BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. Article 40.4.1 of the Constitution provides that no citizen shall be deprived of his personal liberty save in accordance with law. Article 40.4.2 enjoins this Court, upon a complaint being made that a person is being unlawfully detained, to forthwith inquire into the complaint and after giving the person in whose custody he is detained an opportunity to justify the detention, to order the release of such person from such detention unless satisfied that he is being detained in accordance with law. It is well settled that the expression "in accordance with law" in Article 40.4 does not mean simply in accordance with a statutory provision; adopting the words of Henchy J. in King -v- Attorney General (1981) I.R. 233, it means

2. On this inquiry under Article 40.4.2, the Notice Parties seek to justify the detention of the Applicant by the Respondent in the Central Mental Hospital in reliance on, inter alia, an Order of the Central Criminal Court made on 19th July, 1989, as amended by an Order of the Central Criminal Court made on 17th December, 1990 and confirmed by a decision of the Supreme Court delivered on 12th February, 1991. The Order dated 19th July, 1989 was made consequent on a special verdict returned pursuant to Section 2(1) of the Trial of Lunatics Act, 1883 (the 1883 Act) by the jury at the trial of the Applicant for the murders of Anne Gillespie and Annie Gillespie to the effect that the Applicant was guilty of the acts charged but insane at the time of the commission of the acts alleged. By the combined operation of the Orders dated 19th July, 1989 and 17th December, 1990, it was ordered, pursuant to Section 2(2) of the 1883 Act, that the Applicant be kept in custody as a criminal lunatic to be detained in the Central Mental Hospital until the pleasure of the Government of Ireland is known.

3. The true construction of the provisions of Section 2 of the 1883 Act and the effect of the special verdict and of the Orders of the Central Criminal Court have already been considered by the Supreme Court in Application of Gallagher (1991) 1 I.R. 31. As to the effect of the special verdict, McCarthy J., with whom the other members of the Court concurred, stated as follows at page 37:-

4. The effect of the Order made under Section 2(2) of the 1883 Act was stated in the following passage at page 38:-

5. Later in the judgment, McCarthy J. outlined the manner in which an application for release by a person detained under Section 2(2) should be dealt with and stated as follows:-

6. The two passages from the judgment of McCarthy J. quoted above which deal with the effect of the Order made under Section 2(2) of the 1883 Act, in my view, contain a comprehensive, clear and unambiguous statement of -

7. This inquiry arises out of the Applicant's third application to the executive for his release since the decision of the Supreme Court. At the core of the controversy between the Applicant and the Notice Parties as to the conduct and outcome of the proceedings on that application is a dispute as to the test which the Supreme Court stipulated should be applied by the executive in determining the duration of the detention of a person under Section 2(2) of the 1883 Act. Counsel for the Applicant submitted that a single, and largely clinical, test is to be applied and it is whether the person is suffering from a mental disorder such as to warrant his continued detention. The proper approach, it was submitted, is to consider first whether the Applicant is suffering from a mental disorder. If he is, one then considers whether it is a disorder such as to warrant his continued detention. The mental condition must be one which is present and persistent. Account may be taken of future dangerousness only as a component of the person's mental condition, not divorced from it. Counsel for the Notice Parties, on the other hand, submitted that the key criterion is whether it is safe to release the person. In determining whether it is safe to release or not, the executive is entitled to have regard to both the past and present health of the person and the prognosis. Detention under Section 2(2) may lawfully continue if the person detained is dangerous but not mentally ill.

8. In my view, there is no inconsistency between and the same test is posited in the two passages from the judgment of McCarthy J. quoted above which deal with the effect of an Order under Section 2(2) of the 1883 Act, although slightly different formulae are used in them. The portion of the judgment which intervenes between the two passages, in which there is reference to Section 165 of the Mental Treatment Act, 1965 and the judgment of the Supreme Court In Re: Philip Clarke (1950) I.R. 235, in my view, was intended as a commentary on the nature of the role of the executive in determining the lawful duration of the detention - that it is the exercise of an executive function rather than a judicial power - rather than on the task the executive has to perform. That task is expressed in both passages in plain non-technical language and the terms "mental health" and "mental disorder" are clearly not intended to have technical meanings ascribed to them. It is to determine whether by reason of mental ill health the person currently constitutes such a risk or danger to the public or to a section of the public or to himself that he should be detained. Mental ill health in this context encompasses all forms of mental illness and disorder recognised by psychiatry: major illnesses, such as schizophrenia and manic depression; lesser mental illnesses or neuroses; and personality disorders. The foundation of such a determination is the evidence of experts, such as psychiatrists and psychologists, as to the current clinical condition of the person, his past clinical condition and behaviour being relevant only insofar as they are relevant to an assessment of his current mental condition.

