G (B) v District Judge Murphy and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 20 September 2011
• Neutral Citation: [2011] IEHC 359
• Court: High Court
• Date: 20 September 2011

[2011] IEHC 359

THE HIGH COURT

[No. 1290JR/2010]

G (B) v District Judge Murphy & Ors

BETWEEN/

BG

APPLICANT

AND

DISTRICT JUDGE CATHERINE MURPHY, DIRECTOR OF PUBLIC PROSECUTIONS AND THE JUDGES OF THE DUBLIN CIRCUIT COURT

RESPONDENTS

Abstract:

Criminal law - Criminal procedure - Judicial review - Insanity - Fitness to plead - Summary disposal - Guilty plea - Determination of issues -Indictable offence - Effect of Criminal law (Insanity) Act 2006

Facts: The applicant had been charged with sexual assault pursuant to s. 2 Criminal Law (Rape) (Amendment) Act 1990, as amended. The Director of Public Prosecutions had indicated to the court that it would consent to summary disposal of the indictable offence only if the applicant pleaded guilty. The applicant had significant mental disabilities. The District Court Judge concluded that she had no jurisdiction, save if the applicant had pleaded guilty. The applicant was sent forward then to the Circuit Court. The question arose as to which court should determine the fitness to plead issue and whether the applicant was deprived of the right to please guilty in the District Court following a summary disposal of the matter, pursuant to the Criminal Law (Insanity) Act 2006.

Held by Hogan J. that the Court would uphold the validity of the Order of the District Judge. In light of this construction of the Act of 2006, the constitutional issues fell next to be determined. The order in question was purely procedural. There could be no doubt what the District Court Judge intended to do and what she did. The applicant could have sought to have had the orders rectified if necessary. The District Court was obliged to return the applicant to the Circuit Court.

Reporter: E.F.

1 1. The Criminal Law (Insanity) Act 2006 ("the 2006 Act") may be said to represent a modern, enlightened and humane response on the part of the Oireachtas to the plight of those afflicted by mental illness so far as their criminal responsibility is concerned. These judicial review proceedings present, however, a difficult point of statutory interpretation so far as one aspect of the construction of the 2006 Act is concerned.

2 2. The problem arises in the following fashion. The applicant is a 49 year old man with significant mental disabilities and intellectual deficits who has been charged with the sexual assault of a female, contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 (as amended)("the 1990 Act"). It is clear from the medical evidence which is exhibited to the applicant's solicitor's affidavit that histreating consultant psychiatrist does not consider that he is fit to stand trial within the meaning of s. 4(2)(c) of the 2006 Act. I express no view on that question, but merely draw attention to this evidence in order to highlight the concerns which his legal advisers must properly have had in relation to this matter.

3 3. When the applicant originally came before the District Court in January 2010 it was indicated to the court that the Director of Public Prosecutions would consent to summary disposal of this indictable offence only if the applicant pleaded guilty. There then followed a series of adjournments which were variously designed to facilitate the making of appropriate disclosure by the prosecution and to obtain appropriate professional legal and psychiatric evidence. Matters came to a head in July 2010 when the Director outlined his position in writing:-

"The DPP directed that the charge before the court proceed on indictment pursuant to s. 13 of the Criminal Procedure Act 1967. There is consent to the matter being disposed of if all the conditions of that section are met. Since a fitness to plead issue has arisen, the accused is not in a position to enter a plea, therefore s. 13 of the Criminal Procedure Act cannot be utilised. The fitness to plead issue therefore has to be determined by the Circuit Court. We will be making the application for the accused to be returned for trial for the fitness to be tried issue to be determined."

4 4. Following a full hearing on 23 ^rd July, 2010, on the issue, District Judge Murphy concluded that she had no jurisdiction in the matter, save in the event that the applicant pleaded guilty. The prosecution solicitor, Ms. Farrell, confirmed that the Director wanted the issue of the applicant's fitness to plead to be sent forward for hearing to the Circuit Court. District Judge Murphy acceded to this submissionand then sent the applicant forward on bail to the next sittings of the Dublin Circuit Court so that his fitness to plead could be determined by a judge of that Court.

5 5. Here, then, is the nub of the main problem in this matter, namely, which court should determine the fitness to plead issue. Counsel for the Director, Mr. McDermott, submits that this decision has been assigned to the Circuit Court. Counsel for the applicant, Mr. O'Higgins SC, disputes this. He submits that this construction would be anomalous since it would mean that if it were ultimately held that the applicant was fit to plead, he would have been deprived of the right to plead guilty in the District Court following a summary disposal of the matter. In the event of a guilty plea, it would be before a judge of the Circuit Court who would be free - in theory, at least - to sentence the applicant as if he had pleaded guilty to an indictable offence following a conventional return for trial.

6 6. Yet, on this hypothesis, since the District Court cannot determine whether the applicant was indeed fit to plead, this would mean that the applicant's legal advisers would not be in a position to give him appropriate advice as to whether he should indeed plead guilty in the District Court, thereby accepting the Director's offer, since his mental capacity to take such a step was, as a matter of law, in serious doubt.

7 7. This, accordingly, is the issue of statutory construction which presents itself for resolution at this juncture. It may be convenient, however, if I here observe that in an earlier stage of these proceedings I permitted the applicant to amend his pleadings to enable him to raise both constitutional and ECHR issues in the event that the Director's argument regarding the construction of the 2006 Act was correct. The parties are agreed, however, that I should first proceed to determine the issue of construction, with the constitutional issue (and, indeed, if...