ANALYSIS:John Gallagher's future depends on the findings of an independent review – not the Minister for Justice, writes CARL O'BRIEN
IT WAS September 18th, 1988. John Gallagher, a 22-year-old post office van driver, had been going out with Anne Gillespie, a student aged 18. It was a short but turbulent relationship.
He was possessive; she was increasingly afraid of him. At one point she told gardaí that he had raped her.
She told Gallagher that she was leaving, that the relationship was over, but he refused to accept it.
Shortly afterwards, while she and her mother were visiting her grandmother in Sligo General Hospital, Gallagher drove up to their car and produced a .22 rifle. He killed Anne and her mother on the spot. Her uncle escaped death when the gun jammed.
In the trial the following year, Gallagher admitted killing the two women but pleaded he was insane at the time.
The court heard conflicting psychiatric evidence. By a 10 to two majority the jury accepted his claim, and he was found guilty but insane. Technically, therefore, although he admitted the acts, Gallagher was judged not guilty.
Within months of being admitted to the Central Mental Hospital, he claimed he was no longer insane and embarked on a lengthy but unsuccessful legal challenge to his detention.
Today, however, the legal landscape has changed. Until 2006, a person found “guilty but insane” of a crime could be detained indefinitely.
It was a throw-back to the antiquated Criminal Lunatics Act of 1800 which provided that if a person was insane they could be detained at “her Majesty’s pleasure”.
While a person convicted of serious crime might have a definite prison term, a person found guilty but insane could be detained with no prospect of release.
Six years ago, this all changed. An independent body – the Mental Health Review Board – now reviews the cases of all people who are found not guilty by “reason of a mental illness”. This replaced the old legislation and applies retrospectively to all cases under the old legislation.
As a result, all decisions concerning the discharge of people convicted but not guilty by reason of a mental illness are out of the hands of the Government or Minister for Justice.
Now that Gallagher has returned to Ireland, having absconded from the Central Mental Hospital in 2000, his fate lies with the review board.
Under the provisions of the 2006 legislation, all patients have an automatic right to a review every six months. Alternatively, they or the clinical director of the Central Mental Hospital may request a review sooner.
When reviewing the detention of a patient, the board is required to have regard to the “safety and welfare of the person” whose detention it is reviewing and the public interest.
Following a review, the board must make an order for further detention in the Central Mental Hospital, or to discharge the patient either unconditionally or subject to conditions for treatment or supervision.
Typical conditions attached include provisions to comply with outpatient treatment, home visits by treatment teams, conditions over where to reside or the return of a patient if they are in breach of their discharge orders.
Prior to an amendment of the 2006 legislation, the board was reluctant to discharge anyone on conditions. This was because it wasn’t satisfied the conditions themselves were enforceable.
That has now changed. Last year, for example, the board approved the conditional discharge of seven patients. Once a patient is discharged, the board can impose further conditions at any time. A person on conditional discharge may also apply for unconditional discharge after 12 months.