Application of Neilan


Central Criminal Court

[Bill No. 23C of 1983]
Application of Neilan
In the Matter of an Application by Francis Neilan Francis Neilan
The Director of Public Prosecutions, Respondent

Cases mentioned in this report:—

Attorney of the Commonwealth of Australia v. Reginam and the Boilermakers' Society of Australia; Kirby v. Reginam and the Boilermakers' Society of AustraliaELRWLRUNK [1957] A.C. 288; [1957] 2 W.L.R. 607; [1957] 2 All E.R. 45.

Deaton v. Attorney GeneralIRDLTR [1963] I.R. 170; (1962) 98 I.L.T.R. 99.

East Donegal Co-operative Livestock Marts Ltd. v. Attorney GeneralIRDLTR [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Application of EllisIR [1990] 2 I.R. 291.

Felstead v. R.ELRUNKUNK [1914] A.C. 534; 111 L.T. 218; 30 T.L.R. 469; 24 Cox C.C. 243; 10 Cr. App. Rep. 129.

Hadfield's CaseST1 (1800) 27 State Tr. 1281.

Lynham v. Butler (No. 2)IRDLTR [1933] I.R. 74; (1932) 67 I.L.T.R. 75; [1932] L.J. Ir. 172.

McDonald v. Bord na gCon (No. 2)IRDLTR [1965] I.R. 217; (1965) 100 I.L.T.R. 89.

O'Brien v. Bord na MonaIRDLRM [1983] I.R. 255; [1983] I.L.R.M. 314.

The People (Director of Public Prosecutions) v. O'MahonyDLRM [1986] I.L.R.M. 244.

In re Solicitors Act, 1954IRDLTR [1960] I.R. 239; (1958) 95 I.L.T.R. 167.

The State (C.) v. Minister for JusticeIRDLTR [1967] I.R. 106; (1967) 102 I.L.T.R. 177.

The State (O.) v. O'BrienIR [1973] I.R. 50.

The State (Shanahan) v. Attorney GeneralIR [1964] I.R. 239.

United Engineering Workers' Union v. DevanayagamELRWLRUNK [1968] A.C. 356; [1967] 3 W.L.R. 461; [1967] 2 All E.R. 367.

Criminal law - Insanity - Defence - Defendant found guilty but insane - Order that defendant be detained in mental hospital "until further order of court" - Power to direct release of criminal lunatic vested by statute in Lord Lieutenant of Ireland and previously exercised by Government - Separation of powers - Whether jurisdiction to release criminal lunatics an executive or judicial power - Trial of Lunatics Act, 1883 (46 & 47 Vict c. 38), ss. 2 and 3 - Adaptation of Enactments Act, 1922 (No. 2), s. 11, sub-s. 1 - Constitution of Saorstát Éireann éireann, 1922, article 51 - Constitution of Ireland, 1937, Articles 6, 34, sub-s. 1 and 49.

Cur. adv. vult.

Keane J

The facts

The applicant was tried by a jury and myself on the 13th and 14th December, 1983, on a charge that on the 1st January, 1983, in the County of Galway he murdered Joseph O'Dea. He was duly arraigned and pleaded not guilty to murder but guilty to manslaughter. This plea was not accepted on behalf of the State. He was accordingly given in charge to the jury, who found him guilty but insane on the charge of murder.

After the jury had returned their verdict, counsel for the State and the applicant made submissions as to the appropriate form of order that should be made by the court. The curial part of the order made by me on the 14th December at the conclusion of the trial is as follows:—

"And the court doth order that Francis Neilan be detained in the Central Mental Hospital, Dundrum, and in such other institutions suitable for the detention of insane persons to which he may from time to time be removed from there, until further order of this court".

It would appear that this form of order had been employed for a number of years in all cases in the Central Criminal Court where a jury returned a special verdict of "guilty but insane".

At the time of the offence with which he was charged, the applicant was suffering from an acute paranoid psychosis. The medical evidence adduced before me, however, on a number of subsequent applications to the court concerning his further detention established that his mental state had improved very rapidly with treatment and even prior to his trial he was considered well enough to be released on bail, during which time he complied with medication and out-patient treatment.

