Fitness for trial in the district court: the legal perspective

• Author: Darius Whelan
• Position: Lecturer in Law, Faculty of Law, University College Cork
• Pages: 124-140

Judicial Studies Institute Journal [2007:2

124

FITNESS FOR TRIAL IN THE DISTRICT

COURT: THE LEGAL PERSPECTIVE

DARIUS WHELAN∗

Reform of the law on fitness to plead has been discussed for

decades. For example, in 1978, the Henchy Committee produced

a report outlining major changes which were necessary.1 The

Criminal Law (Insanity) Act 2006, enacted 28 years after the

Henchy report, finally came into force on 1 June 2006 and

introduces significant changes to the law in this area.

There are a number of useful sources which may be

consulted for description and analysis of the law prior to the

enactment of this new legislation.2 The Act does not change the

common law definition of unfitness to plead, but instead the

changes it introduces concentrate on important procedural

questions such as the introduction of automatic periodic reviews

of detention and provision for appeals from fitness to plead

decisions.3

_____________________________________________________

∗ Lecturer in Law, Faculty of Law, University College Cork. This article is

based on the text of an address delivered at the Annual Conference of the

District Court, organised under the auspices of the Judicial Studies Institute, on

27 April 2007.

1 Third Interim Report of the Interdepartmental Committee on Mentally Ill and

Maladjusted Persons. Treatment and Care of Persons Suffering from Mental

Disorder Who Appear Before the Courts on Criminal Charges [Chair: Henchy

J.] (Prl. 8275, J85/1, Stationery Office, Dublin, 1978).

2 See for example, McAuley, Insanity, Psychiatry and Criminal Responsibility

(Round Hall Press, Dublin, 1993); Casey & Craven, Psychiatry and the Law

(Oak Tree Press, Dublin, 1999); Charleton, McDermott & Bolger, Criminal

Law (Butterworths, Dublin, 1999); Hanly, An Introduction to Irish Criminal

Law (2nd ed., Gill and Macmillan, Dublin, 2006); McIntyre & McMullan,

Criminal Law (2nd ed., Thomson Round Hall, Dublin, 2005); Whelan, “Some

Procedural Aspects of Insanity Cases” (2001) 11(3) Irish Criminal Law

Journal 3; Whelan, “Fitness to Plead and Insanity in the District Court” (2001)

11(2) Irish Criminal Law Journal 2.

3 For general reviews of the Act see McGillicuddy, “The Criminal Law

(Insanity) Act 2006” (2006) 11 Bar Review 95 and Whelan, “The Criminal

Law (Insanity) Act 2006” (2006) Irish Current Law Statutes Annotated. For

commentary on earlier versions of the Bill, see Conway, “Fitness to Plead in

2007] Fitness for Trial in the District Court

125

One of the reasons the Act was introduced was to attempt to

satisfy the requirements of the European Convention on Human

Rights. Under Article 5(4) of the Convention, everyone who is

deprived of their liberty by arrest or detention is entitled to take

proceedings by which the lawfulness of their detention will be

decided speedily by a court and their release ordered if the

detention is not lawful. According to media reports, the Trial of

Lunatics Act 1883 was being challenged as a breach of the

Constitution and the European Convention.4

This paper concentrates on fitness for trial in the District

Court and will deal with the topic under two main headings:

firstly, how does the District Court determine fitness for trial and

secondly, the consequences of a finding of unfitness for trial.

In other jurisdictions, a judge in a court at equivalent level

to the District Court might well have a larger number of

possibilities open to him or her in dealing with a person who has a

mental disorder. For example, in England and Wales, courts have

wider powers to remand a person to hospital for a report on their

medical condition, or to make a hospital order without

conviction.5 There are also more developed policies and schemes

for diversion of people with mental disorders from the criminal

justice system.6 In some other jurisdictions, mental health courts

have been established to cope with the complexity of the

interaction between criminal law and mental health.7

Light of the Criminal Law (Insanity) Bill 2002” (2003) 13(4) Irish Criminal

Law Journal 2; Mills, “Criminal Law (Insanity) Bill 2002: Putting the Sanity

Back into Insanity” (2003) 8 Bar Review 101; Robinson, “Crazy Situation”

(2003) 97 (1) Law Society Gazette 12.

4 Mary Carolan, ‘Man who threw daughter from bridge challenges his

detention’, Irish Times, 21 June 2005.

5 See Bartlett & Sandland, Mental Health Law: Policy and Practice (3rd ed.,

Oxford: Oxford University Press, 2007), chapter 6. For statistical analysis see

Mackay, Mitchell & Howe, “A Continued Upturn in Unfitness to Plead - More

Disability in relation to the Trial under the 1991 Act” [2007] Criminal Law

Review 530.

6 For the current situation in Ireland, see O'Neill, “Liaison between Criminal

Justice and Psychiatric Systems: Diversion Services” (2006) 23(3) Irish

Journal of Psychological Medicine 87.

7 Erickson et al, “Variations in Mental Health Courts: Challenges,

Opportunities, and a Call for Caution” (2006) 42 Community Mental Health