J.B. v Mental Health (Criminal Law) Review Board and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 25 July 2008
• Neutral Citation: [2008] IEHC 303
• Court: High Court
• Docket Number: [2007 No. 1517 J.R.]
• Date: 25 July 2008

B (J) v Mental Health (Criminal Law) Review Board & Ors

JUDICIAL REVIEW

BETWEEN

J.B.

APPLICANT

AND

THE MENTAL HEALTH (CRIMINAL LAW) REVIEW BOARD, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE CENTRAL MENTAL HOSPITAL

NOTICE PARTY

[2008] IEHC 303

[No. 1517 J.R./2007]

THE HIGH COURT

MENTAL HEALTH

Detention

Central Mental hospital - Discharge - Conditional - Application for order compelling conditional discharge of applicant- Statutory framework - Preconditions for order of detention - Powers of Board - Whether applicant entitled to be discharged subject to conditions - Deprivation of liberty - Whether continued detention compatible with Convention - Whether applicant fulfilled criteria which authorised continued detention - Whether suffering from mental illness - Whether applicant required continued in-patient treatment - No provision for enforcement of conditions - Whether release of applicant in absence of suitable enforcement regime amounted to unconditional discharge of the applicant - Absence of compliance mechanism - Clear and unambiguous interpretation of Act - Whether any power to enforce conditions including power to recall patient - Effective implementation of treatment or supervisory regime - Interpretation - Cannons of construction - Literal test - Natural and ordinary meaning - Intention of Oireachtas - Purposive approach - Nature and purpose of Act - Act silent as to any regime for the supervision of a person provisionally discharged from a designated centre - No statutorily created means of enforcing any conditions imposed - No supervisory functions once discharging order effected - Whether court should interpret Act purposively to such extent as to identify implicit authority to enforce compliance - Whether Board acted lawfully and within jurisdiction in ordering further detention - Whether applicant at liberty to degree commensurate with medical needs - Public interest - Whether finding that mental disorder which justified patient's compulsory confinement no longer persisted meant applicant must be immediately and unconditionally released - Keane v An Bord Pleanála [1997] 1 IR 184, DPP (Ivers) v Murphy [1999] 1 IR 98, Dundon v Governor of Cloverhill Prison [2005] IESC 83, [2006] 1 I.R. 518, MR v Byrne [2007] IEHC 73, [2007] 3 IR 211, Application of Gallagher (No. 2) [1996] 3 IR 10, Gooden v St. Otteran's Hospital [2005] 3 IR 617, Re Philip Clarke [1950] IR 235, Luberti v Italy (1984) 6 E.H.R.R. 440 and Inspector of Taxes v Kiernan [1981] IR 118 considered - Winterwerp v Netherlands (1979 - 1980) 2 EHRR 387 and Johnson v UK (1999) 27 EHRR 296 distinguished - Mental Health Act 2001 (No 25), s 3 - European Convention on Human Rights Act 2003 (No 20), ss 2(1) and 3(1) - Interpretation Act 2005 (No 23), s 5 - Criminal Law (Insanity) Act 2006 (No 11), ss 5(2) and 13(8) - Criminal Justice Act 2006 (No 26), s 197 - Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, art 5 - Constitution of Ireland 1937, article 40.4.1 - Continued detention authorised (2007/1517JR- Hanna J - 25/7/2008) [2008] IEHC 303

B(J) v Mental Health (Criminal Law) Review Board

Facts: The applicant who had been found not guilty by reason of insanity was detained in a Mental Hospital. The issue arose as to his release and the conditions proscribed by a medical team. The applicant sought inter alia to have his release directed by the Review Board, a declaration that he was entitled to be discharged subject to conditions and a declaration that the failure to discharge the applicant was ultra vires the Criminal Justice Act 2006. The applicant alleged that the refusal of a conditional discharge was incompatible with Article 5 ECHR.

Held by Hanna J. that the situation of the applicant was not sufficient to ground a claim pursuant to Article 5 ECHR. The applicant was afforded a significant measure of liberty founded upon unanimous medical advice. The outcome was not fortuitous. The Act of 2006 was not incompatible with the EHCR

Reporter: E.F

CRIMINAL LAW (INSANITY) ACT 2006 S13(8)

CRIMINAL JUSTICE ACT 2006 S197

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

CRIMINAL LAW (INSANITY) ACT 2006 S13

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

CRIMINAL LAW (INSANITY) ACT 2006 S12(8)

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

TRIAL OF LUNATICS ACT 1883 S2 (UK)

CRIMINAL LAW (INSANITY) ACT 2006 S20(2)

CRIMINAL LAW (INSANITY) ACT 2006 S5(2)

MENTAL HEALTH ACT 2001 S3

CRIMINAL LAW (INSANITY) ACT 2006 S11

CRIMINAL LAW (INSANITY) ACT 2006 S11(2)

