Criminal Law (Insanity) Act 2006

1. Interpretation.

1.— In this Act, save where the context otherwise requires—

“act” includes omission and references to committing an act include references to making an omission;

“the Act of 2001” means the Mental Health Act 2001;

“approved medical officer” means a consultant psychiatrist (within the meaning of the Mental Health Act 2001);

“clinical director” has the meaning assigned to it by the Mental Health Act 2001, and, where an approved medical officer is duly authorised by a clinical director to perform his or her functions under this Act, the officer shall, in relation to those functions, be deemed, for the purposes of this Act, to be a clinical director;

“court” means any court exercising criminal jurisdiction and includes court martial;

“designated centre” shall be construed in accordance with section 3;

“establishment day” means the day appointed under section 10 to be the establishment day;

“intoxication” means being under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances;

“legal representative” means a practising barrister or a practising solicitor;

“mental disorder” includes mental illness, mental disability, dementia or any disease of the mind but does not include intoxication;

“Minister” means the Minister for Justice, Equality and Law Reform;

“patient”, in sections12,F1[13, 13A, 13B] and 14, means a person detained in a designated centre pursuant to this Act;

“prison” means a place of custody administered by the Minister;

“prisoner” means a person who is in prison on foot of a sentence of imprisonment, on committal awaiting trial, on remand or otherwise;

“Review Board” means the Mental Health (Criminal Law) Review Board established under section 11;

“special court” means a special court established under Article 38.3.1° of the Constitution.

2. Orders.

2.— Every order made by the Minister or by the Minister for Health and Children under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made.

3. Designated centres.

3.— (1) The Central Mental Hospital is hereby designated as a centre (in this Act referred to as a “designated centre”) for the reception, detention and care or treatment of persons or classes of persons committed or transferred thereto under the provisions of this Act.

(2) The Minister for Health and Children by order may after consultation with the Mental Health Commission established under section 32 of the Act of 2001, designate a psychiatric centre as a centre (in this Act referred to as a “designated centre”) for the reception, detention and, where appropriate, care or treatment of persons or classes of persons committed or transferred thereto under the provisions of this Act.

F2[(2A) Notwithstanding the generality ofsubsection (2), the Minister for Health and Children by order may after consultation with the Mental Health Commission, designate a psychiatric centre as a designated centre for the reception and, where appropriate, detention, examination and, where appropriate, care and treatment of persons or classes of persons committed or directed thereto by the District Court undersection 4(6)(a)for examination.]

(3) Part 4 of the Act of 2001 shall apply to any person who is detained in a designated centre under this Act.

(4) In this section, “psychiatric centre” means a hospital or in-patient facility in which care or treatment is provided for persons suffering from a mental disorder within the meaning of the Act of 2001.

4. Fitness to be tried.

4.— (1) Where in the course of criminal proceedings against an accused person the question arises, at the instance of the defence, the prosecution or the court, as to whether or not the person is fit to be tried the following provisions shall have effect.

(2) An accused person shall be deemed unfit to be tried if he or she is unable by reason of mental disorder to understand the nature or course of the proceedings so as to—

(a) plead to the charge,

(b) instruct a legal representative,

(c) in the case of an indictable offence which may be tried summarily, elect for a trial by jury,

(d) make a proper defence,

(e) in the case of a trial by jury, challenge a juror to whom he or she might wish to object, or

(f) understand the evidence.

(3) (a) Where an accused person is before the District Court (in this section referred to as “the Court”) charged with a summary offence, or with an indictable offence which is being or is to be tried summarily, any question as to whether or not the accused is fit to be tried shall be determined by the Court.

F3[(aa) In a case to whichparagraph (a)relates, the Court may request evidence of an approved medical officer to be adduced before it in respect of the accused person for the purposes of—

(i) determining whether to adjourn the proceedings until further order to facilitate the accused person in accessing any care or treatment necessary for the welfare of the person,

(ii) making a determination as to whether or not the accused person is fit to be tried, or

(iii) exercising a power referred to insubsection (6)(a).]

