L. v Kennedy

• Jurisdiction: Ireland
• Judgment Date: 05 May 2010
• Docket Number: [2009 No. 2081 SS]
• Date: 05 May 2010
• Court: High Court

[2010] IEHC 195,

High Court

[2009 No. 2081 SS]

L. v. Kennedy

In the matter of an inquiry pursuant to Article 40.4.2ø of the Constitution of Ireland 1937

A.L.

Applicant

and

Harry Kennedy, Clinical Director of the Central Mental Hospital, Respondent and The Mental Health (Criminal Law) Review Board, Notice Party

Cases mentioned in this report:-

J.B. v. Mental Health (Criminal Law) Review Board[2008] IEHC 303, [2011] 2 I.R. 15.

Johnson v. United Kingdom (App. No. 22520/93) (1999) 27 E.H.R.R. 296.

Kolanis v. United Kingdom (App. No. 517/02) (2005) 42 E.H.R.R. 12.

Re Worldport Ireland Ltd. (in liquidation) [2005] IEHC 189, (Unreported, High Court, Clarke J., 16th June, 2005).

Winterwerp v. The Netherlands (App. No. 6301/73) (1979/1980) 2 E.H.R.R. 387.

Criminal law - Detention - Lawfulness - Mental disorder - Mental Health (Criminal Law) Review Board - Powers of review board - Conditional discharge from detention - Enforceability of conditions on release - Temporary release - Public interest - Discretion of review board - Whether detention permissible in circumstances where person no longer suffering from mental disorder - Whether right to release absolute where person no longer suffering from mental disorder - Whether lack of enforceability of conditions on discharge justified continued detention - Whether consideration of public interest conferred power of detention on review board - Mental Health Act 2001 (No. 25), s. 3 - Criminal Law (Insanity) Act 2006 (No. 11) ss. 1, 5, 11, 13 and 20(2) - Constitution of Ireland 1937, Article 40.4.2ø - European Convention on Human Rights 1950, article 5(1).

Mental health - Detention - Lawfulness - Right to review by review board - Meaning of "mental disorder" - Winterwerp principles - Requirement of objective grounds for detention - Margin of appreciation for decision of review board.

Inquiry pursuant to Article 40.4.2§ of the Constitution

The facts have been summarised in the headnote and are more fully set out in the judgment of Peart J., infra.

On the 14th December, 2009, an application was made on behalf of the applicant for an inquiry into the legality of the applicant's detention pursuant to Article 40.4.2§ of the Constitution. The applicant was produced before the court on the 15th December, 2009, and the grounds for his detention were certified in writing.

The inquiry was adjourned by consent and heard by the High Court (Peart J.) on the 11th January, 2010.

On the 12th April, 2006, the Trial of Lunatics Act 1883 was repealed and replaced by the Criminal Law (Insanity) Act 2006. The Act of 2006 provides at s. 20(2) that it applied to a person found "guilty but insane" under s. 2 of the Trial of Lunatics Act 1883, as if he or she were a person detained pursuant to s. 5 of the Act of 2006 and that such a person is entitled to the benefit of the provisions of that Act. The Criminal Law (Insanity) Act 2006 provides a number of safeguards for a detained person, including regular reviews by the Mental Health (Criminal Law) Review Board (the "Review Board"). Section 13(8) provides that in its review, the Review Board considers evidence relating to the mental condition of the patient and decides whether the person is still in need of in-patient treatment and makes such order as it considers appropriate whether for further detention, care or treatment or for his or her discharge, whether conditional or unconditional.

Section 11 of the Act of 2006 provides, inter alia, as follows:-

"The Review Board shall be independent in the exercise of its functions under this Act and shall have regard to the welfare and safety of the person whose detention it reviews under this Act and to the public interest."

The applicant was found "guilty but insane" by a jury at the Central Criminal Court in April, 2000 for the murder of his mother. He was committed by the trial judge to the Central Mental Hospital pursuant to s. 2 of the Act of 1883 and has remained and been treated there since.

