E.C. v Clinical Director of Central Mental Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 05 April 2012
• Neutral Citation: [2012] IEHC 152
• Court: High Court
• Date: 05 April 2012

[2012] IEHC 152

THE HIGH COURT

[No. 637SS/2012]

C (E) v Clinical Director of the Central Mental Hospital

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

E.C.

APPLICANT

AND

CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL

RESPONDENT

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S11

CONSTITUTION ART 40.4.2

CRIMINAL LAW (INSANITY) ACT 2006 S15(2)

CRIMINAL LAW (INSANITY) ACT 2006 S4(3)

CRIMINAL LAW (INSANITY) ACT 2006 S4(6)

CRIMINAL LAW (INSANITY) ACT 2006 S4(3)(A)

CRIMINAL LAW (INSANITY) ACT 2006 S4(3)(B)

CRIMINAL LAW (INSANITY) ACT 2006 S4(3)(B)(i)

CRIMINAL LAW (INSANITY) ACT 2006 S4(3)(B)(ii)

CRIMINAL LAW (INSANITY) ACT 2006 S3(1)

CRIMINAL LAW (INSANITY) ACT 2006 S1

MENTAL HEALTH ACT 2001 S2(1)

CRIMINAL LAW (INSANITY) ACT 2006 S4(6)(A)(i)

CRIMINAL LAW (INSANITY) ACT 2006 S4(6)(A)(ii)

CRIMINAL LAW (INSANITY) ACT 2010 S4(G)

CRIMINAL LAW (INSANITY) ACT 2006 S13

O'CALLAGHAN v DPP 2011 3 IR 356 2012 1 ILRM 221 2011/40/11571 2011 IESC 30

O'G (J) v GOVERNOR OF CORK PRISON 2007 2 IR 203 2006/46/9813 2006 IEHC 236

G (B) v DISTRICT JUDGE MURPHY & ORS UNREP HOGAN 20.9.2011 2011/22/5797 2011 IEHC 359

DCR O.12 r17

CONSTITUTION ART 40

LIU v GOVERNOR OF DOCHAS CENTRE UNREP HOGAN 6.10.2011 2011/31/8610 2011 IEHC 372

EJERENWA v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 28.10.2011 2011/20/5060 2011 IESC 41

CRIMINAL LAW (INSANITY) ACT 2006 S13(1)

CRIMINAL LAW (INSANITY) ACT 2006 S13(2)

CRIMINAL JUSTICE ACT 2006 S197

CRIMINAL LAW (INSANITY) ACT 2006 S13(2)(A)

CRIMINAL LAW (INSANITY) ACT 2006 S4

CRIMINAL LAW (INSANITY) ACT 2006 S13(4)

CRIMINAL LAW (INSANITY) ACT 2006 S13(5)

CRIMINAL LAW (INSANITY) ACT 2006 S13(7)

CRIMINAL LAW (INSANITY) ACT 2006 S13(9)

CRIMINAL LAW (INSANITY) ACT 2006 S5

B (J) v MENTAL HEALTH (CRIMINAL LAW) REVIEW BOARD & ORS 2011 2 IR 15 2008/2/405 2008 IEHC 303

L v KENNEDY & CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL 2011 2 IR 124 2011 2 ILRM 41 2010/27/6702 2010 IEHC 195

CRIMINAL LAW (INSANITY) ACT 2006 S5(2)

CRIMINAL LAW (INSANITY) ACT 2006 S13(6)

CRIMINAL LAW (INSANITY) ACT 2006 S13(8)

CLARKE, IN RE 1950 IR 235

R (M) v BYRNE & FLYNN 2007 3 IR 211 2007/52/11211 2007 IEHC 73

I (K) v MIN FOR JUSTICE UNREP HOGAN 22.2.2011 2011/26/6999 2011 IEHC 66

CRIMINAL LAW (INSANITY) ACT 2006 S13(7)(A)

DILLON v MIN FOR POSTS & TELEGRAPHS UNREP SUPREME 3.6.1981 1981/9/1589

CRIMINAL LAW (INSANITY) ACT 2006 S13(3)

