A new Mental Health Review Board chaired by a lawyer or judge with ten years' experience, and the right of both defence and prosecution to appeal decisions on insanity, are among the provision of the Criminal Law Insanity Bill, published today.
The Bill, which has been seen by The Irish Times, updates the law on insanity in criminal trials for the first time in over a century, and contains a detailed definition of mental disorders and extensive new provisions on fitness to be tried.
It distinguishes between "fitness to be tried" and a verdict of "not guilty by reason of insanity". As reported last month in The Irish Times, it also introduces a new verdict in cases of murder, of guilty but with diminished responsibility, which will result in a conviction for manslaughter.
According to the Bill, an accused person will be deemed "unfit to be tried" if he or she, because of a mental disorder, cannot understand the evidence, instruct a legal representative, make a proper defence or object to a juror.
A mental disorder includes mental illness, mental handicap or dementia. It does not include personality disorder, which has been argued in cases which have come before the Irish courts in the past.
If the person is found unfit to be tried, the proceedings will be adjourned and the person will receive a psychiatric assessment in the Central Mental Hospital. He or she could be found fit to be tried at a later date and returned to the court.
Even where the person has been found unfit to be tried, the court can decide that there is reasonable doubt that he or she committed the acts alleged, and then acquit the accused person.
The court could find the person fit to be tried, and the defence could still plead insanity at the time of the commission of the offence.
If a person is then found guilty but insane, he or she will be sent to a "designated centre" for detention and treatment.
The Minister for Health and Children, with the consent of the Minister for Justice, will designate such centres, which can be either psychiatric hospitals or prisons.
The verdict of guilty but with diminished responsibility is intended to deal with the situations, which have arisen in the past, where a jury returned a verdict of insanity, even thought the accused person did not meet the legal criteria for insanity.
A person convicted of manslaughter under this provision can face a sentence of up to life imprisonment, but sentences following a manslaughter conviction are at the discretion of the court, and can be much less.
A person deemed unfit to be tried, or found guilty but insane or guilty but with diminished responsibility, can appeal these decisions. The prosecution can also appeal against any such finding.
The Mental Health Review Board, which will contain a consultant psychiatrist as well as an experienced lawyer or judge, and other nominees of the Minister, will review the cases of all those detained following an insanity verdict.
It will do so at six-monthly intervals, or following an application from the head of a "designated centre", or the person him- or herself.
As well as ordering the person's release, it can find that he or she is fit to be tried, and refer the person back to the court.
This section of the Bill is retrospective, so those detained under the old law will fall within the remit of the Mental Health Review Board.
The Bill also contains a number of provisions which bring the law on court martials within its ambit.