CRIMINAL LAW (INSANITY) ACT 2006 S12

CRIMINAL LAW (INSANITY) ACT 2006 S13(2)

CRIMINAL LAW (INSANITY) ACT 2006 S13(3)

CRIMINAL LAW (INSANITY) ACT 2006 S13(4)

CRIMINAL LAW (INSANITY) ACT 2006 S4

DEFENCE ACT 1954 S202

CRIMINAL LAW (INSANITY) ACT 2006 S13(5)

CRIMINAL LAW (INSANITY) ACT 2006 S13(6)

CRIMINAL LAW (INSANITY) ACT 2006 S5

CRIMINAL LAW (INSANITY) ACT 2006 S13(7)

CRIMINAL LAW (INSANITY) ACT 2006 S13(8)

CRIMINAL LAW (INSANITY) ACT 2006 S14

CRIMINAL LAW (INSANITY) ACT 2006 S14(5)

CRIMINAL LAW (INSANITY) ACT 2006 S14(7)

WINTERWERP v THE NETHERLANDS 1979-80 2 EHRR 387

JOHNSON v UNITED KINGDOM 1999 27 EHRR 296

KEANE & NAUGHTON v BORD PLEANALA & ORS 1997 1 IR 184 1995/19/4816

INSPECTOR OF TAXES v KIERNAN 1981 IR 117 1982 ILRM 13

HOWARD & ORS v CMRS OF PUBLIC WORKS 1994 1 IR 101

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998/16/5907

DUNDON v GOVERNOR OF CLOVERHILL PRISON 2006 1 IR 518 2006 1 ILRM 321 2005/17/3552 2005 IESC 83

CONSTITUTION ART 40.4.1

GALLAGHER v DIRECTOR OF CENTRAL MENTAL HOSPITAL (NO 2) 1996 3 IR 10 1996/11/3393

CONSTITUTION ART 40

R (M) v BYRNE & ORS 2007 3 IR 211

CLARKE, IN RE 1950 IR 235

GOODEN v ST OTTERAN'S HOSPITAL 2005 3 IR 617

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.1(E)

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.4

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5.1

LUBERTI v ITALY 1984 6 EHRR 440

1 Mr. Justice Hanna delivered the 25th day of July, 2008.

2 By order dated the 19th November, 2007, the applicant in this case was given leave to apply for judicial review. The applicant was permitted to seek a number of reliefs:

3 (i) A declaration that in light of the factual determination contained within the "Report of Mental Health (Criminal Law) Review Board, Second Hearing - 1st June, 2007", the applicant is entitled to be discharged subject to such conditions as may be deemed appropriate by the Mental Health (Criminal Law) Review Board in accordance with s. 13(8) of the Criminal Law (Insanity) Act 2006, as amended by s. 197 of the Criminal Justice Act 2006, (hereinafter referred to as "the Act of 2006").

4 (ii) A declaration that insofar as the Act of 2006 fails to state expressly the mariner in which such conditions as may be imposed by the first respondent pursuant to s. 13(8) of the Act of 2006 should be enforced, the Central Mental Hospital is obliged to develop a protocol in that regard.

5 (iii) An order of mandamus directed towards the first respondent compelling it to make an order authorising the conditional discharge of the applicant from the custody of the Central Mental Hospital, subject to such conditions as may be considered appropriate in accordance with the provisions of s. 13(8) of the Act of2006.

6 (iv) A declaration that the failure of the first respondent to make an order discharging the applicant from the custody of the Central Mental Hospital, subject to such conditions as may be considered appropriate and in accordance with s. 13(8) of the Act of 2006 is ultra vires the provisions of the Act of 2006.

7 (v) Further and in the alternative, and without prejudice to the foregoing, a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 13 of the Act of 2006, insofar as it may require a person in the circumstances of the applicant to be refused a conditional discharge and thereby to be deprived of his liberty, is incompatible with the State's obligations pursuant to Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.

8 (vi) Further and in the alternative, and without prejudice to the foregoing, a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 12(8) and s. 13 of the Act of 2006, insofar as it fails to provide the applicant with a public hearing by the first named respondent, or a full, public and proper appeal from the first named respondent's decision is incompatible with the State's obligations pursuant to Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.

9 (vii) Such further or other order as this Honourable Court may consider appropriate.

10 (viii) An Order providing for the costs of and incidental to these proceedings.

11 At the hearing of these proceedings reliefs (ii), (vi) were abandoned. The main focus of the applicant's case related to reliefs (i), (iv). Relief (v) in would come into play if the applicant failed in respect of the earlier reliefs.

Factual Background

12 There is no dispute as to the facts in this case which has its origins in tragic happenings on the 6 ^th July, 2000. On that date the applicant killed his five year old daughter. At the time he was suffering from severe mental illness. He contemplated taking his own life. He was originally detained at the Central Mental Hospital on the 14 ^th July, 2000. On the 31 ^st January, 2002, a jury found him...