Application of Neilan

 
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1990 WJSC-HC 509

THE HIGH COURT

THE CENTRAL CRIMINAL COURT

BILL NO. 23C/83
DPP v. NEILAN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
.v.
FRANCIS NEILAN

Citations:

DPP, PEOPLE V PATRICK ELLIS UNREP CCC O'HANLON 9.2.90

HADFIELDS CASE 1800 27 ST 1281

LUNACY (IRELAND) ACT 1821

CRIMINAL RESPONSIBILITY AND PUNISHMENT: FUNCTIONS OF JUDGE AND JURY 1954 CRIM LR P661

NOT GUILTY BECAUSE OF INSANITY 1968 IR JUR NS 61

TRIAL OF LUNATICS ACT 1883 S2(1)

TRIAL OF LUNATICS ACT 1883 S2(2)

TRIAL OF LUNATICS ACT 1883 S1

R V FELSTEAD 1914 AC 534

ADAPTATIONS OF ENACTMENTS ACT 1922 S11(1)

CONSTITUTION SAORSTAT EIREANN ART 51

CONSTITUTION ART 49

O, STATE V O'BRIEN 1973 IR 50

CHILDREN ACT 1908 S103

CONSTITUTION ART 49.1

CONSTITUTION ART 6

CONSTITUTION ART 34.1

DEATON V AG 1963 IR 170

MCDONALD V BORD NA GCON 1965 IR 217

AG OF AUSTRALIA V THE QUEEN & ORS 1958 AC 288

DPP, PEOPLE V O'MAHONY 1986 ILRM 244

CHILDREN ACT 1908 S133

CONSTITUTION SAORSTAT EIREANN ART 66

CONSTITUTION ART 13.6

LYNHAM V BUTLER 1933 67 ILTR 121

UNITED ENGINEERING WORKERS UNION V DEVANAYAGAM 1968 AC 356

SHANAHAN, STATE V AG 1964 IR 239

SOLICITORS ACT 1954, IN RE 1960 IR 239

EAST DONEGAL CO-OPERATIVE LIVESTOCK MARTS LTD & ORS V AG 1970 IR 317

COURTS-MARTIAL APPEALS ACT 1983 S6

CONSTITUTION ART 50

TREATMENT & CARE OF PERSONS SUFFERING FROM MENTAL DISORDER WHO APPEAR BEFORE COURTS ON CRIMINAL CHARGES PRL 8275 3RD REP HENCHY COMM

CRIMINAL LUNATICS ACT 1800 (UK)

TRIAL OF LUNATICS ACT 1883 S3

CONSTITUTION SAORSTAT EIREANN ART 73

COMPANIES ACTS 1963–1986

CONSTITUTION SAORSTAT EIREANN ART 2

TRIAL OF LUNATICS ACT 1883 S2

O'BRIEN V BORD NA MONA 1981 IR 463

C, STATE V MIN FOR JUSTICE 1967 IR 106

DEFENCE ACT 1954 S203

THEOBALD ON LUNACY P250

MENTAL TREATMENT ACT 1945 S165

Synopsis:

CONSTITUTION

Courts

Administration of justice - Criminal law - Trial - Special verdict - Guilty but insane - Victorian statute - Mandatory order of court - Detention until pleasure of Lord Lieutenant be known - Whether administration of justice involved - Enactment inconsistent with Constitution - (Central Criminal Court - Keane J. - 23/4/90) - [1990] 2 I.R. 267 - [1991] ILRM 184

|The People v. N.|

CONSTITUTION

Statute

Validity - Severance - Criminal law - Trial - Indictment - Special verdict - Guilty but insane - Victorian statute - Mandatory order of court - Detention until pleasure of Lord Lieutenant be known - Whether administration of justice involved - Enactment inconsistent with Constitution - (Central Criminal Court - Keane J. - 23/4/90) - [1990] 2 I.R. 267 - [1991] ILRM 184

|The People v. N.|

CRIMINAL LAW

Defence

Insanity - Form of order - Indictment - Charge proved - Insanity proved - Verdict of jury - Special statutory verdict - Guilty but insane - Periodic review of accused's detention - Whether review is a function of the Courts or of the Government - Statute - Validity - Severance - Constitution - Courts - Administration of justice - Trial of Lunatics Act, 1883, ss. 2, 3 - Adaptation of Enactments Act, 1922, s. 11 - Constitution of Ireland, 1937, Articles 6, 13, 34, 49, 50 - (Central Criminal Court - Keane J. - 23/4/90) - [1990] 2 I.R. 267 - [1991] ILRM 184

|The People v. N.|

WORDS AND PHRASES

"Lord Lieutenant's pleasure"

Offence - Trial - Indictment - Special verdict - Guilty but insane - Victorian statute - Mandatory order prescribed - Detention until pleasure of Lord Lieutenant be known - Whether administration of justice involved - Enactment inconsistent with Constitution - (Central Criminal Court - Keane J. - 23/4/90)

|The People v. N.|

Keane J.
THE FACTS
1

The defendant 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.

2

After the jury had returned their verdict, Counsel for the State and the defendant 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".

3

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".

4

At the time of the offence with which he was charged, the defendant 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.

5

During the years which have elapsed since I made the order of December 14th 1983, a number of applications have been made to me on an informal basis in chambers relating to the defendant'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 institution. 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, Co. Galway. I acceded to such applications on the basis of the medical reports placed before me which indicated that the defendant 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 14th December 1983 had been first introduced.

6

With the passage of time, those responsible for the defendant'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 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 defendant, 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 defendant 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 defendant 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 D.P.P. gave evidence that there was some disquiet in the neighbourhood at the prospect of the defendant's release. Having considered the evidence, I acceded to the application for the transfer of the defendant to the hospital for a trial period of eight weeks.

7

There was then a further application on the 2nd May 1989 for an order transferring the defendant indefinitely to the hospital in Ballinasloe with a view to his ultimate discharge. At that hearing, I ordered that the defendant 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.

8

On January 17th 1990, the Solicitors for the defendant gave notice of motion for an application to the court for an orderinter aliathat the defendant 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 the case of The People (At the suit of the D.P.P.) v Patrick Ellis (unreported; judgment delivered 9th February 1990). The defendant 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 defendant should be detained in the Central Mental Hospital,...

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