SINCE John Gallagher successfully pleaded insanity for the murder of Anne Gillespie and her mother in 1988, only to claim he had recovered his sanity a few months later and seek his release, juries have been reluctant to accept this plea.
Yet there is no doubt that Patrick Granaghan, recently convicted of murdering a 13 year old girl, and Brendan O'Donnell, convicted of the murders of Imelda Riney, her son Liam, and Father Joe Walsh, exhibited more evidence of insanity than had John Gallagher prior to his crime.
The law offers juries faced with this defence only two options: to find the defendant sane and guilty, or guilty but insane, which is technically a not guilty verdict. Despite numerous promises, its reform has been largely neglected.
Fine Gael called for its reform in 1990, following John Gallagher's first legal attempt at procuring his release, and the then Fianna Fail Minister for Justice, Mr Ray Burke, promised a new law in 1991. It never materialised, however, and in government Fine Gael has shown no more sense of urgency than its predecessor.
In late efforts to reform the law go back to 1978, when an interdepartmental committee, chaired by Mr Justice Seamus Henchy, drew up a report on the treatment of persons suffering from mental disorders who appear before the courts. A draft Bill was produced by the committee, but nothing came of it.
In June 1995 the Minister for Justice, Mrs Owen, announced that she had obtained Government approval for the drafting of a Bill on the subject, and had "given it priority". Little has been heard of it since.
The present legislation has its origins in 19th century British law. It is based on the view that an insane person cannot be aware of the import of his or her actions and, in the absence of "guilty knowledge", is legally not guilty.
The first law in this area, the Criminal Lunatics Act, was passed in 1800 and specified that, while a "not guilty" verdict was recorded the person would be kept in custody "during His Majesty's pleasure". This was changed in the 1883 Trial of Lunatics Act where, although the person was still legally acquitted, the verdict recorded was "guilty but insane".
When transposed into Irish law this came to be "during the Government's pleasure". Here, too, in practice detention was indefinite.
However, a new practice came in 1973, which led eventually to John Gallagher seeking his release. This was based on the separation of powers in the Constitution, and it was felt this meant that the court which made the original order could order the release of the person detained indefinitely.
In 1986 Mr Justice Finlay elaborated on this, stating that a person detained under this legislation should he kept in custody only while his mental condition or his safety and that of others warranted it.
In the course of Gallagher's long legal campaign to secure his release the discretion of the courts in the matter was overruled by the Supreme Court, and the decision on a person's release was passed hack to the Government.
Our knowledge of insanity has moved a long way since the 1880s, but the law has not. In Ireland it is a very blunt instrument and is not geared to the nuances of modern psychiatry.
It appears that juries are now reluctant to bring in an insane verdict for fear of a repetition of the Gallagher affair. In the case of Brendan O'Donnell, for example, the jury heard how disturbed he had been following the death of his mother, and of his threats to his sister and his generally bizarre behaviour in the period leading to the murders.
The question it was asked to consider was whether he was aware of the moral content of his actions. The jury decided he was so aware and brought in a guilty verdict.
Last week another jury rejected the evidence of four psychiatrists that Patrick Granaghan's schizophrenia was responsible for his murder of the 13 year old girl in favour of the evidence of one that his reason for committing the crime was his failure to have sex with her.
Successive governments have been aware of the weaknesses in the existing law, and in February 1991, over a year after Gallagher had launched the campaign for his release, the then Minister for Justice, Mr Ray Burke, promised amending legislation.
This would resemble the much updated British legislation, he said, and would be based on the draft Bill drawn up by Mr Justice Henchy's committee in 1978. He told journalists that the draft legislation was "at an advanced stage".
But it was never brought before the Dail. Governments came and went and two committees were set up to examine whether Gallagher should be released. The Brendan O'Donnell case again raised the spectre of a technically not guilty verdict following horrific multiple murders, but no legislation appeared. It is now promised for the next Dail.