The Director of Public Prosecutions v FX

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Ms Justice O'Malley
• Judgment Date: 20 June 2024
• Neutral Citation: [2024] IESC 25
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2022:000061 [2022] IECA 68 Central Criminal Court bill number: CCDP0092/2011

Between

The People (At the Suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

FX

Accused/Appellant

[2024] IESC 25

Dunne J

Charleton J

O'Malley J

Woulfe J

Murray J

Supreme Court appeal number: S:AP:IE:2022:000061

Court of Appeal record number: A:APIE 2015 000065

[2022] IECA 68

Central Criminal Court bill number: CCDP0092/2011

An Chúirt Uachtarach

The Supreme Court

Criminal offences – Fitness for trial – Criminal Law (Insanity) Act 2006 – Applicant seeking the reversal of the decision that he remain in the court system – Whether the appellant should be retained within the criminal justice system

Facts: The appellant was a voluntary patient in a psychiatric hospital when he stabbed a fellow patient. The appellant was charged with the offence of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997. The victim died some eight months after being stabbed. The appellant was charged with murder. The Central Criminal Court found that the appellant was unfit for trial. An application was brought before the Central Criminal Court for the holding of a “trial of the facts” pursuant to s. 4(8) of the Criminal Law (Insanity) Act 2006. The judge presiding over the list directed that it should be dealt with by a judge sitting alone, rather than a jury. The respondent, the Director of Public Prosecutions, served a book of evidence, and also lodged an indictment. There were two counts thereon – murder, and the offence of causing serious harm. The inquiry was held before the Central Criminal Court. The appellant appealed to the Court of Appeal against the order of the Central Criminal Court. The Court of Appeal dismissed the appeal. The issue before the Supreme Court was the effect of the finding by the court of trial that there was a reasonable doubt as to the charge of murder. The appellant argued that he was not sent forward on any other charge; that the procedure does not allow for the preferment of an indictment and, still less, for the addition of counts to the indictment; that the s. 4 charge was not lawfully before the court and the alternative verdicts option was not available.

Held by the Court that while the appellant was correct on each of those matters, they did not render what had been done in the case unlawful. The Court noted that since the appellant had been found unfit, the court exercised its undoubted jurisdiction to detain him in a suitable treatment facility; he then had the option, which he exercised, of seeking a hearing under s. 4(8) of the 2006 Act. The Court held that the engagement with that procedure by the trial court was for the purpose of ensuring that the appellant was not retained within the criminal justice system if, in fact, the prosecution could not prove a case against him. The Court noted that it was found that the prosecution could not prove that the appellant’s actions caused death, and therefore he was discharged in respect of the murder charge. However, it was in the Court’s view simply not possible that such a finding could have the effect of closing off all other possible outcomes of a trial. The Court held that it was certainly the case that the act of the appellant (and there was only one act in question) caused an event forbidden by law – the infliction of a serious injury. The Court held that, on the facts of the case, it was entirely appropriate for the trial judge to take account of the fact that an acquittal on the murder charge manifestly would not dispose of all the possible verdicts that might be reached in a trial, and to find that it would not be correct to discharge the appellant completely.

The Court dismissed the appeal.

Appeal dismissed.

Judgment ofMr Justice Peter Charletondelivered on Thursday 20 June 2024

1 The principal judgment is that of O'Malley J. The result she proposes, that the appeal be dismissed, is undoubtedly correct. The route to the order proposed may be reached by another route.

