DPP v Gallagher

• Jurisdiction: Ireland
• Judge: McCarthy J.
• Judgment Date: 12 February 1991
• Neutral Citation: 1991 WJSC-SC 404
• Docket Number: (386/90)
• Court: Supreme Court
• Date: 12 February 1991

DPP v. GALLAGHER

DIRECTOR OF PUBLIC PROSECUTIONS

.V.

JOHN GALLAGHER

1991 WJSC-SC 404

(386/90)

(388/90)

(401/90)

THE SUPREME COURT

Synopsis:

CONSTITUTION

Courts

Administration of justice - Judge - Order - Form - Accused - Detention - Trial on indictment - Jury - Special verdict - Guilty but insane - Detention until pleasure of Government be known - (388 & 401/90 - Supreme Court - 12/2/91) - [1991] 1 I.R. 31

|The People v. G.|

CRIMINAL LAW

Defence

Insanity - Jury - Verdict - Guilty but insane - Form of order - Special statutory verdict - Detention during pleasure of the Government - Review of accused's detention - Review being executive function of the Government - Administration of justice - Criminal trial - Conclusion - Trial of Lunatics Act, 1883, ss. 2, 3 - Adaptation of Enactments Act, 1922, s. 11 - Constitution of Ireland, 1937, Articles 28, 34, 49, 50 - (388 & 401/90 - Supreme Court - 12/2/91) - [1991] 1 I.R. 31 - [1991] ILRM 339

|The People v. G.|

LUNACY

Crime

Defence - Insanity - Jury - Special verdict - Guilty but insane - Form of order - Detention of accused - Review - Function of the Government - (388 & 401/90 - Supreme Court - 12/2/91) 1991 1 I.R. 31

|The People v. G.|

ORDER

Form

Offence - Trial - Indictment - Jury - Special verdict - Guilty but insane - Victorian statute - Mandatory order prescribed - Detention until pleasure of Lord Lieutenant be known - Administration of justice not involved - Detention during pleasure of the Government - (388 & 401/90 - Supreme Court - 12/2/91) - [1991] 1 I.R. 31 - [1991] ILRM 339

|The People v. G.|

WORDS AND PHRASES

"Administration of justice"

Trial - Indictment - Defence - Insanity - Jury - Special verdict - Guilty but insane - Form of order - Detention of accused - Review - Function of the Government - (388 & 401/90 - Supreme Court - 12/2/91) - [1991] 1 I.R. 31 - [1991] ILRM 339

|The People v. G.|

Citations:

TRIAL OF LUNATICS ACT 1883 S2(2)

TRIAL OF LUNATICS ACT 1883 S3

ADAPTATION OF ENACTMENTS ACT 1922 S11

DEFENCE ACT 1954 S203

COURTS MARTIAL APPEALS ACT 1983 S6

MENTAL TREATMENT ACT 1945 S284

HEALTH (MENTAL SERVICES) ACT 1981 S50

HEALTH (MENTAL SERVICES) ACT 1981 S7

DPP V ELLIS UNREP CCC 9.2.90

CONSTITUTION SAORSTAT EIREANN ART 73

DPP V NEILAN 1990 2 IR 267 1991 ILRM 184

CONSTITUTION ART 50

CONSTITUTION SAORSTAT EIREANN ART 2

CONSTITUTION SAORSTAT EIREANN ART 64

CONSTITUTION ART 34

CONSTITUTION ART 49

O, STATE V O'BRIEN 1973 IR 50

MENTAL TREATMENT ACT 1945 S165

CLARKE, IN RE 1950 IR 238

TRIAL OF LUNATICS ACT 1883 S2

MENTAL TREATMENT ACT 1945 PART VIII

CONSTITUTION ART 38

McCarthy J.

[Nem Diss]

1 The question raised on this appeal is the true construction of Section 2.2 of the Trial of Lunatics Act, 1883. Section 2 reads as follows:-

"(1) Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid at the time when he did the act or made the omission."

2 (2) (as modified by Section 3) Where such special verdict is found, the Court shall order the accused to be kept in custody as a criminal lunatic, in such place and in such manner as the Court shall direct till the pleasure of the Lord Lieutenant shall be known; and it shall be lawful for the Lord Lieutenant thereupon, and from time to time, to give such order for the safe custody of the said person during pleasure, in such place and in such manner as to the Lord Lieutenant may seem fit."....

3 On the 19th July 1989, at the Central Criminal Court, a jury did return a special verdict to the effect that John Gallagher was guilty of the act charged against him but was insane at the time. The order of the Central Criminal Court was that he be detained in the Central Mental Hospital until further order. On the 29th January, 1990, he applied to the High Court, Johnson J., sitting at the Central Criminal Court, for his release; Johnson J. amended the Order of the 19th July 1989 and, by Order of the 14th December 1990, did order that John Gallagher be detained in the Central Mental Hospital Dundrum until the pleasure of the Government of Ireland is known. The form of that order derived from the effect of the Adaptation of Enactments Act,1922, of which Section 11 provided:-

"(1) Subject and without prejudice to the specific adaptations made by this Act or by any Order made under the authority of this Act, every mention or reference contained in any British Statute of or to any Minister, Official, Department or Authority of the Government of the late United Kingdom or of the late British Government in Ireland including the Lord Lieutenant exercising executive functions shall in respect of the doing or not doing of any act, matter or thing after the 6th day of December, 1922, be construed and take effect as a mention of or reference to the Minister, Official, Department or Authority in Saorstát Eireann exercising in Saorstát Eireann functions the same as or corresponding to the functions exercised in respect of the area now comprised in Saorstát Eireann by such Minister, Official, Department or Authority of the Government of the late United Kingdom or the late British Government in Ireland prior to the 6th day of December, 1921; but this section shall not apply to any provision contained in any such Statute relating to the remuneration of any Minister or other official.

(2) If any question shall arise as to which Minister, Official, Department or Authority exercises in Saorstát Eireann functions the same as or corresponding to the functions exercised by any Minister, Official, Department or Authority of the Government of the late United Kingdom or of the late British Government in Ireland, such question shall be determined by the President of the Executive Council, whose decision shall be final."

4 Historically, the Act of 1883 was applied in its original form before the establishment of Saorstát Eireann in 1921 and since that date as adapted until about 1973 when a practice arose of making an order in the form first used by Johnson J. This form of order is reflected in Section 203 of the Defence Act1954, as amended by Section 6 of the Courts-Martial Appeals Act1983by virtue of which, in a like situation arising at a court-martial, "the court-martial shall order that such person be kept in custody in an institution suitable for the detention of such person until further order of the High Court, which court shall for that purpose have all the powers which a judge of the Central Criminal Court would have had if such person had been tried before him". There does not appear to have been any amendment of the 1883 Act since its enactment. Section 284 of the Mental Treatment Act1945recognised the continuing effect of Section 2 of the 1883 Act, identified as a specified section for the purposes of Section 284 which...