposal, whether for further detention, care or treatment in a designated centre or for his discharge whether unconditionally or subject to conditions for out-patient treatment or supervision or both (sections 7(2) and 4(a) and (b)).
Philosophy
On the whole the philosophy underlying the Bill seems more defendant friendly than public friendly. By introducing a defence of diminished responsibility the Bill ensures that all defendants who are mentally disordered have this disorder recognised in a criminal defence, with the exception of intoxicated offenders. Furthermore the Bill has attempted to ensure that defendants who are neither in need of treatment nor dangerous can secure release following a finding of insanity. In this respect the Bill has gone further than the English Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 whose discretionary disposal consequences do not apply to murder. However the committal criteria under the Bill are not as strict as the US criteria which required release unless the defendant was ill and dangerous. The Ministry of Justice has distanced itself from any controversy that might follow the release of an insanity acquittee, by placing release decisions on the High Court and the Ministry of Health.
Another defendant-friendly reform is the requirement that the defendant committed the act before he can be found either insane or guilty of diminished responsibility manslaughter. Strangely, this issue arises only after a finding of unfitness to plead when it will not be considered automatically but only on application to the court. In determinations of unfitness to plead this requirement may fall short of the Bill's objective of protecting the innocent mentally ill defendant. However, unfitness to plead is likely to give rise to the most controversy because committal criteria are stricter: the Bill requires a substantial risk of danger and although unlikely, committal may not even follow this.
Conclusion
Although the Bill contains several inconsistencies it is, on the whole, a welcome piece of legislation which introduces much needed protections for vulnerable mentally ill defendants. The writer would question the inclusion of psychopathy within the insanity defence and the verdict of not guilty by reason of mental disorder, as it is likely to rekindle the American controversy on Irish soil. Nonetheless it cannot be denied that the Bill achieves a healthy balance of the interests of the defendant and protection of the public, except in the case of unfitness to plead where theoretically the defendant may be released even though dangerous or in need of in-patient treatment. The Bill has finally introduced a diminished responsibility defence into Irish Law and has attempted to clearly define its ambit and surrounding procedure. However the failure to mention the disposal consequences following a diminished responsibility verdict is a glaring omission. Furthermore, the failure to allow for charges of diminished responsibility manslaughter and to place the burden of proof on the prosecution are inconsistent with the defendant friendly spirit of the bill. The exclusion of disorders arising from intoxication from the definition of mental disorder, introduces into the insanity and diminished responsibility defences the policy of punishing the defendant for his/her act of getting drunk. From the defendant's perspective, this may be considered to be the harshest aspect of the Bill.
Bibliography
American Psychiatric Association Insanity Defense Work Group (1983) 'American Psychiatric Association Statement on the Insanity Defense' 130 American Journal of Psychiatry 681.
Boland, F (1995) 'Diminished Responsibility as a Defence in Irish Law' 5 Irish Criminal Law Journal 193.
Boland, F (1996a) Diminished Responsibility as a Defence in Ireland Having Regard to the Law in England, Scotland and Wales unpublished PhD Thesis (Leeds).
Boland, F (1996b) 'Insanity, the Irish Constitution and the European Convention on Human Rights' 47 Northern Ireland Legal Quarterly 260.
Boland, F (1996c) 'Diminished Responsibility as a Defence in Irish Law: Past English Mistakes and Future Irish Directions' 5 Irish Criminal Law Journal 19.
Butler Committee (1975) The Butler Committee on Mentally Abnormal Offenders (London: HMSO) Cmnd 6244.
Criminal Law Revision Committee (1980) 14th Report Offences Against the Person (London: HMSO) Cmnd 7844.
Dell, S (1982) 'Diminished Responsibility Reconsidered' Criminal Law Review 809.
Ellis, JW (1986) 'The Consequences of the Insanity Defense: Proposals to reform post-acquittal commitment laws' 35 Catholic University Law Review 961.
Gostin, L (1982) 'Human Rights, Judicial Review and the Mentally Disordered Offender' Criminal Law Review 779.
Griew, E (1986) 'Reducing Murder to Manslaughter: Whose Job?' 12 Journal of Medical Ethics 18.
Griew, E (1988) 'The Future of Diminished Responsibility' Criminal Law Review 75.
McAuley, F (1993) Insanity, Psychiatry and Criminal Responsibility (Dublin: Roundhall Press).
Royal Commission on Capital Punishment (1949-53) Report of the Royal Commission on Capital Punishment (London: HMSO) Cmnd 8932.
Steadman, HJ et al (1993) Before and After Hinckley: Evaluating Insanity Defense Reform (New York: The Guilford Press).
White Paper (1995) A New Mental Health Act (Dublin: Government
Publication) Pn 1824.
Footnotes
1. Personal communication with the Minister’s Secretary 23rd August 1997. Back to text.
2. The Butler Committee, however, included psychopathy in its definition of mental disorder (Butler Committee 1975). Back to text.
3. The Butler Committee took the view that psychopathy is non-curable (Butler Committee 1975, para 5.34). Back to text.
4. This view is given weight by the exclusion of personality disorder from the definition of mental disorder for the purposes of civil committal criteria in the White Paper on Mental Health. Back to text.
5. I.e. those in respect of whom a not guilty by reason of insanity verdict is returned. Back to text.
6. E.g. the Law Society, the Association of Chief Police Officers, the Metropolitan Police Solicitor, the Women’s National Commission and the National Council of Women in Great Britain. Back to text.
7. Mentioned in the debates on the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 HC deb vol 186, p 1270. Back to text.