2 As O'Malley J states, the basic facts are that FX was confined, voluntarily, to a mental treatment centre when he stabbed the victim, a fellow patient, in 2010, resulting in paralysis. Several months later, the victim died. What had initially been a charge of causing serious harm against the accused was processed by him being sent forward to the Circuit Court for a decision as to whether was fit to plead to the change. Then, the victim died and a nolle prosequi was entered on that charge and a murder charge was filed, which had to be with ultimate trial in the High Court. He was sent forward to the Central Criminal Court for the trial of an issue of fitness to plead where he was found to be unfit to be tried. An application to be discharged was then made and for the purpose of that application the prosecution served a book of evidence and a statement in the form of an indictment with two charges, namely murder and causing serious harm, despite there being no return for trial. Causation was not found on this trial of an issue and so the murder charge ended, leaving the causing serious harm charge. Since then, his litigation, namely habeas corpus and appeals against the trial of an issue order, have all been based on the argument that the causing serious harm charge was not properly before the Central Criminal Court, because he was not sent forward on that charge. O'Malley J sets out in full the permutations of the issue that thereby arose. The technicality of that process does not affect this issue.

3 Essentially, the prosecution argument was that while there might be a doubt as to what killed the victim, the act of the accused was of taking a knife and stabbing him; whether that action had been reduced to one of mere historic background (thus enabling a finding of reasonable doubt as to proof of causation) or not, the factual reality of the serious assault remained.

4 By a later determination, that charge of assault causing serious harm was enabled by a judge sitting alone to remain against the accused. O'Malley J proposes as the order on this appeal that it remain and that if, or when, the accused becomes fit to be tried, the criminal process will resume.

5 Prior to the Criminal Law (Insanity) Act 2006 as amended by the Criminal Law (Insanity) Act 2010, statutory definitions were absent as to insanity and as to the test as to when someone was fit to plead to a charge. Insanity as a concept had developed at common law and had come to include irresistible impulse as well as not knowing the nature and quality of the act that the prosecution was required to prove or that act was wrong. Diminished responsibility had been developed from the common law in Scotland, but not here or in England & Wales, and was introduced by statute in that jurisdiction before the reforms of the 2006 Act introduced that defence here. Fitness to plead was never necessarily tied up with an accused pleading an insanity defence, or diminished responsibility, since a person's mental condition could fluctuate. An accused might have been sane at the time of an offence but have developed a serious mental illness since and a person so mentally unwell as to be unable to plead to a charge might also have had a condition at the time of the act alleged against him or her whereby an insanity or diminished responsibility defence could be proven by that accused as a probability.

6 Hence, fitness to plead has always been different, in terms of test and in terms of consequence, from a defence to a charge of mental infirmity (insanity or diminished responsibility). The early case of R v Dwerryhouse (1847) 2 Cox 446 pointed up the difficulty in dealing with a person found unfit to plead. That was the legislative context for the power granted to the Secretary of State to remove a person certified to be insane as of arraignment for trial and order their detention in a hospital until their remittal to prison or discharge: Criminal Lunatics Act 1884 s 64. That legislation required a jury to make a finding as to whether “a defendant who stands indicted … be insane or not”. Those who made no answer on the reading of an indictment to them were said, prior to that time, to either be mute of malice or by the visitation of God. In R v Pritchard(1836) 7 C&P 303, the test for being fit to plead was arrived at by Alderson B on the basis of this direction to the jury:

There are three points to be enquired into:—first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence — to know that he might challenge any of you [the jury] to whom he may object — and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.

7 Those found insane on being indicted were held, according to the approach of the time, “at Her Majesty's pleasure”; in other words indefinitely. People might recover and be tried but might relapse on being again indicted or might never recover sufficiently and be held for their natural lives. On some occasions, not even evidence was required for this. Rather, the jury could form their own opinion, which in notorious cases was not necessarily a fair way to proceed; R v Turton (1854) 6 Cox 385, a charge of using seditious language against Queen Victoria. The test for fitness to plead is now mirrored, with minor changes, in s 4(2) of the 2006 Act. The inappropriate language of a former era is also removed.

8 But the real issue was with the warehousing of accused persons who may, or may not, have been insane when the crime was committed or who may or may not have been considered guilty by the prosecuting authorities but were in fact unconnected with any ostensible crime. It is necessary to so describe an incident where an insane person does...