The reformed law on criminal insanity came into operation with little fanfare earlier this month, some 30 years after the need for it was identified. The previous legislation had its origins in 19th century English law, and bore little relation to modern understanding of mental illness. However, successive attempts at reform foundered due to government indifference, as the issue faded from public view between spectacular cases highlighting its deficiencies.
One of the most controversial was that of John Gallagher who successfully pleaded he was insane when he killed Anne Gillespie and her mother in 1988. A few months later, he claimed he had recovered his sanity and started a campaign for release.
Under the regime provided for by the new law, it is difficult to envisage something similar happening again. Where a person claiming to suffer from mental illness is facing trial for a crime like murder, the first task will be to establish whether he is fit to be tried, based on his ability to perform six functions considered necessary to participate in a trial. The judge, rather than a jury, will make the determination. Where the judge rules the accused is not fit, he can order the person to be detained in a designated centre. And the clinical director of that centre can bring the person back to court if circumstances change.
The Act also provides for the setting up of a Mental Health (Criminal Law) Review Board, which will be responsible for reviewing detentions under the Act.
Where a person is found fit to be tried, and the trial goes ahead, the accused can bring forward a defence of insanity, or "mental disorder", claiming that he did not know the nature of his action nor that what he was doing was wrong, or that he was unable to refrain from committing it. A psychiatrist will be called to give evidence about the mental state of the accused. Where he is found not guilty because of a mental disorder, the judge can order his detention in a designated centre or other forms of treatment. Any detention is subject to review by the Mental Health (CL) Review Board, and is no longer a decision for the Minister for Justice.
Where a person fails to convince the jury that he was suffering from a mental disorder that rendered him incapable of understanding the nature of the crime of murder, or does not even make such a claim, he may nonetheless make a defence that he suffered from a mental disorder that diminished substantially his responsibility for the act. That will allow for a verdict of manslaughter, and for the person to be sentenced accordingly.
The new law has yet to be tested in the courts and anomalies may emerge, especially around the relationship between a personality and mental disorder. But the Act represents a major and long-overdue advance, in that it codifies the principles and procedures applicable when people suffering from mental illness are accused of crimes like murder and it provides for proper review of their detention in psychiatric institutions.