Fitness for trial in the district court: the legal perspective

AuthorDarius Whelan
PositionLecturer in Law, Faculty of Law, University College Cork
Judicial Studies Institute Journal [2007:2
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
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
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

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