Re Ellis; Ellis v DPP

• Jurisdiction: Ireland
• Judgment Date: 01 January 1991
• Date: 01 January 1991
• Docket Number: [1990 No. 162 S.S.]
• Court: Supreme Court

Central Criminal Court

Supreme Court

[1990 No. 162 S.S.]

Application of Ellis

In the Matter of an Application by Patrick Ellis Patrick Ellis

Applicant

and

The Director of Public Prosecutions, Respondent

Cases mentioned in this report:—

In re ClarkeIRDLTR [1950] I.R. 235; (1949) 85 I.L.T.R. 119.

Doyle v. Wicklow County CouncilIR [1974] I.R. 55.

Felstead v. R.ELRUNKUNK [1914] A.C. 534; 111 L.T. 218; 30 T.L.R. 469; 24 Cox C.C. 243; 10 Cr. App. Rep. 129.

Norris v. Attorney GeneralIR [1984] I.R. 36.

Application of NeilanIR [1990] 2 I.R. 267.

The People (Director of Public Prosecutions) v. O'MahonyDLRM [1986] I.L.R.M. 244.

R. v. IrelandELRUNK [1910] 1 K.B. 654; 26 T.L.R. 267.

R. v. MachardyELRUNK [1911] 2 K.B. 144; 28 T.L.R. 2.

R. v. TaylorELRUNK [1915] 2 K.B. 709; 31 T.L.R. 449; 11 Cr. App. Rep. 198.

The State (C.) v. Minister for JusticeIRDLTR [1967] I.R. 106; (1967) 102 I.L.T.R. 177.

The State (H.) v. DalyIR [1977] I.R. 90.

The State (Murtagh) v. Governor of Central Mental Hospital (Unreported, Supreme Court, 12th November, 1968).

The State (O) v. O'BrienIR [1973] I.R. 50.

X. v. United KingdomHRC (1981) 4 E.H.R.R. 188.

Criminal law - Insanity - Defence - Defendant found guilty but insane - Order that defendant be detained in mental hospital "until further order of court" - Power to direct release of criminal lunatics vested by statute in Lord Lieutenant of Ireland and previously exercised by Government - Separation of powers - Whether jurisdiction to release criminal lunatics an executive or judicial power - Provisional Government (Transfer of Functions) Order, 1922 - Trial of Lunatics Act, 1883 (46 & 47 Vict., c. 38), ss. 2 and 3 - Adaptation of Enactments Act, 1922 (No. 2), s. 11.

Application for Release of Criminal Lunatic.

The facts have been summarised in the headnote and are set out in the judgment of O'Hanlon J., post.

The applicant was tried before the Central Criminal Court (O'Hanlon J. sitting with a jury) in May and June, 1987, on a charge of murder, and was found guilty but insane. On the 6th June, 1987, the court ordered that he be detained in the Central Mental Hospital, Dundrum, and in such other institutions suitable for the detention of insane persons to which he might from time to time be removed from there, until further order of the court.

By notice of motion dated the 1st June, 1989, the applicant applied to the court for an order discharging him from the custody of the Central Mental Hospital. An order was made, on the 28th July, 1989, discharging the applicant into the care of his family for a probationary period of six months. When the application was listed before the court again, on the 2nd February, 1990, the defendant applied for an order of final discharge from custody.

The applicant's appeal, by notice of motion dated the 27th February, 1990, was heard by the Supreme Court on the 24th and 25th May, 1990. By order of the Court, the Attorney General was made a notice party to the appeal.

Section 2 of the Trial of Lunatics Act, 1883, as modified in its application to Ireland by s. 3, provides as follows:—

"(1) Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that be was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid at the time when he did the act or made the omission.

(2) Where such special verdict is found, the court shall order the accused to be kept in custody as a criminal lunatic, in such place and in such manner as the court shall direct till the pleasure of [the Lord Lieutenant] shall be known; and it shall be lawful for [the Lord Lieutenant] thereupon, and from time to time, to give such order for the safe custody of the said person during pleasure, in such place and in such manner as to [the Lord Lieutenant] may seem fit."