9. The test contended for by Counsel for the Notice Parties, dangerousness whether attributable to mental ill health or not, fails to take account of the clear requirement in the formulation of the test by the Supreme Court which links continued detention or release to the existence or non-existence respectively of mental ill health. Furthermore, to construe Section 2(2) of the 1883 Act as permitting detention while a person is dangerous but not mentally ill would be to construe it as permitting deprivation of liberty for the purpose of preventing possible future criminal activity or deviant behaviour, in other words, preventive detention, which is a construction which is impermissible under the Constitution ( The People (Attorney General) -v- O'Callaghan (1966) I.R. 501 and Ryan -v- Director of Public Prosecution (1989) I.R. 399) and cannot have been intended by the Supreme Court.

10. In broad outline, while accepting that his committal to detention in the Central Mental Hospital under the Orders of the Central Criminal Court was lawful, the Applicant's case is that the processing by the executive and the outcome of his third application for his release were so fundamentally flawed and unlawful as to vitiate the legality of his detention, entitling him to immediate release. The Applicant was constrained to advance this argument and seek his immediate unconditional release because of the nature of the remedy afforded by Article 40.4.2 and the limited relief which it is open to the Court to grant when that remedy is invoked, as explained by Finlay C.J. obiter in the following passage from his judgment In Re: D. (1987) I.R. 449 at page 457:-

11. The remedy the Applicant has invoked and the basis on which he supports his claim to immediate relief raises an issue of principle as to the nature of an irregularity, breach of rights or defect in the adjudication by the executive of an application by a person detained under Section 2(2) of the 1883 Act which will render his detention unlawful and entitle him to immediate release. The authorities give little guidance on this issue. It seems to me that a range of factors come into play in consideration of the issue. First, there must be a recognition that the special verdict of the jury has given the person the status of an acquitted person. Secondly, there must be a recognition that the underlying basis of the detention, the finding of past insanity by the jury, places the person in a class of persons the protection of whose rights under the Constitution must be of particular concern to the organs of State established by the Constitution. As Costello P. said in R.T. -v- Director of the Central Mental Hospital (1995) 2 I.R. 65, in considering whether Section 207 of the Mental Treatment Act, 1945 was unconstitutional, at page 79:-

12. Thirdly, account must be taken of the purpose of the detention and whether that purpose has been adequately fulfilled, so that the necessity which justified it no longer exists, or alternatively, whether the purpose remains unfulfilled to an extent that continued detention is mandated. In the case of detention under Section 2(2) of the 1883 Act, the purpose of such detention is to be inferred from the test to be applied in determining the duration of the detention: it is to protect the public and/or the person detained from risk and dangerousness attributable to the mental ill health of that person. In his judgment in Application of Gallagher , McCarthy J., at page 37, characterised detention under Section 2(2) in general terms as " the carrying out of the executive's role in caring for society and the protection of the common good ". This echoes the characterisation of the provision of Section 165 of the Mental Treatment Act, 1945, the validity of which was in issue in In Re: Philip Clarke (1950) I.R. 235, as "paternal" and as "clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally" (per O'Byrne J. at page 247). Fourthly, the gravity of the irregularity, breach or default falls to be considered and whether it can be appropriately redressed by a less radical remedy than immediate release. For instance, an order of mandamus directing the executive to hold a new inquiry and in its conduct to adhere to fair and constitutional procedures should in most cases constitute an appropriate redress of a breach of the audi alteram partem rule.

13. Without suggesting that the foregoing is an exhaustive catalogue of the factors, constant and variable, which fall to be considered in determining whether an irregularity, a breach or a default is so fundamental as to cross the threshold and taint the detention with illegality so that it is no longer detention in accordance with law, in my view, all of those are factors which must be weighed in the balance in resolving that issue.

