F.X. v Clinical Director of Central Mental Hospital

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 03 July 2012
• Neutral Citation: [2012] IEHC 271
• Docket Number: [2012 No. 1258 SS]
• Court: High Court
• Date: 03 July 2012

[2012] IEHC 271

THE HIGH COURT

[No. 1258 SS/2012]

X (F) v Clinical Director Of Central Mental Hospital & DPP

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

BETWEEN/

F.X.

APPLICANT

AND

CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

CRIMINAL LAW (INSANITY) ACT 2006 S4(5)(C )(I)

CONSTITUTION ART 40.4.2

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S11(1)

CONSTITUTION ART 34.3.1

CONSTITUTION ART 34.4.3

MCHUGH v MINISTER FOR JUSTICE & ORS 2012 IEHC 110

RSC O.84

DPP v QUILLIGAN (NO2) 1989 IR 46

O, STATE v O'BRIEN 1973 IR 50

CHILDREN ACT 1908 S103

MCDONAGH, STATE v FRAWLEY 1978 IR 131

O'BRIEN v GOVERNOR OF LIMERICK PRISON 1997 2 ILRM 349

CAFFREY v GOVERNOR OF PORTLAOISE PRISON 2012 IESC 4

CANNON, STATE v KAVANAGH 1937 IR 428

CRIMINAL LAW (INSANITY) ACT 2006 S13 3(A)

CENTRAL MENTAL HOSPITAL S4(5)(C)

C (E ) v CLINICAL DIRECTOR OF CENTRAL MENTAL HOSPITAL UNREP HOGAN 5.4.2012 2012 IEHC 152

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

CRIMINAL LAW (INSANITY) ACT 2006 S4(3)( C )(I)

CRIMINAL LAW (INSANITY) ACT 2006 S5(2)

CRIMINAL LAW (INSANITY) ACT 2006 S13(4)

CRIMINAL LAW (INSANITY) ACT 2006 S13(6)

KADRI v GOVERNOR OF CLOVERHILL PRISON UNREP FENNELLY 10.5.2012 2012 IESC 27

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

CRIMINAL LAW (INSANITY) ACT 2006 S4(5)(B)

CRIMINAL LAW (INSANITY) ACT 2010 S4(D)

CRIMINAL LAW (INSANITY) ACT 2006 S4(6)(B)

CRIMINAL LAW (INSANITY) ACT 2006 S4(5)( C ) (I)

CRIMINAL LAW (INSANITY) ACT 2006 S4(E)

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

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

GOODEN v ST OTTERANS HOSPITAL 2005 3 IR 617

H ( E) v CLINICAL DIRECTOR OF ST VINCENTS HOSPITAL 2009 IR 774

MONAGHAN UDC v ALF-A- BET PROMOTIONS LTD 1980 ILRM 64

MENTAL HEALTH ACT 2001 SS23

MENTAL HEALTH ACT 2001 SS24

CRIMINAL LAW (INSANITY) ACT 2006 S9(1)

CRIMINAL LAW (INSANITY) ACT 2006 S9(4)

COSTELLO, LAW OF HABEAS CORPUS IN IRELAND 2006 207

DPP v KAVANAGH 2012 IECCA 65

MURPHY v AG 1982 IR 241

CONSTITUTIONAL LAW

Detention

Lawfulness - Remedy - Immediate release - Stay -Habeas corpus - Mental health - Accused detained as unfit to plead, suffering from mental disorder and in need of in-patient care - Statutory requirements followed - Detention unlawful - Whether stay can be put on order for release - N v HSE [2006] IESC 60, [2006] 4 IR 374 applied; JH v Russell (Mental Health) [2007] IEHC 7, [2007] 4 IR 242 and Doyle v Central Mental Hospital [2007] IEHC 100, (Unrep, Finlay Geoghegan J, 20/3/2007) followed; A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 and Kinsella v Governor of Mountjoy Prison [2011] IEHC 235, [2011] 2 ILRM 509 considered; SC v Jonathan Swift Clinic, St James's Hospital (Unrep, SC, 5/12/2008) distinguished - Constitution of Ireland 1937, Article 40.4.2 - Release directed but with stay (2012/1258SS - Hogan J - 8/7/2012) [2012] IEHC 272

X(F) v Central Mental Hospital

COURTS

Jurisdiction

Detention - Lawfulness - Habeas corpus - Mental health -Accused detained as unfit to plead, suffering from mental disorder and in need of in-patient care - Whether detained on foot of High Court order - Whether court can hear habeas corpus application in respect of detention order of High Court - Whether statutory requirements followed - The State (O) v O'Brien [1973] IR 50, The State (McDonagh) v Frawley [1978] IR 131, The People (DPP) v Quilligan (No 2) [1989] IR 46, O'Brien v Governor of Limerick Prison [1997] 2 ILRM 349, Caffrey v Governor of Portlaoise Prison [2012] IESC 4, [2012] 2 ILRM 88 and McHugh v Minister for Justice and Equality [2012] IEHC 110, (Unrep, Hogan J, 9/3/2012) considered. Monaghan Urban District Council v Alf-a-Bet Promotions Ltd [1980] ILRM 64 applied; EC v Clinical Director of the Central Mental Hospital [2012] IEHC 214, (Unrep, Hogan J, 5/4/2012) followed; EH v Clinical Director of St. Vincent's Hospital [2009] IESC 46, [2009] 3 IR 774 distinguished - Criminal Law (Insanity) Act 2006 (No 11), s 4(5) and (6) - Constitution of Ireland 1937, Article 40.4.2- Finding of unlawfulness but release not directed (2012/1258SS - Hogan J - 3/7/2012) [2012] IEHC 271

