S. v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 11 December 2020
• Neutral Citation: [2020] IEHC 632
• Docket Number: 2020 No. 462 J.R.,[2020 No. 462 JR]
• Date: 11 December 2020

Between

S.

Applicant

and

Minister for Justice

Respondent

Director of the Central Mental Hospital

Notice Party

[2020] IEHC 632

2020 No. 462 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Appearances

Feichín McDonagh, SC and Julia Fox for the applicant instructed by Duncan Grehan & Partners

Robert Barron, SC and Michael Hourican for the respondent instructed by the Chief State Solicitor

Donal McGuinness for the notice party instructed by Byrne Wallace Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 December 2020

INTRODUCTION

1 The principal question for determination in these proceedings is as follows. Can a person who is detained in the Central Mental Hospital following a special verdict of “not guilty by reason of insanity” be characterised as a “sentenced person” for the purposes of the Transfer of Sentenced Persons Act 1995. If the answer to this question is “yes”, then such a person is eligible to be transferred to another Convention State in order to serve the balance of their “sentence” (as defined).

2 The applicant had been tried for an offence of dangerous driving causing death, and the jury returned a special verdict to the effect that the applicant was not guilty by reason of insanity. The applicant is currently detained in the Central Mental Hospital. The parties are all in agreement that it would be in the best interests of the applicant were he to be transferred to his home country of Germany. The parties are also agreed that the applicant is eligible for transfer under the terms of the Transfer of Sentenced Persons Convention itself (“ the Convention”).

3 The dispute between the parties centres on whether the Convention has been properly implemented into domestic law. Remarkably, the Minister for Justice invites this court to adopt a restrictive approach to the interpretation of the domestic legislation, with the consequence that the applicant would be rendered ineligible for transfer. The logic of the position adopted by the Minister is that, as a result of legislative amendments introduced in 2006, domestic law is no longer fully compliant with the Convention.

4 The Minister's submission that the domestic legislation should be given a restrictive interpretation is all the more surprising given that the adequacy of the Irish State's legislative regime governing the transfer of sentenced persons is to be the subject of infringement proceedings. More specifically, the European Commission has publicly announced its decision to refer Ireland to the European Court of Justice for failing to transpose Council Framework Decision 2008/909/JHA of 27 November 2008. The Framework Decision replaced the corresponding provisions of the Convention with effect from 5 December 2011 insofar as transfers between Member States of the European Union are concerned.

FACTUAL BACKGROUND

5 The applicant had been charged with an offence of dangerous driving causing death, and was tried before a judge and jury in the Circuit Criminal Court. The jury returned a special verdict, finding the applicant not guilty by reason of insanity pursuant to section 5(1) of the Criminal Law (Insanity) Act 2006. Relevantly, such a special verdict entails a finding by the jury that the accused person committed the act alleged against them but that they ought not to be held responsible for the act because they were suffering at the time from a mental disorder.

6 Thereafter, the trial judge made a finding, in accordance with section 5(2) of the Act, that the applicant was suffering from a mental disorder (as defined), and required in-patient care and treatment. (The applicant has a diagnosis of schizophrenia). The trial judge then made an order committing the applicant to a specified designated centre, namely the Central Mental Hospital.

7 As required under section 13 of the Act, the applicant has been subject to periodic reviews by the Mental Health (Criminal Law) Review Board. On each occasion, the Review Board's decision was that the applicant still fulfilled the criteria for detention, and the board ordered that his detention continue pending further review.

8 The applicant is a German national, and had moved to Ireland in 2014. The applicant is married, with one child. His wife remains supportive but has had to move back to Switzerland with their child for her employment. The applicant's mother is very elderly and resides in Germany. She is unable to travel due to her ill health.

9 The applicant wishes to be transferred to an institution in Germany so that he can be close to his family. The applicant also wishes to avail of therapies for his mental illness in his native language.

10 An appropriate secure psychiatric institution in Germany has been identified, and the clinical director of that institution has confirmed his willingness to treat the applicant. The clinical director has also confirmed that this institution would provide detention facilities, treatment and reviews comparable to those which the applicant would receive in Ireland.