While on a period of temporary release in September, 2009, the applicant attempted to breach one of the conditions of his release, resulting in the revocation of his temporary release and his return to the Central Mental Hospital. At a meeting of the Review Board in November, 2009 the medical consensus was that while the applicant suffered from certain mental conditions, he was no longer suffering from a mental disorder such that his continued detention for the purposes of in-patient care or treatment was longer necessary. He had not taken any medication for two years, other than for his physical condition and was considered suitable for discharge subject to certain conditions related to his supervision. However, the Review Board did not have confidence that he would respect any conditions they might impose on his release and, having taken the view that the Act of 2006 did not confer any power to recall a person to detention or in any way to enforce conditions attached to a conditional discharge, they concluded that in the public interest, pursuant to s. 11 of the Act of 2006, they could not grant his conditional discharge. The applicant challenged the legality of his detention submitting that, since medical opinion was that he no longer required in-patient treatment and care, there was no lawful basis for his continued detention.

Held by the High Court (Peart J.), in upholding the legality of the applicant's detention, 1, that there was no absolute right to discharge where a person who was sentenced to detention pursuant to the Criminal Law (Insanity) Act 2006 then ceased to suffer from a mental disorder within the meaning of the Mental Health Act 2001.

• J.B. v. Mental Health (Criminal Law) Review Board[2008] IEHC 303, [2011] 2 I.R. 15 followed.

2. That the order of committal by a trial judge to a designated centre under the Criminal Law (Insanity) Act 2006 endured only until an order was made by the Review Board following the first review. Thereafter, it was the Review Board which determined whether the detention should continue or whether discharge was appropriate and under what conditions.

• J.B. v. Mental Health (Criminal Law) Review Board[2008] IEHC 303, [2011] 2 I.R. 15 distinguished.

3. That the fact that the Criminal Law (Insanity) Act 2006 provided no mechanism for enforcement of conditions imposed on discharge did not mean that the Review Board could, in all cases where it would otherwise be considered appropriate, decline to impose conditional discharge or that it could confine its purview to either further detention or unconditional discharge. The provision at s. 11(2) whereby the Review Board should have regard, inter alia, to the public interest in making any decision as to the release of a person, should guide the decision of Review Board but did not confer of itself any power to detain.

4. That s. 13(8) of the Criminal Law (Insanity) Act 2006 afforded the Review Board a wide discretion in determining what order to make in relation to whether to discharge, conditionally or unconditionally, or to detain. So long as the Review Board acted rationally, judicially and in accordance with principles of constitutional justice, it was entitled to make whatever decision it saw fit.

5. That a margin of appreciation was permitted by the case law of the European Convention on Human Rights to a body such as the Review Board, provided that adequate safeguards existed to guarantee that a person was not made the subject of an arbitrary detention and had an adequate form of redress by way of review or application for release.

Kolanis v. United Kingdom (App. No. 517/02) (2005) 42 E.H.R.R. 12 followed.

6. That the fact that a person continued to be detained because of a reluctance to release in circumstances where there was no means of enforcing conditions, or possibility of recalling a person conditionally discharged, did not offend article 5 of the European Convention on Human Rights 1950.

• J.B. v. Mental Health (Criminal Law) Review Board[2008] IEHC 303, [2011] 2 I.R. 15 and Kolanis v. United Kingdom (App. No. 517/02) (2005) 42 E.H.R.R. 12 followed.

Obiter dictum: If the present application had been brought by way of judicial review, the applicant might have sought other remedies, such an order quashing the decision of the Review Board or an order directing a further meeting in which to consider the applicant's release at which the applicant could make submissions. But in the context of the current application, the only question to be determined was the lawfulness of the applicant's detention.

Cur. adv. vult.

Peart J. 5th May, 2010

[1] Following his arrest in the immediate aftermath of his mother's death the applicant was remanded from the District Court to Mountjoy Prison in December, 1998, but some days later was transferred to the Central Mental Hospital where he remained as a patient until his trial and conviction. The clinical diagnosis at that time was that he was suffering from a drug induced psychosis against a background of bi-polar affective disorder.

[2] On the 7th April, 2000, the applicant was found "guilty but insane", by a jury at the Central Criminal Court, of the murder of his mother in 1998, following which, under the provisions of s. 2 of the Trial of Lunatics Act 1883, then in force, he was committed by the trial judge to the Central Mental Hospital where he has been treated ever since.

[3] On the 12th April, 2006, the Act of 1883 was repealed and replaced by the Criminal Law (Insanity) Act 2006 which, inter alia, provides by s. 20(2) thereof that the Act of 2006 "shall apply to a person found guilty but insane and detained under section 2 of the Trial of Lunatics Act 1883, as if he or she were a person detained pursuant to an order of the court made under section 5 and, accordingly, such person shall be entitled to the benefit of the provisions of this Act".

[4] The applicant is therefore a person who is...