(b) Subject to subsections (7) and (8), in a case to which paragraph (a) relates, the Court determines that an accused person is unfit to be tried, that Court shall adjourn the proceedings until further order, and may—

(i) if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant to F4[subsection (6)(b)] and any other evidence that may be adduced before it that the accused person is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, commit him or her to a specified designated centre until an order is made under section 13 F3[or13A], or

(ii) if it is satisfied, having considered the evidence of an approved medical officer adduced pursuant to F4[subsection (6)(b)] and any other evidence that may be adduced before it that the accused person is suffering from a mental disorder or from a mental disorder (within the meaning of the Act of 2001) and is in need of out-patient care or treatment in a designated centre, make such order as it thinks proper in relation to the accused person for out-patient treatment in a designated centre.

(c) Where in a case to which paragraph (a) relates, the Court determines that the accused person is fit to be tried the proceedings shall continue.

(4) (a) Where an accused person is before the Court charged with an offence other than an offence to which paragraph (a) of subsection (3) applies, any question as to whether that person is fit to be tried shall be determined by the court of trial to which the person would have been sent forward if he or she were fit to be tried and the Court shall send the person forward to that court for the purpose of determining that issue.

(b) Where an accused person is sent forward to the court of trial under paragraph (a), the question of whether the person is fit to be tried shall be determined by the judge concerned sitting alone.

(c) If the determination under paragraph (b) is that the accused person is fit to be tried, the provisions of the Criminal Procedure Act 1967, shall apply as if an order returning the person for trial had been made by the Court under section 4A of that Act (inserted by section 9 of the Criminal Justice Act 1999) on the date the determination was made but, in any case where section 13 of that Act applies, the person shall be returned for trial.

(d) If the determination under paragraph (b) is that the person is unfit to be tried the provisions of subsection (5) shall apply.

(e) Where the court subsequently determines that the person is fit to be tried the provisions of the Criminal Procedure Act 1967, shall apply as if an order returning the person for trial had been made by the Court on the date the determination was made.

(5) (a) Where an accused person is before a court other than the Court charged with an offence and the question arises as to whether that person is fit to be tried the provisions of this subsection shall apply.

(b) The question of whether the accused person is fit to be tried shall be determined by the judge concerned sitting alone.

F3[(bb) In a case to whichparagraph (a)relates, the court may request evidence of an approved medical officer to be adduced before it in respect of the accused person for the purposes of—

(i) determining whether to adjourn the proceedings until further order to facilitate the accused person in accessing any care or treatment necessary for the welfare of the person,

(ii) making a determination as to whether or not the accused person is fit to be tried, or

(iii) exercising a power referred to insubsection (6)(a).]

(c) Subject to subsections (7) and (8), if the judge determines that the accused person is unfit to be tried, he or she shall adjourn the proceedings until further order, and may—

(i) if he or she is satisfied, having considered the evidence of an approved medical officer adduced pursuant to F4[subsection (6)(b)] and any other evidence that may be adduced before him or her that the accused person is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, commit him or her to a specified designated centre until an order is made under section 13F3[or13A], or

(ii) if he or she is satisfied, having considered the evidence of an approved medical officer adduced pursuant to F4[subsection (6)(b)] and any other evidence that may be adduced before him or her that the accused person is suffering from a mental disorder or from a mental disorder (within the meaning of the Act of 2001) and is in need of out-patient care or treatment in a designated centre, make such order as he or she thinks proper in relation to the accused person for out-patient treatment in a designated centre.

(d) Where the court determines that the accused person is fit to be tried the proceedings shall continue.

F4[(6) (a) For the purposes of determining whether or not to exercise a power undersubsection (3)(b)(i)or(ii)orsubsection (5)(c)(i)or(ii), the court, having considered the evidence of an approved medical officer adduced before it in respect of the accused person—

(i) may for that purpose—

(I) commit the accused person to a designated centre for a period of not more than 14 days, or

(II) by order direct that the accused person attend a designated centre as an out-patient on such day or days as the court may direct within a period of 14 days from the date of the making of the order,

and

(ii) shall direct that the accused person concerned be examined by an approved medical officer at the designated centre.

(b) Within the period authorised by the court under this subsection, the approved medical officer who examined the accused person pursuant to subparagraph (ii) of paragraph (a) shall report to the court on whether or not in his or her opinion the accused person is—

(i) suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, or

(ii) suffering from a mental disorder or a mental disorder (within the meaning of the Act of 2001) and is in need of out-patient care or treatment in a designated centre.]

(7) Where on the trial of an accused person the question arises as to whether or not the person is fit to be tried and the court considers that it is expedient and in the interests of the accused so to do, it may defer consideration of the question until any time before the opening of the case for the defence and if, before the question falls to be determined, the jury by the direction of the court or the court, as the case may be, return a verdict in favour of the accused or find the accused person not guilty, as the case may be, on the count or each of the counts on which the accused is being tried the question shall not be determined and the person shall be acquitted.

