The Mentally ill should be spared the stress of a courtroom trial

Our insanity laws mean cases are heard even when the verdict is a foregone conclusion.

The Irish State regularly subjects people it knows to be innocent to a criminal trial in the hope that they will be acquitted.

Welcome to the baffling intersection between criminal law and mental health.

Section 5 of the Criminal Justice (Insanity) Act 2006 allows someone accused of a crime to enter a plea of not guilty by reason of insanity. The section replaces the ancient and contradictory plea of guilty but insane (but unfortunately retains the stigmatising use of the word “insanity”).

The law requires that a consultant psychiatrist gives opinion evidence during trial about the accused’s mental state at the time of the alleged offence. In cases where there is doubt about an accused’s mental state, a jury will usually hear from two psychiatrists, one for the prosecution saying the accused was responsible for their actions and one for the defence saying the opposite.

In such cases, if a jury believes the defence it must find the accused not guilty by reason of insanity. The judge then has the power to send the unfortunate person to a psychiatric facility for assessment and possible further treatment. There is ample oversight and the patient’s status is assessed by an independent board every six months.

So far so good. Mentally-ill people avoid prison and get the treatment they need; treatment which might be a lot longer coming in the absence of criminal proceedings.

But what about cases where both sides agree that the accused was not mentally responsible? This is a relatively common occurrence and incredibly, the person still has to go through the rigours of a jury trial if the offence is before the Central or Circuit Criminal Court. This leads to the bizarre situation of both the defence and prosecution telling a jury to return the same verdict: not guilty by reason of insanity.

Such was the case in the recent trial of a man accused of harassing his extended family over a two year period. The law required that the accused, who appeared dazed and highly medicated in court, undergo a trial despite everyone knowing the outcome.

The jurors were in effect told what verdict to return by the prosecution, the defence and the judge and they complied after just 10 minutes of deliberation.

The absurdity of the law was even more stark in the 2012 trial of the son of former Labour Party MEP Proinsias De Rossa. Mr De Rossa was compelled to tell a jury how he was severely beaten by his son Fearghal who was going through a psychotic episode at the time.

“I believed I was going to be killed by my son and that he would spend the rest of his days in prison and I thought how terrible that would be,” he told a courtroom packed with lawyers, journalists and spectators.

The jury arrived at the inevitable verdict of not guilty by reason of insanity and Fearghal De Rossa was committed to the Central Mental Hospital for treatment. His father later explained through a barrister that he had to pursue criminal proceedings to get Fearghal to submit to psychiatric treatment.

In both trials, the jury was asked to rubberstamp the obvious. But not before barristers and solicitors had been hired and court time had been set aside. The accused, who were both accepted as legally innocent at all times, were subjected to the stress of a jury trial, something every the most mentally robust person finds challenging.

The practice also demeans the jury system by effectively stripping the jurors of their roles as judges of fact by telling them what verdict to return. And it opens up the slim possibility of a miscarriage of justice if the jury decides to go against the court and convict the accused.

It is not an entirely academic situation. In 2005, a jury in Kilkenny Circuit Criminal Court rejected an insanity plea and convicted a man of a serious assault despite being told by doctors for both sides that he was not legally responsible.

Mental health law has come a long way in Ireland since the days when we locked up more of our population in mental institutions than anywhere else on earth, including the then-Soviet Union. But we have to continue to find the best way of protecting the most vulnerable in society, even those who have committed incredible violence.

In cases where it is accepted someone is not mentally responsible for their actions, a judge led, non-criminal proceeding would surely be more appropriate and less onerous on all parties.

Evidence could be presented of the accused’s condition and treatment plan and the judge could order it take place, either within the community or if necessary as a secure in-patient, with all the oversights currently in place under present mental health legislation. Indeed, this is almost exactly what happens under Scottish law since 2010.

Such a measure would be a small change to our mental health laws but would go a long way towards rationalising how the criminal justice system deals with the most vulnerable in our society.

Published 20th July 2015 Irish Times.