14. The Applicant's third application to the executive for his release was referred by the first named Notice Party (the Minister) to the Advisory Committee established by the Government in September, 1991 to advise the Minister on applications for release from the Central Mental Hospital of persons found guilty but insane. The Advisory Committee, which comprised a senior counsel, who was its chairman, a consultant psychiatrist and a general medical practitioner, reported to the Minister on 31st July, 1995. In its report, the Committee recited the materials it had considered and the persons it had interviewed, including the Respondent and Dr. Don Lydon. The Advisory Committee then recorded its finding in the following terms:-

15. The Advisory Committee then made the following recommendations in the following terms:-

16. The Applicant acknowledged that the Advisory Committee acted scrupulously in accordance with fair procedures and he did not seek to impugn either the finding of the Advisory Committee or its recommendations. The Applicant's complaint focused on the conduct of the Minister following receipt of the Advisory Committee's Report.

17. The Minister's conduct of the processing of the Applicant's application after receipt of the Advisory Committee's report, as reflected in communications from her Department and other State agencies to the Applicant and his legal advisers, can be summarised as follows:-

18. That letter was framed in such a way as not to elicit a response and there was no response to it.

19. There followed a re-statement of the Minister's view that a limited programme of outings for the Applicant should be considered in the same terms as expressed in the letter of the 30th November, 1995 to the Chairman of the Advisory Committee and a proposed programme of outings was then outlined in the following terms:-

20. It was pointed out that authorisation for a particular outing would be contingent on satisfactory outcome of previous outings and that the programme would by reviewed by the Minister at the end of the six month period in the context of the outcome of outings to that date and all the advice available to her.

21. Counsel for the Applicant contended, in my view with some justification, that there is a lack of clarify as to what decision the Minister made. In an Affidavit filed in these proceedings sworn on 14th June, 1996 a Principal Officer of the Department of Justice, having referred to the commencement of this inquiry on 22nd April, 1996, went on to aver as follows:-

22. On the basis of the evidence, including what is revealed in the considerable amount of internal departmental documentation which has been put in evidence, I find that no decision was made by the Minister on the Applicant's application for release until after 22nd April, 1996. I find a decision was made by the Minister on the application between 22nd April, 1996 and 8th May, 1996 and that this decision was precipitated by the institution of this inquiry. The decision was to accept the advice of the Advisory Committee, which I understand to entail an adoption of the finding made by the Advisory Committee and a commitment to implement its recommendations, the means of implementation to be the programme of outings, details of which were subsequently notified to the Applicant. The Government approved that decision. While I am unsure of the true import of the statement in the letter of 15th July, 1996 that it is not the intention of the Minister to consider the Applicant for discharge on a "phased release" basis, I do not interpret it as a resilement from the decision to accept the Advisory Committee's advice. In the aide memoire for Government, it was stated that the Minister intended to inform the Court in these proceedings "of her decision to commence the programme of temporary release".

23. When this matter came to hearing on 17th July, 1996 the factual position, accordingly, was that the Minister had decided to accept the advice of the Advisory Committee. This decision was approved by the Government. In implementation of the recommendation of the Advisory Committee, the Minister had proposed the programme of outings to the Applicant and had undertaken to review the matter at the end of the programme.

24. The specific grounds relied on by the Applicant at the hearing in support of his contention that his detention in the Central Mental Hospital is no longer in accordance with the law were as follows:-

25. The Applicant has not impugned the finding of the Advisory Committee and, in my view, it is not open to the Applicant to challenge the Minister's decision to accept that finding. Moreover, on the basis of the evidence adduced of the material before and the deliberations of the Advisory Committee, the finding of the Advisory Committee and its recommendations based on that finding were consistent with the evidence before it and could not be successfully challenged.

26. It was further submitted that there has been a breach of the Applicant's rights in that he was entitled to, but did not get, a prompt decision on his application. In accordance with fair and constitutional procedures, the constitutionally protected right at issue being the fundamental right to liberty, the Applicant was entitled to a reasonably prompt decision on his application but he did not get it. In my view, his failure to respond to the request in the letter of 21st December, 1995 that he reconsider the offer of educational/rehabilitative work training opportunities does not justify the failure to make a decision on his application until May 1996. In my view, the Minister has no power to require the Applicant to give a commitment to embark on an educational or training programme as a precondition to a decision on his application for release. No other justification for the delay was advanced and none is discernible on the evidence. However, while the delay has infringed the Applicant's rights, the infringement is not of the order to render his detention unlawful and it has been rectified, the decision having been made.

