Application of Gallagher

• Jurisdiction: Ireland
• Judgment Date: 06 September 1996
• Date: 06 September 1996
• Docket Number: [1996 No. 651 SS]
• Court: High Court

Application of Gallagher (No. 2)

In the matter of an enquiry pursuant to Article 40, s. 4, sub-s. 2 of the Constitution. John Gallagher

Applicant

and

The Director of the Central Mental Hospital, Respondent (No. 2)

The Minister for Justice, Ireland and The Attorney General, Notice Parties

[1996 No. 651 SS]

High Court

Constitution - Liberty - Enquiry into complaint of unlawful detention - Applicant detained in Central Mental Hospital after being found guilty of murder but insane - Applicant seeking release - Applicant alleging serious and fundamental breaches of constitutional rights in dealing with application for release - Whether such breaches, if established, would justify immediate release - Constitution of Ireland, 1937, Article 40, s. 4, sub-s. 2.

Mental treatment - Applicant found guilty of murder but insane - Detained in Central Mental Hospital - Applicant claiming never to have been insane - Applicant seeking release - Test to be applied - Whether dangerousness of applicant only relevant factor - Whether purely preventive detention justified - Trial of Lunatics Act, 1883 (46 & 47 Vict., c. 38), s. 2.

Fair procedures - Applicant found guilty of murder but insane - Detained in Central Mental Hospital - Applicant claiming never to have been insane - Applicant seeking release - Whether Minister for Justice obliged to act in accordance with fair procedures - Minister seeking views of advisory committee - Minister seeking legal advice on recommendation of committee - Minister deciding on minimalist programme of temporary release - Minister undertaking to review position - Whether denial of fair procedures - Whether programme of release proportional - Whether Minister entitled to take into account attitude of victims' families - Whether applicant entitled to comment on all factors considered by Minister.

By Article 40, s. 4, sub-s. 2 of the Constitution of Ireland, 1937:—

"Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law."

Section 2 of the Trial of Lunatics Act, 1883, as modified in its application to Ireland by s. 3, provides that a jury may return a special verdict of guilty but insane, and where such a verdict is returned the court shall order the detention of the accused until the pleasure of the Lord Lieutenant is known.

In Application of Gallagher[1991] 1 I.R. 31 the Supreme Court held that the functions vested in the Lord Lieutenant of Ireland relating to subsequent decisions regarding treatment and detention were, by s. 11 of the Adaptation of Enactments Act, 1922, vested in the Executive.

The applicant was tried by a jury before the Central Criminal Court for the murders of two women committed on the 18th September, 1988. The jury found that the applicant was guilty but insane at the time of the murders and returned a special verdict pursuant to s. 2 of the Trial of Lunatics Act, 1883. Johnson J. ordered that the applicant be detained in the Central Mental Hospital until further order of the court; this was later amended to detention at the pleasure of the Government.

The applicant sought to be released from custody on the grounds that he was no longer, and never had been, insane. This view was supported by the respondent and by other psychiatrists and a psychologist. A series of advisory committees was established by the Minister for Justice to advise her.

On the 31st July, 1995, the advisory committee advised the Minister that:—

• (i) the applicant would not be a potential danger to any member of the public if he were released for limited periods;

• (ii) a programme of limited and carefully monitored periods of freedom should be instituted on a trial basis and conditions such as a ban on alcohol consumption or substance abuse should be imposed, and,

• (iii) the applicant's case should be reviewed in one year.

The Minister sought the advice of the Attorney General and this advice was received on the 7th October, 1995. Following some internal correspondence in the Department of Justice a letter was issued by the Minister's private secretary to the chairman of the committee on the 30th November, 1995, which outlined the Minister's interpretation of the committee's advice in relation to the applicant's release as being that the applicant could be granted short, but supervised, periods of freedom from time to time, subject to conditions. The letter also noted with concern the applicant's refusal to avail of educational/rehabilitative work training opportunities which had been offered to him.

On the 4th December, 1995, the applicant wrote to the Minister and requested his release for the Christmas period. This request was refused by letter dated the 21st December, 1995. The applicant was informed that the Minister was still considering the advisory committee's advice in relation to his application for release. The letter further referred to the Minister's proposals for educational/rehabilitative work training programmes for the applicant and requested a response from him so as to enable the Minister to make a fully informed decision. The applicant did not reply to this letter.

On the 22nd April, 1996, the applicant complained to the High Court pursuant to Article 40, s. 4, sub-s. 2 of the Constitution that he was being unlawfully detained in the Central Mental Hospital.

On the 8th May, 1996, the Government noted and approved a programme of limited outings for the applicant proposed by the Minister and which had been outlined in the letter of the 30th November, 1995. On the 14th May, 1996, by letter on behalf of the Minister, the applicant was informed that a programme of outings supervised by staff of the Central Mental Hospital during the following six months was proposed to be granted to him and that this programme would be reviewed by the Minister at the end of that period.

At the hearing of the application, it was submitted on behalf of the applicant that although his committal to detention in the Central Mental Hospital pursuant to orders of the Central Criminal Court had been lawful, his continued detention was no longer in accordance with law because there had been a culpable failure on the Minister's part to address and decide the central issue in relation to the applicant's application for release, namely, whether he was suffering from any mental disorder warranting his continued detention in the public or private interest. It was submitted that this failure rendered his detention unlawful and that consequently he was entitled to immediate and unconditional release pursuant to Article 40, s. 4, sub-s. 2. It was further submitted that the procedures adopted by the Minister were flawed and unfair insofar as the Minister had had regard to representations, documentation and advice which were not disclosed to the applicant and on which the applicant was not given an opportunity to comment. In particular, concern was expressed that the Minister had met with and given assurances to relatives of his victims and that she had received petitions and letters from members of the public opposed to the applicant's release.

On behalf of the notice parties it was submitted that the key criterion was whether or not it was safe to release the person and that in so determining, the executive was entitled to have regard to both the past and present health of the person as well as the prognosis. Furthermore, it was argued, detention pursuant to s. 2, sub-s. 2 of the Act of 1883 could lawfully continue if the person detained was dangerous but not mentally ill.

Held by the High Court (Geoghegan, Laffoy and Kelly JJ.) in finding that the applicant was in lawful detention and was not entitled to release, 1, that the only jurisdiction vested in the High Court by virtue of Article 40, s. 4, sub-s. 2 was to either order or refuse to order the release from custody of the applicant and, therefore, the Court must avoid combining matters which should more appropriately be addressed by way of judicial review with an enquiry under that Article.

In re D. [1987] I.R. 449; C. v. Smith (Unreported, Supreme Court, 31st July, 1996) and McGlinchy v. Governor of Portlaoise Prison[1988] I.R. 671 applied.

2. That in determining the lawful duration of detention of persons found guilty but insane the Minister was exercising an executive function rather than a judicial power.

Murphy v. Dublin Corporation [1972] I.R. 215 and Geraghty v. Minister for Local Government[1976] I.R. 153 distinguished.

3. That the function of the Minister in adjudicating on an application for release such as arose in this case must be performed in a quasi-judicial manner having followed fair procedures and with due regard to principles of natural and constitutional justice.

Application of Gallagher [1991] 1 I.R. 31 and Kirwan v. Minister for Justice[1994] 1 I.L.R.M. 44 applied.

4. That, in considering an application for release by a person in the position of the applicant, the task was to determine whether by reason of mental ill-health that person currently constituted such a risk to the public or to a section of the public or to himself that he should be detained. The foundation of such a determination was the evidence of experts such as psychiatrists and psychologists as to the current clinical...