Kirwan v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Lardner
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-HC 3851
• Court: High Court
• Docket Number: 235/1992,[1992 No. 235 J.R.]
• Date: 01 January 1994

1993 WJSC-HC 3851

THE HIGH COURT

235/1992

KIRWAN v. MIN JUSTICE

JUDICIAL REVIEW

BETWEEN

THOMAS KIRWAN

APPLICANT

AND

THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

DPP V GALLAGHER 1991 ILRM 339

CONSTITUTION ART 38(1)

CONSTITUTION ART 40

TRIAL OF LUNATICS ACT 1883 S2(2)

HEALY, STATE V DONOHOE 1976 IR 325

O, STATE V DALY 1977 IR 315

OFFENCES AGAINST THE PERSON ACT 1861

MENTAL TREATMENT ACT 1945 S207

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Legal aid - Applicant - Entitlement - Trial - Murder - Jury - Verdict - Guilty but insane - Applicant sentenced to detention during pleasure of Government - Alleged recovery of applicant - Applicant sought release by Government - Procedure - Advisory committee to make recommendation - Legal aid sought by applicant for purposes of his application — (1992/235 JR - Lardner J. - 29/7/93) - [1994] 1 ILRM 444

|K. v. Minister for Justice|

LEGAL AID

Applicant

Entitlement - Trial - Murder - Jury - Verdict - Guilty but insane - Applicant sentenced to detention during pleasure of Government - Alleged recovery of applicant - Applicant sought release by Government - Procedure - Advisory committee to make recommendation - Legal aid sought by applicant for purposes of his application - Constitutional requirement of fair procedures - Constitution of Ire land, 1937, Article 40 - (1992/235 JR - Lardner J. - 29/7/93)

|K. v. Minister for Justice|

1 Judgment of Mr. Justice Lardner delivered the 29th day of July, 1993.

2 The Applicant seeks a Declaration that the first named Respondent has acted in breach of natural and constitutional justice by his failure to provide the Applicant with free legal aid for the purposes of applying for his release from the Central Mental Hospital, Dundrum, County Dublin, and certain ancillary relief. The application is made in the following circumstances. The Applicant was born on the 19th of May, 1961. On or about the 25th of June 1984 he was found guilty but insane in relation to a charge of murder for which he had been prosecuted before the Central Criminal Court - Mr. Justice Lynch and a jury. The Order of the 25th of June, 1984 recites that the Applicant having been arraigned and having pleaded not guilty to murder was given in charge for trial to a jury duly empanelled according to law and the Court and the jury having heard the evidence tendered and the submissions made on behalf of the respective parties and the jury having heard the charges of the presiding Judge found the accused guilty but insane. The Court then ordered that the Applicant Thomas Kirwan be detained in the Central Mental Hospital, Dundrum until further order of the Central Criminal Court. The Applicant has remained in the asylum until the present. His solicitors obtained a report in 1991 dated the 28th of November 1991 from Dr. Art O'Connor Consultant Forensic Psychiatrist in the Central Mental Hospital which states that he has formed a view of the Applicant's mental health that the Applicant might be a suitable candidate for release from detention under close supervision and subject to certain conditions relating to supervision and alcohol treatment and it is said that Dr. O'Connor also stated that since 1984 there had been no evidence that the Applicant had suffered from mental illness such as schizophrenia or serious depression. Having learned of this report the Applicant instructed his solicitor to apply to the first named Respondent for a review of the current detention of the Applicant which in the light of the recent judgment in the Supreme Court in the case of D.P.P. -v- Gallagher 1990 I.L.R.M. is a matter which is subject to the will and pleasure of the Government acting through the first named Respondent. The Applicant's solicitors wrote on the 6th of February 1992 to the Secretary of the Department of Justice saying they wished to apply for Mr. Kirwan's release. In the letter they said that they understood that an Advisory Committee had been set up by the Department of Justice and that decisions were taken on the basis of this Committee's recommendations and they asked what procedures were in place for making application to the Committee. To this letter the Department of Justice replied on the 22nd of May, 1992 stating that the application had not yet been referred to the Advisory Committee and that to enable this to be done the Department required a Statement in detail from the Applicant's solicitors of the grounds on which they were applying for their client's release. The letter terminated by saying there was no provision in existence for legal assistance in cases such as this. In a subsequent letter of the 25th of February, 1992 the Department of Justice communicated the terms of reference of the Advisory Committee which had been set up by the Minister in these words:-

"To advise the Minister for Justice as to whether or not the Applicant is suffering from any mental disorder warranting his continued detention in the public and private interests including the question of whether he would be a potential danger to any member of the public if released having regard to any relevant information, material or submissions as may be tendered to or coming to the notice of the Committee, including any information material or submissions tendered by or on behalf of the Applicant."

3 This letter further indicated that application for release should be made to the Government or the Minister for Justice and consideration of an application by the Committee would arise only when that application had been referred to the Committee by the Minister. The letter ended by requesting the Applicant's solicitors to state in detail the grounds upon which they applied for their client's release and inquired whether there was any material evidence which they wished to submit in support of the application. Subsequently by a letter of the 1st of April, 1992 the Applicant's solicitors asked the Department to confirm their client's entitlement under the Attorney General's Scheme to have legal representation. The substance of the correspondence, I think, concludes by the Department of Justice stating to the Applicant's solicitor...