The Role of the Jury in the Insanity Defence: People (DPP) v Alchimionek [2019] IECA 49

• Date: 01 January 2020

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e Role of the Jury in the Insanity Defence:

People (DPP) v Alchimionek [2019] IECA 49

LUKE NOONAN*

Introduction

e modern insanity defence, developed during the nineteenth century, is

the result of a balance the law attempts to strike between two objectives: not

subjecting a mentally ill oender who lacks moral fault to criminal punishment,

and the need to protect the public from danger.1 e special verdict of insanity

permits a committal order to be made which detains the defendant in the Central

Mental Hospital for care and treatment.2 However, this special verdict can only be

returned by a jury in the Circuit and Central Criminal Courts.3 In most insanity

trials, the issue is not contested by the prosecution, but they are unable to accept

the plea.4 Similarly, judges do not have the power to withdraw the case from the

jury and order a directed special verdict.5 is creates a risk that a jury may refuse

to accept the defence even when the psychiatric evidence is uncontested.6 If a jury

* LL.B. (Hons.), LL.M., Ph.D. Candidate. Assistant Lecturer at the School of Law, University

College Cork. Doctoral Research is funded under the Irish Research Council’s Government of

Ireland Postgraduate Scholarship. I would like to thank Dr Catherine O’Sullivan and Dr Darius

Whelan for comments on an earlier dra. Errors and omissions are my own.

1 For more on the insanity defence in Ireland, see: Roderick O’Hanlon, ‘Not Guilty Because of

Insanity’ (1968) 3 Irish Jurist 61; Finbarr McAuley, Insanity, Psychiatry and Criminal Responsibility

(Round Hall 1993); Simon Mills, ‘Criminal Law (Insanity) Bill 2002: Putting the sanity back into

insanity?’ (2003) 8 Bar Review 101; Tony McGillicuddy, ‘e Criminal Law (Insanity) Act 2006’

(2006) 11 Bar Review 83; Darius Whelan, Mental Health Law and Practice: Civil and Criminal

Aspects (Round Hall 2009) ch 15.

2 Criminal Law (Insanity) Act 2006, s 5 (‘2006 Act’).

3 It is returned by a judge in the District and Special Criminal Courts.

4 In theory, prosecutorial discretion would permit them to decline to initiate the proceedings. When

reviewing homicide cases between 1972 and 1996, Dooley found 73 cases where the homicide was

committed by a person who was suering from a ‘psychotic illness or other mental disorder’. No

charge was brought against the identied perpetrator in 22 of these cases. Only 8 committed suicide

aer the crime, so it appears that some level of discretion was being used; Enda Dooley, Homicide

in Ireland 1972–1991 (Department of Justice 1995) 17–18; Enda Dooley, Homicide in Ireland

1992–1996 (Department of Justice 2001) 18.

5 R v Maidstone Crown Court [2000] QB 719, 729 (Mitchell J). Although rare, this did happen in

trial courts prior to the 2006 Act, see People (DPP) v Smith (Central Criminal Court, July 1988)

(Costello J).

6 Whilst is rare that an insanity plea is rejected where there is no conicting psychiatric evidence,

it has occurred in the Circuit Court on at least one other occasion in the past 15 years. In 2005, a

jury at Kilkenny Circuit Criminal Court rejected the insanity defence for a defendant charged with

assault causing serious harm; Conor Gallagher, ‘Legal Opinion: e mentally ill should be spared

the stresses of the courtroom’ e Irish Times (Dublin, 20 July 2015) ps://www.irishtimes.