The Soham case highlights a contrast between Irish and British insanity law, writes Joe Humphreys
Psychiatric illness and the law have always had an uneasy relationship. Ever since Daniel McNaughton shot and killed the private secretary to the British prime minister Sir Robert Peel in a botched assassination attempt in 1843, debate has raged in the UK over whether or not mental illness absolves, or diminishes, wrongdoing.
McNaughton was found not guilty by reason of insanity, having revealed a history of paranoid delusions, and his case spawned the first set of informal rules on insanity in British law.
Since then, there have been numerous additions to the statute books in Britain, most notably, in reference to the Soham case, the Mental Health Act, 1983.
It is under the provisions of this Act that Mr Ian Huntley, the man charged with the murders of Holly Wells and Jessica Chapman, has been detained in a secure hospital in Nottinghamshire where his condition will be assessed by psychiatrists.
The initial detention period is 28 days, although the police can apply for a six-month extension.
The handling of Mr Huntley's case demonstrates a dramatic difference between British and Irish law. In the Republic, similar defendants suspected of mental illness are remanded in custody in prison. More importantly, when they come to court, they face a vastly less developed set of legal procedures, some of which have remained unchanged for 150 years.
The contrast is evident from the moment of detention.
In Britain, defendants are subjected to separate assessments to establish whether or not they are fit to plead. Defendants found unfit to do so are detained under the Mental Health Act in secure psychiatric units until they are considered fit to stand trial.
At this stage, defendants can plead guilty to manslaughter with diminished responsibility, which attracts a maximum sentence of life imprisonment. Alternatively, they can raise the defence of insanity.
Persons found not guilty by reason of insanity can be detained indefinitely at a psychiatric hospital under the Act. Often patients are released, as was the case with schizophrenic Eden Strang who walked free from a hospital last March, less than three years after attacking a London congregation in 1999 with a samurai sword. He had been found not guilty through insanity of attempted murder.
While such provisions have attracted criticism in Britain, they are widely recognised as more desirable than the Irish alternative. At present, there are only two verdicts available to Irish courts: guilty, implying full knowledge of the implications of the act committed; or insane, and therefore not guilty because of an incapacity to understand the meaning of the crime.
If the latter verdict is returned, the person is detained at "the government's pleasure", which in practice means indefinitely. A legally innocent person can, however, as in the John Gallagher case, seek release on the grounds that he has regained his sanity.
This loophole is understood to have discouraged juries from returning guilty but insane verdicts in many recent cases.
Mr Gallagher, who was found guilty of the murder of his former girlfriend, Ms Anne Gillespie, and her mother in 1988, but found to be insane, absconded to Britain in 2000. British police say they are powerless to extradite him because, technically, he received no conviction.
The need for a revision of the law was emphasised by Mr Justice Carney in the Central Criminal Court last May, when he criticised the legislature for leaving him powerless to make a hospital order for a young paranoid schizophrenic convicted of strangling his mother.
Such an order, he said, "is in the power of every judge in the UK and, I suspect, every judge in the civilised world".
Successive governments have promised legislation, and this one is no different. According to a spokesman for the Department of Justice, a proposed Criminal Law (Insanity) Bill is now with parliamentary drafters.
Under the proposed legislation, new verdicts of "not guilty by reason of insanity" and "guilty with diminished responsibility" would replace "guilty but insane". Also, in a parallel of UK law, the proposed Bill will address the issue of fitness to plead in criminal proceedings.