During the years which have elapsed since I made the order of the 14th December, 1983, a number of applications have been made to me on an informal basis in chambers relating to the applicant's continued detention. Initially, these applications were made by the resident medical superintendent of the Central Mental Hospital, Dundrum or, in his absence, by other psychiatrists attached to that istitution. These applications were at first for accompanied parole and later for unaccompanied parole for the defendant to spend limited periods (usually not more than two or three nights) at the home of his mother in Gort, County Galway. I acceded to such applications on the basis of the medical reports placed before me which indicated that the applicant was no longer considered a danger to himself or other persons. On one occasion during the long vacation when I was, apparently, unavailable, a similar order was made by the President. When the first such application was made to me, I was informed by the registrar that this procedure of dealing with such applications in chambers had been followed since the form of order made by me on the 14th December, 1983, had been first introduced.

With the passage of time, those responsible for the applicant's continued supervision and treatment were satisfied that it would be appropriate to release him for limited periods of time so as to stay either with his mother or other members of his family without being accompanied by a member of the hospital staff. Eventually, it was thought desirable to apply to the court for an order transferring him from the Central Mental Hospital to St. Brigid's Psychiatric Hospital, Ballinasloe, an institution under the control of the Western Health Board. As this was an application for a more radical alteration in the custody of the applicant, I considered it desirable that it should be dealt with in open court on notice to the Director of Public Prosecutions. At the hearing, oral evidence was given by the medical experts which confirmed the view already expressed that the applicant had made a satisfactory recovery from his mental illness and that a more liberal custodial regime would not be a source of danger either for himself or any other people. It was suggested by the medical witnesses at that hearing that the transfer of the applicant to the hospital in Ballinasloe would make it easier to allow him increasing periods at home with a view to his eventual discharge with out-patient follow-up at the discretion of the medical superintendent and with the consent of the court. At the hearing, a garda officer who was called on behalf of the Director of Public Prosecutions gave evidence that there was some disquiet in the neighbourhood at the prospect of the applicant's release. Having considered the evidence, I acceded to the application for the transfer of the applicant to the hospital for a trial period of eight weeks.

There was then a further application on the 2nd May, 1989, for an order transferring the applicant indefinitely to the hospital in Ballinasloe with a view to his ultimate discharge. At that hearing, I ordered that the applicant should be transferred to the hospital in Ballinasloe until further order but that he should not be allowed to leave the hospital without the Registrar being informed and further directions obtained.

On the 17th January, 1990, the solicitors for the applicant gave notice of motion of an application to the court for an order, inter alia, that the applicant be released into the care of the medical superintendent of St. Brigid's Psychiatric Hospital, Ballinasloe, or that he be discharged to the out-patient care of that hospital. After the motion had been served but before it had been heard, O'Hanlon J. gave judgment in Application of EllisIR [1990] 2 I.R. 291. The applicant in that case had been tried before O'Hanlon J. and a jury in the Central Criminal Court in June, 1987, on a charge of murder and the jury had also in that case returned a verdict of "guilty but insane". The learned trial judge had made an order similar to that made by me in the present case, i.e. that the applicant should be detained in the Central Mental Hospital, Dundrum, until further order made by the High Court. He was so detained until the month of July, 1989, when an application was made for his release grounded upon evidence that the applicant was sane in all respects and was not suffering from any disease of the mind which would justify his continued detention in the Central Mental Hospital. O'Hanlon J., having directed that further reports should be furnished to the court, ultimately made an order for his release for a probationary period of six months after which a further psychiatric report was to be made available. That period having elapsed and a further report having been furnished to the effect that the applicant was to be regarded as sane in all respects, O'Hanlon J. went on to consider what order should be made in respect of the applicant. Having reviewed a number of authorities and statutory provisions, O'Hanlon J. expressed his conclusions (at p. 299) as follows:—

"The conclusion I have come to, upon consideration of these authorities and the relevant statutory provisions, is that it was unnecessary to depart from the practice which formerly prevailed as to the form of order which it was appropriate to make when a special verdict was returned by a jury under the Trial of Lunatics Act, 1883, and that the correct form of order to make is to direct that the accused person shall be kept in custody as a criminal lunatic in the Central Mental Hospital till the pleasure of the Government of...

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