X(F) v Central Mental Hospital

Facts The applicant was detained in the Central Mental Hospital pursuant to an order made on 26 March 2012 by Mr Justice Carney sitting in the Central Criminal Court pursuant to s. 4(5)(c)(i) of the Criminal Law (Insanity) Act 2006. Carney J. heard the evidence of an approved Medical Officer and determined that the applicant was unfit to be tried. The medical diagnosis was that the applicant suffered from chronic paranoid schizophrenia and the evidence showed that he was seriously disturbed and presented a very serious threat to himself and others. The Mental Health (Criminal Law) Review Board simply reviewed the case of the applicant but did not make any order pursuant to section 13 of the Criminal Law (Insanity) Act 2006. The applicant herein sought to be released pursuant to Article 40.4.2 of the Constitution on the grounds that his detention was unlawful.

Held by Hogan J. in directing the release of the applicant but adjourning the making of any order pending further argument regarding the most appropriate remedy in the circumstances of this case: That this case raised an important jurisdictional issue regarding whether the High Court could grant an order of release under Article 40.4.2 in the circumstances where the applicant was detained pursuant to an order made by the Central Criminal Court. Article 40.4.2 by preserving the right of every citizen to apply to the "High Court and any and every judge thereof" provides a special exception to the principle of the 'Unitary High Court' established by Article 34.3.1 of the Constitution. The Article 40.4.2 jurisdiction extends to orders for detention made by this court, whether sitting as the Central Criminal Court or otherwise but is confined to ascertaining whether the strict limits of a statutorily conferred jurisdiction have been complied with on the face of the order. The legal basis for the applicant's detention was the order made by Carney J. Once Carney J. determined that the applicant was unit to be tried, he was obliged by virtue of s. 4(5)(c) to adjourn the proceedings and had the option of committing the applicant to either in-patient or out-patient care. As the applicant herein was admitted to in-patient treatment, Carney J. was then required to consider the evidence of an approved medical officer adduced pursuant to section 4(6)(b). However, this was not done. Although Carney J. heard the evidence of a Medical Officer this evidence was not adduced pursuant to s. 4(6)(b) since that would have required the court to make an order providing for the detention of the applicant at the Central Mental Hospital for an initial period of 14 days, his examination there and the subsequent presentation of a report for the benefit of the Central Criminal Court. It seems that the prescribed two stage process was compressed herein to a single stage. Notwithstanding the fact that compliance with the statutory requirements mentioned would most likely not have altered the result herein, Article 40.4.2 is not a discretionary remedy. The applicant's detention was not valid on the face of the order and was therefore unlawful.

1 1. This applicant is currently detained in the Central Mental Hospital pursuant to an order of the Central Criminal Court made on the 26 ^th March 2012 under s. 4(5)(c)(i) of the Criminal Law (Insanity) Act 2006 ("the Act of 2006"). He now seeks his release pursuant to Article 40.4.2 of the Constitution. This application raises very difficult questions of far reaching importance concerning the scope and reach of the Article 40.4.2 procedure and the interpretation of the Act of 2006.

2 The application itself raises from tragic circumstances. The applicant was charged with a very serious criminal offence before the Central Criminal Court and he was found unfit to plead by Carney J. This medical diagnosis is that the applicant suffers from chronic paranoid schizophrenia which is resistant to treatment. The overwhelming evidence is that the applicant is seriously disturbed and that he presents a very serious threat to himself, identifiable individuals and to the general public were he to be released from custody. It is only appropriate to record here that his mother and wider family have endeavoured to support him, while recognising his acute difficulties. It is, I think, important that her dedication to his welfare in extremely difficult circumstances should be publicly acknowledged.

3 3. I should further record that I made an order pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008, prohibiting the identification of the applicant or any member of his family. In this regard I was satisfied that the identification of the applicant would seriously compromise his medical treatment and would draw unwelcome attention to his plight.

4 4. Before considering the questions of interpretation arising under the Act of 2006, it is necessary first to raise an important jurisdictional issue: can this Court grant an order of release under Article 40.4.2 where the order detaining the applicant has been made by the Central Criminal Court?

The jurisdiction of the High Court to make an Article 40 order in respect of another judge of the High Court

5 5. Section 11 (1) of the Courts (Supplemental Provisions) Act 1961 provides that when the High Court exercises the criminal jurisdiction with which it is invested by law itshall be known as the Central Criminal Court. It is true that the Central Criminal...