27. It was also submitted that the Applicant's constitutional rights have been violated because he has not been given a reasoned decision on the central issue. The Minister, in adopting the finding of the Advisory Committee, adopted its reasons for that finding. Although the Advisory Committee did not set out the reasons for its finding and for its recommendations in express terms in its report, it is implicit that the basis of its conclusion was that a programme of limited periods of freedom required to be instituted on a trial basis before a decision to allow greater periods of freedom or release could be made. If there was any breach of the Applicant's rights by reason of the failure to give him a reasoned decision, and in my view there was not, that breach would not be of the order to render his detention unlawful.

28. It was also contended that the programme offended the principle of proportionality in that the period of the proposed outings could not provide any significant useful information on the review by the Advisory Committee.

29. The application of the principle of proportionality is inherent in the construction of Section 2(2) of the 1883 Act stipulated by the Supreme Court in Application of Gallagher , in that detention under that provision is permitted only so long as is necessary to achieve the objective of the provision. It follows, in my view, that when, on consideration of an application for release from detention under Section 2(2), a relaxation of total deprivation of liberty is indicated for a particular purpose, the relaxation put in train must be proportional to that purpose. Furthermore, in this case, the Notice Parties have justified the continued detention of the Applicant in part on the adoption of the advice of the Advisory Committee. That being the case, in my view, the Applicant is entitled to have the recommendations of the Advisory Committee properly implemented in accordance with the Advisory Committee's intentions, not merely the Minister's interpretation of them. This involves the Applicant being afforded limited periods of monitored freedom consistent with the finding of the Advisory Committee and of sufficient frequency and duration to test him in a non-institutionalised environment for the purpose of aiding the determination of the central issue, whether he is suffering from a mental disorder warranting his continued detention, on the promised review by the Advisory Committee. While it is for the Minister, not the Court, to devise a scheme for the implementation of the recommendations of the Advisory Committee, such implementation is within the ambit of judicial review.

30. The Minister did not seek the advice of the Advisory Committee as to the adequacy of the proposed programme, nor did she seek the advice of the Respondent, who has been responsible for the Applicant's clinical care since January 1995. While it must be accepted that there is certain expertise in the Minister's department in the area of parole and of temporary release from the Central Mental Hospital, given the nature of the test which the law requires the executive to apply in determining the permitted duration of detention under Section 2(2), it would have been prudent to have sought the assistance of the Advisory Committee in devising the scheme. An alternative prudent course would have been to seek the advice of the Respondent and to allow the Applicant an opportunity to comment on that advice.

31. Although, in the evidence some doubts were raised as to the sufficiency of the frequency and duration of the proposed periods of freedom, in my view, if this issue was arising on an application for judicial review, there would not be a basis for quashing the element of the Minister's decision in relation to the manner of implementation of the recommendations of the Advisory Committee having regard to the evidence adduced. Moreover, even if the Applicant could make the case that that element of the Minister's decision is bad in law, in my view, this would not give rise to an entitlement to immediate release on the basis that the detention was no longer lawful. The matter would be more appropriately addressed by an order of mandamus.

32. The most compelling evidence, in my view, which emerged on this hearing is the report of the Advisory Committee from which it is to be inferred that that independent expert group concluded that the protection of the public at this time requires that the Applicant should not be granted any greater freedom than the periods of freedom recommended by it and on the basis recommended. Insofar as the Applicant's grounds of challenge to the Minister's decision are sustainable, in my view, they fall way short of establishing that the decision-making process and the decision were so fundamentally flawed and unlawful as to vitiate the legality of the Applicant's detention.

33. Despite the State's apparent antipathy to the word "release", as evidenced by the letter dated 15th July, 1996, the executive, in accepting the Advisory Committee's advice is committed to a programme, which, if successful, must inevitably lead to more frequent and longer periods of freedom for the Applicant and may ultimately lead to release. However, it is impossible to predict if the process will be successful or how long it will take.