BYRNE, STATE v FRAWLEY 1978 IR 326

H (J) v RUSSELL (CLINICAL DIRECTOR OF CAVAN GENERAL HOSPITAL) 2007 4 IR 242 2007/27/5562 2007 IEHC 7

DOYLE v DIRECTOR OF THE CENTRAL MENTAL HOSPITAL & LYNCH UNREP FINLAY GEOGHEGAN 20.3.2007 2007/16/3286 2007 IEHC 100

B (J) v DIRECTOR OF THE CENTRAL MENTAL HOSPITAL & HEARNE 2008 3 IR 61 2007/4/727 2007 IEHC 340

CRIMINAL LAW

Insanity

Detention - Legality - Jurisdiction - Ultra vires - Mental health - Fitness to be tried - In patient treatment - Procedure where accused found unfit to be tried - Procedure where court ordered detention for in patient treatment - Whether court required to remand accused following finding of unfitness to be tried - Whether court required to consider fresh evidence of approved medical officer before detaining accused for in patient treatment - Whether failure to consider fresh report rendered order for detention ultra vires - Whether detention unlawful - Whether fact that invalid order for detention could be rectified could validate order for purpose of Article 40 inquiry - Mental Health (Criminal Law) Review Board - Whether referral of patient to Board superseded original District Court order - Whether Board made subsequent order for detention - Statutory interpretation - Purposive approach - Interests and welfare of patient - Whether court should interpret act purposively to protect interests and welfare of patient - JB v Mental Health (Criminal Law) Review Board [2008] IEHC 303, [2011] 2 IR 15 considered; L v Kennedy [2010] IEHC 195, [2011] 2 IR 124 not followed; Ejerenwa v Governor of Cloverhill Prison [2011] IESC 41, (Unrep, SC, 28/10/2011), Liu v Governor of the Dochas Centre [2011] IEHC 372, (Unrep, Hogan J, 6/10/2011), J O'G v Governor of Cork Prison [2006] IEHC 236, [2007] 2 IR 203 approved; BG v District Judge Murphy (No. 1) [2011] IEHC 359, (Unrep, Hogan J, 20/9/2011) distinguished; In re Philip Clarke [1950] IR 235, MR v. Byrne [2007] IEHC 73, [2007] 3 IR 211 approved - Criminal Law (Insanity) Act 2006 (No 11), ss 4 and 13 - Constitution of Ireland 1937, Article 40.4.2 - Release ordered (2012/637SS Hogan J - 5/4/2012) [2012] IEHC 152

C(E) v Central Mental Hospital

1 JUDGMENT of Mr. Justice Gerard Hogan delivered on the 5th day of April, 2012

2 1. An apparent altercation between the applicant, Mr. C., and a member of An Garda Síochána, on Merrion Square in Dublin in early February, 2009 led to the applicant being charged with an offence under s. 11 of the Firearms and Offensive Weapons Act 1990. Specifically, Mr. C. was charged with producing a flask of petrol and a cigarette lighter with a view to intimidating the Garda in question. The applicant was subsequently remanded by the District Court in circumstances I will presently describe. The charging and subsequent detention of the applicant set in train the events which have given rise to this present application pursuant to Article 40.4.2 of the Constitution. This application in large part turns on the resolution of rather difficult questions of interpretation concerning the operation of the Criminal Law (Insanity) Act 2006 ("the Act of 2006").

3 2. Mr. C. fast came before the District Court on 13 ^th February, 2009. The attendance note prepared by the Chief Prosecution Solicitor indicated that the applicant was found to be very distressed on that date. While he was assigned legal aid, the presiding judge (Her Honour Judge Malone) evidently considered that a medical examination was warranted and that a hearing as to his fitness to plead would also be necessary. The applicant was remanded in custody to Cloverhill Prison. Following an adjournment, a report appears to have been prepared for the benefit of the District Court to the effect that the applicant was not fit to be tried. The prosecution sought time for directions and the case was adjourned on two occasions. It appears that on 8 ^th April, 2009 the case was adjourned for a psychiatric report.

4 3. In the interval, two medical orderlies at Cloverhill Prison certified on 5 ^th March, 2009 that Mr. C. was suffering from a mental disorder in respect of which he could not be afforded appropriate care and treatment within Cloverhill Prison. The Prison Governor accordingly exercised the powers vested in him by s.15(2) of the Act of 2006 and directed Mr. C.'s transfer to the Central Mental Hospital. (The Governor's certificate is actually dated the 5 ^th February, 2009, but this is an obvious slip and the reference should be to 5 ^th March, 2009). The transfer took place on the following day, 6 ^th March, 2009.

5 4. It would seem that on 8 ^th April, 2009, Judge Brady had requested that a psychiatric report be prepared in respect of Mr. C. by the Central Mental Hospital. A report had previously been prepared by Dr. Conor O'Neill, a consultant forensic psychiatrist attached to the Central Mental Hospital on 5 ^th February, 2009. This report was available to Dr. Olivia Gibbons, a Registrar in Psychiatry, who prepared a fresh report on 20 ^th April, 2009, under the supervision of Professor Harry Kennedy, the well-known consultant psychiatrist, who is the Director of the Central Mental Hospital and, indeed, the respondent to this application. This report, which was admirably comprehensive, sought to advise on matters of "psychiatric diagnosis, treatment and fitness to plead".

6 5. The matter next came before the District Court on the 23 ^rd April, 2009, and 21 ^st May, 2009. The precise sequence of events at those hearings and the order made by the Court on those occasions are central to the issues which arise on this application. It has proved somewhat difficult at this remove to determine precisely what did happen at these sittings and the actual order which has been produced is lamentably unclear. Before endeavouring to reconstruct these events, it is necessary first to examine the inter-action of two key statutory provisions, namely, s. 4(3) and s. 4(6) of the Act of 2006.

Key provisions of the 2006 Act: s. 4(3) and s. 4(6)

7 6. An analysis of the s. 4(3) and s. 4(6) of the Act of 2006 is central to a resolution of the legal issues which are presented by this application. Section 4(3)(a) declares that where a person is charged with an offence before the District Court, any question "as to whether or not the accused is fit to be tried shall be determined by the Court." Section 4(3)(b) next provides that in a case:-

"…to which paragraph (a) relates, the Court determines that an accused person is unfit to be tried, that Court shall adjourn the proceedings until further order…"

8 7. Pausing here, it will be seen that where the District Court has determined that the accused is unfit, it is obliged to adjourn the proceedings. Section 4(3)(b) then continues by providing that the Court may:-

9 i "(i) if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant to subsection (6) and any other evidence that may be adduced before it that the accused person is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, commit him or her to a specified designated centre until an order is made under section 13, or

10 (ii) if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant to subsection (6) and any other evidence that may be adduced before it...