Reform of the law on criminal insanity has been under discussion for 24 years, writes Carol Coulter, Legal Affairs Correspondent
An interdepartmental committee began discussing the treatment of persons suffering from mental disorders who came before the courts in 1978. The first draft of a Bill reforming the law on insanity as a defence emerged from this committee, chaired by Mr Justice Seamus Henchy, in 1981.
The law then, as now, had its origins in 19th century Britain, in the Criminal Lunatics Act of 1800. This provided that while a "not guilty" verdict would be entered where a person was insane, he (or she) would be kept in custody "during His Majesty's pleasure". In the 1883 Trial of Lunatics Act the verdict recorded was "guilty but insane", but the practical effect remained the same.
This was transposed into Irish law as detention "during the Government's pleasure". However, it was open to challenge on the grounds that it ran counter to the separation of powers between the executive and the judiciary, and for a time the question of possible release was dealt with by the court that made the original order.
However, the Supreme Court eventually passed this back to the Government. This issue is one of those which will be clarified by the new legislation to be brought to the Government today, with a special body, the Mental Health Review Board, now reviewing all detentions of people found not guilty by reason of insanity.
The main problem with the existing law is that our knowledge of mental illness has moved a long way since the 1880s, but the law remained unchanged. Juries were left with no adequate definition of insanity, or "disease of the mind", and were frequently confronted with two sets of psychiatrists battling it out on the two sides of a case. They had no alternative but to accept the opinion of one set on whether the accused was sane, and therefore had full moral responsibility for his or her actions.
This led to great inconsistencies in verdicts. Since this review process began, for example, John Gallagher was found by a jury to be insane, and therefore technically not guilty of the murder of his former girlfriend and her mother, though within months he claimed to have recovered his sanity and started an extremely well-planned and orchestrated campaign for his release.
On the other hand, Brendan O'Donnell, who showed far greater evidence of insanity in the months and years leading up to his murder of Imelda Riney, her son Liam and Father Joe Walsh, was found by a jury to be fully sane.
The then Minister for Justice, Mr Ray Burke, promised reform of the law in 1990, after Gallagher began campaigning for his release. Although he told journalists it was "at an advanced stage" no draft was produced.
His successor, Ms Nora Owen, also promised to reform the law and announced in 1995 that she had obtained Government approval for the drafting of a Bill and had "given it priority". It never appeared.
In February 1998, a spokesman for the last Minister for Justice, Mr O'Donoghue, told The Irish Times that the heads of a new Bill would be brought before the Dáil's summer recess. It was not. In January this year the spokesman said the new Bill had been approved for drafting. However, yet another Minister for Justice left office without reforming the law.
The long-awaited Bill is now about to be published. It may not be passed in its present form, as the area it covers is a controversial one, but the process has begun and the matter will soon be in the hands of the Oireachtas.