Re Gallagher; Gallagher v DPP

• Jurisdiction: Ireland
• Judgment Date: 12 February 1991
• Date: 12 February 1991
• Docket Number: [S.C. Nos. 386, 388 and 401 of 1990]
• Court: Supreme Court

Supreme Court

[S.C. Nos. 386, 388 and 401 of 1990]

Application of Gallagher

In the Matter of an Application by John Gallagher John Gallagher

Applicant

and

The Director of Public Prosecutions, Respondent

Cases mentioned in this report:—

The People (Attorney General) v. O'Brien [1963] I.R. 65; (1958) 98 I.L.T.R. 33.

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

Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401; 48 Cr. App. Rep. 183.

Director of Public Prosecutions v. Beard [1920] A.C. 479; 89 L.J.K.B. 437; 84 J.P. 129; 36 T.L.R. 379; 14 Cr. App. Rep. 158; 122 L.T. 625; 26 Cox C.C. 573.

Maher v. Attorney General [1973] I.R. 140; (1973) 108 I.L.T.R. 41.

Application of Ellis [1990] 2 I.R. 291.

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

The People (Director of Public Prosecutions) v. O'Mahony [1985] I.R. 517; [1986] I.L.R.M. 245.

R. v. Hatfield [1800] 27 State Tr. 1282.

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

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

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 vested by statute in Lord Lieutenant of Ireland and previously exercised by Government - Separation of powers - Whether jurisdiction to release criminal lunatic an executive or judicial power - Trial of Lunatics Act, 1883 (46 & 47 Vict., c. 38), ss. 2 and 3 - Adaptation of Enactments Act, 1922 (No. 2), s. 11, sub-s. 1.

Appeal from the Central Criminal Court.

The facts have been summarised in the headnote and appear in the judgment of McCarthy J., post.

The defendant was tried before the Central Criminal Court on a charge of murder and, on the 19th June, 1989, a special verdict of guilty but insane was returned by the jury. The court ordered that he be detained in the Central Mental Hospital until further order of the court. On the 29th January, 1990, the defendant applied to the Central Criminal Court (Johnson J.) for an order directing his release from custody; pursuant to O. 60 of the Rules of the Superior Courts, 1986, the Attorney General was made a notice party to this application, so as to argue the constitutionality of the provisions of the Trial of Lunatics Act, 1883. By order dated the 14th December, 1990, the Central Criminal Court amended its original order by directing that the defendant be detained until the pleasure of the Government was known concerning him.

By notices of motion dated the 21st December, 1990, and the 14th December, 1990, respectively, both the defendant and the Attorney General appealed to the Supreme Court against the judgment and order of the Central Criminal Court. The appeal was heard on the 22nd and 23rd January, 1991.

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 he 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 Eireann exercising in Saorstát Eireann functions the same as or corresponding to the functions exercised in respect of the area now comprised in Saorstát Eireann 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 defendant 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 "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 courts.

The defendant subsequently applied to the Central Criminal Court for an order directing his...