(8) Upon a determination having been made by the court that an accused person is unfit to be tried it may on application to it in that behalf allow evidence to be adduced before it as to whether or not the accused person did the act alleged and if the court is satisfied that there is a reasonable doubt as to whether the accused did the act alleged, it shall order the accused to be discharged.

(9) Where evidence is adduced before the court under subsection (8) but the court decides not to order the accused person to be discharged, no person shall publish a report of the evidence or the decision until such time, if any, as—

(a) the trial of the person concludes, or

(b) a decision is made not to proceed with the trial of the person or the trial is otherwise not proceeded with.

(10) A person who contravenes subsection (9) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both.

5. Verdict of not guilty by reason of insanity.

5.— (1) Where an accused person is tried for an offence and, in the case of the District Court or Special Criminal Court, the court or, in any other case, the jury finds that the accused person committed the act alleged against him or her and, having heard evidence relating to the mental condition of the accused given by a consultant psychiatrist, finds that—

(a) the accused person was suffering at the time from a mental disorder, and

(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—

(i) did not know the nature and quality of the act, or

(ii) did not know that what he or she was doing was wrong, or

(iii) was unable to refrain from committing the act,

the court or the jury, as the case may be, shall return a special verdict to the effect that the accused person is not guilty by reason of insanity.

(2) If the court, having considered any report submitted to it in accordance with subsection (3) and such other evidence as may be adduced before it, is satisfied that an accused person found not guilty by reason of insanity pursuant to subsection (1) is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre, the court shall commit that person to a specified designated centre until an order is made under section 13F5[or13A].

(3) (a) For the purposes of subsection (2), if the court considers that an accused person found not guilty by reason of insanity pursuant to subsection (1) is suffering from a mental disorder (within the meaning of the Act of 2001) and may be in need of in-patient care or treatment in a designated centre, the court may commit that person to a specified designated centre for a period of not more than 14 days and direct that during such period he or she be examined by an approved medical officer at that centre.

(b) The court may, on application to it in that behalf by any party and, if it considers it appropriate to do so, after consultation with an approved medical officer, extend the period of committal under this subsection, but the period or the aggregate of the periods for which an accused person may be committed under this subsection shall not exceed 6 months.

(c) Within the period of committal authorised by the court under this subsection the approved medical officer concerned shall report to the court on whether in his or her opinion the accused person committed under paragraph (a) is suffering from a mental disorder (within the meaning of the Act of 2001) and is in need of in-patient care or treatment in a designated centre.

(4) Where on a trial for murder the accused contends—

(a) that at the time of the alleged offence he or she was suffering from a mental disorder such that he or she ought to be found not guilty by reason of insanity, or

(b) that at that time he or she was suffering from a mental disorder specified in section 6(1)(c),

the court shall allow the prosecution to adduce evidence tending to prove the other of those contentions, and may give directions as to the stage of the proceedings at which the prosecution may adduce such evidence.

6. Diminished responsibility.

6.— (1) Where a person is tried for murder and the jury or, as the case may be, the Special Criminal Court finds that the person—

(a) did the act alleged,

(b) was at the time suffering from a mental disorder, and

(c) the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act,

the jury or court, as the case may be, shall find the person not guilty of that offence but guilty of manslaughter on the ground of diminished responsibility.

(2) Subject to section 5(4), where a person is tried for the offence specified in subsection (1), it shall be for the defence to establish that the person is, by virtue of this section, not liable to be convicted of that offence.

(3) A woman found guilty of infanticide may be dealt with in accordance with subsection (1).

7. Appeals (fitness to be tried).

7.— (1) An appeal shall lie to the Circuit Court from a determination by the District Court, pursuant to section 4(3), that an accused person is unfit to be tried.

(2) On an appeal from a determination referred to in subsection (1), the Circuit Court shall, if it allows the appeal, order that the appellant be tried or retried, as the case may be, by the District Court for the offence alleged, but if the District Court, pursuant to section 4(7), postponed consideration of the question as to the accused’s fitness to be tried and the Circuit Court is of opinion that the appellant ought to have been found not guilty before the question as to fitness to be tried was considered, the court shall order that the appellant be acquitted.