Section 11, sub-s. 1 of the Adaptation of Enactments Act, 1922, provides:—

"Subject and without prejudice to the specific adaptations made by this Act or by any order made under the authority of this Act, every mention or reference contained in any British statute of or to any Minister, official, department or authority of the Government of the late United Kingdom or of the late British Government in Ireland, including the Lord Lieutenant exercising executive functions, shall in respect of the doing or not doing of any act, matter or thing, after the 6th day of December, 1922, be construed and take effect as a mention of or reference to the Minister, official, department or authority in Saorstát Éireann éireann exercising in Saorstát Éireann éireann functions the same as or corresponding to the functions exercised in respect of the area now comprised in Saorstát Éireann éireann by such Minister, official, department or authority of the Government of the late United Kingdom or the late British Government in Ireland prior to the 6th day of December, 1921 . . ."

The Provisional Government (Transfer of Functions) Order, 1922, provided, inter alia, that powers and functions previously exercised by any Minister or official relating to law and justice should henceforth be exercised by the Minister for Home Affairs of the Provisional Government.

The applicant was tried before the Central Criminal Court on a charge of murder and was found to be guilty but insane. The court ordered that he be detained in the Central Mental Hospital, and in such other institutions suitable for the detention of insane persons to which he might from time to time be removed from there, "until further order of this court". This form of order had been adopted by the Central Criminal Court in recent years in the belief that the powers vested in the Lord Lieutenant by the Act of 1883 were judicial rather than executive in nature and ought properly to be exercised by the court. No challenge as to the form of the order was made by either the applicant or the Director of Public Prosecutions.

Two years later, an application was made to the trial judge for the release of the applicant, grounded upon evidence that he was not suffering from any disease of the mind which would justify his continued detention as a criminal lunatic. Two medical specialists practising in the Central Mental Hospital gave evidence that the applicant had been sane since the first time that he came into their care. An order was made for the release of the applicant for a probationary period of six months, following which a further report was furnished to the court, confirming that the applicant was sane. The Director of Public Prosecutions offered no objection to the applicant's application for release from custody.

Held by the Central Criminal Court (O'Hanlon J.), in ordering that the applicant be detained in custody as a criminal lunatic until the pleasure of the Government of Ireland should be known, 1, that, since a verdict of guilty but insane amounted in law to an acquittal and an order for the detention in custody of a criminal lunatic was not an order imposing a criminal sentence, the power conferred by s. 2 of the Act of 1883 to determine the duration of the period of such detention was not an exercise of the judicial power of the State.

The State (C) v. Minister for JusticeIR [1967] I.R. 106 and The State (O.) v. O'BrienIR[1973] I.R. 50distinguished.

2. That the power to detain in custody a person acquitted of a criminal charge, on grounds of insanity, did not fall under the rubric of "law and justice", within the meaning of the Provisional Government (Transfer of Functions) Order, 1922, and that such power had not been transferred to the Minister for Justice by s. 11 of the Act of 1922.

3. That the power conferred by the Act of 1883 was executive and not merely administrative in nature and was now vested in the Government by virtue of the Constitution.

4. That the order that the applicant be detained in custody "until further order of the court"had been made in error, and that the court had no jurisdiction to make any order in relation to the applicant's application for release from custody.

Per curiam: That the Oireachtas should examine, as a matter of urgent necessity, the scope and nature of the plea of insanity in criminal trials.

The applicant appealed to the Supreme Court against the judgment and order of the Central Criminal Court. The Court ordered that the Attorney General be joined as a notice party to the proceedings, to argue the question whether the provisions of the Act of 1883 were consistent with the Constitution.

Held by the Supreme Court (Finlay C.J., Griffin, Hederman, McCarthy and O'Flaherty JJ.), in allowing the appeal and setting...