11 The German Ambassador to Ireland has written to the Minister for Justice in support of the transfer application, reiterating the benefit that the transfer would have on the applicant, a German citizen; and confirming that the secure psychiatric institution in Germany would be ready to accommodate the applicant.

12 A formal application for a transfer was made to the (then) Minister for Justice on 3 December 2018. An initial response to the application was received from the Irish Prisons Service on 17 December 2018 as follows.

“I have received confirmation from the management of the Central Mental Hospital that [the applicant] is not a prisoner, and hence, the provisions of the Transfer of Sentenced Persons legislation do not apply to him. As you point out in your letter he is detained under Section 5(2) of the Criminal Law (Insanity) Act 2006. He has to date never been in the custody of the Irish Prison Service.

There is no legal provision for inter European interstate transfer of patients detained under the Criminal Law (Insanity) Act 2006.”

13 The solicitors acting for the applicant made a detailed submission in response to this letter the very next day, setting out their rationale for saying that the Transfer of Sentenced Persons Act 1995 is applicable.

14 There then ensued what can only be described as an inordinate delay on the part of the State agencies in progressing the application. Despite regular reminders, by letter and telephone, a substantive response was not received by the applicant's solicitors until 5 May 2020, that is, some eighteen months subsequent to the making of the transfer application.

15 Following a further exchange of correspondence, the reasons for the Minister's refusal to entertain the transfer application were set out as follows in a letter dated 10 June 2020. This letter is again from the Irish Prison Services.

“I refer to your recent correspondence regarding your client [Name redacted]'s unsuccessful application to transfer to Germany under the provisions of the Transfer of Sentenced Persons Act. In light of advises received, the following summary outlines the reasons why the Minister does not have the statutory power to issue a transfer warrant.

Background

Criminal Law Insanity Act 2006

Prior to the enactment of the 2006 legislation a person who pleaded insanity successfully would be found ‘ guilty but insane’ and remanded indefinitely to the Central Mental Hospital, however under the provisions of the Criminal Law (Insanity) Act, 2006 the accused person is not automatically committed to a mental hospital on foot of successfully pleading insanity. When the plea is successful, the verdict has now changed to ‘ Not guilty but insane’.

The consequences of this amendment is that a person cannot be remanded in some form of custody, rather the legislation in Section 5(2) of the 2006 Act empowers the judge to commit the person to the custody of ‘a specified designated centre’ only where the judge is satisfied that the person is suffering from a mental disorder and is in need of in-patient care and treatment. If the judge is not satisfied that the subject meets either of these criteria he cannot commit the subject to a relevant mental hospital.

Transfer of Sentence Persons Act 1995 & 1997

The 1995 Act definition of a Sentence ends with the words ‘ on account of the commission of an offence’.

It is the view of Senior Counsel that within the definition of the 1995 Act that an accused person found not ‘guilty but insane, who is committed by the judge to the Central Mental Hospital, is not subject to a ‘sentence’ for 2 reasons. Firstly, he or she has been found not guilty and therefore has not been detained ‘on account of the commission of an offence’. Secondly, the reasons and the only reasons for the committal of the person is that he or she suffers from a mental disorder and is in need of inpatient care or treatment.

Having giving ( sic) due consideration ‘to all the information and legal advice received, it was recommended that this application is refused as Senior Counsel are of the view that the Minister does not have the statutory power to issue a transfer warrant because the Transfer of Sentenced Persons legislation does not apply to a person committed to a specified designated centre under Section 5(2) of the Criminal Law (Insanity) Act, 2006 as amended by the Criminal Law (Insanity) Act 2010.”

PROCEDURAL HISTORY

16 The applicant instituted these judicial review proceedings by way of an ex parte application for leave on 20 July 2020. The judicial review proceedings came on for hearing before me on 3 December 2020. Counsel for all sides made admirably crisp and concise submissions. The parties were given liberty to file supplemental written submissions on the principles governing the interpretation of domestic legislation which gives effect to...