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Cite as:  IESC 25,  2 ILRM 182,  3 IR 188
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Judgment Title: DPP -v- Redmond
Composition of Court: Denham J., Geoghegan J., Fennelly J., Kearns J., Macken J.
Judgment by: Geoghegan J.
Status of Judgment: Approved
Notes on Memo: Result: Answer question as in judgment of Geoghegan, J. Fennelly, J. and
Kearns, J. also agree with answer in judgment of Geoghegan, J. Macken, J.
concurs with answer as set out in
Judgment of Geoghegan, J. and with conclusions of Geoghegan, J., Fennelly, J.
and Kearns, J. Denham J. answers question posed in the affirmative.
- 11 -
THE SUPREME COURTDenham J.
IN THE MATTER OF SECTION 16 OF
THE COURTS OF JUSTICE ACT, 1947
IN THE MATTER OF A CONSULTATIVE CASE
STATED FROM WESTERN CIRCUIT, COUNTY
IN THE MATTER OF A CRIMINAL PROSECUTION ENTITLED:-
AN POBAL AN AGRA AN STIURTHEORA IONCHUISEAMH
THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS
AccusedJUDGMENT of Mr. Justice Geoghegan delivered the 6th day of April 2006
This is a consultative Case Stated sent forward to this court by His Honour Judge Kevin Haugh, S.C. (as he then was) sitting in Castlebar Circuit Court as trial judge in an indictable prosecution for causing serious harm contrary to section 4(1) of the Non-Fatal Offences against the Person Act, 1997. Since the signing of the Case Stated, Judge Haugh has been appointed a judge of the High Court. Under the relevant statutory provisions however the President of the High Court, the President of the Circuit Court and Haugh J. (as he now is) have all agreed that Haugh J. should complete this case as a judge of the Circuit Court.
I think it important to set out the Case Stated in full. It reads as follows:
1. On the 1st July 2003 the above named accused was before Castlebar Circuit Criminal Court [sitting at the courthouse in Westport] on a count of causing serious harm contrary to section 4(1) of the Non-Fatal Offences against the Person Act, 1997. The particulars of the offence alleged that the accused did on the 20th November, 2002 at Castlebar in the county of Mayo intentionally or recklessly cause serious harm to one Liam Humbar.
2. Defence counsel (John F. Kiely B.L., instructed by Aidan Crowley, solicitor of Egan, Daughter and Company, solicitors, Castlebar, Co. Mayo) applied to the court for a jury to be empanelled to determine the issue as to whether or not the accused was fit to plead. This application was later withdrawn.
3. When arraigned before Castlebar Circuit Criminal Court (sitting at the courthouse in Westport) on the 1st July 2003 before Judge Harvey Kenny B.L., the accused pleaded guilty to the above count. The matter was then adjourned to the following term for sentence. The accused was in custody on the charge and was remanded in custody.
4. The matter was listed before me at Castlebar Circuit Criminal Court (sitting at the courthouse in Westport) on the 9th day of December 2003 and I fixed the 13th day of December 2003 for the sentence hearing.
5. On the 12th day of December 2003 Detective Garda R.J. Lawlor gave evidence before me in relation to the offence and the background circumstances.
6. The facts are briefly as follows:-
Around 9.30 a.m. on the 20th November 2002 the accused attacked the victim with a knife and caused him serious injuries. The attack was an unprovoked attack in the vicinity of St. Mary’s Psychiatric Hospital in Castlebar and was witnessed by a number of individuals. The accused has a psychiatric history and was attending the hospital on the morning in question for an appointment with his psychiatrist, Dr. John Connolly. The victim was an in-patient of St. Mary’s Psychiatric Hospital. Following the stabbing the accused went into an office in the psychiatric hospital. He told a person in the office that he had stabbed somebody and he told them where the knife was. No rational motive or discernible reason was established for the attack. The accused apparently told Dr. O’Rourke (psychiatrist) when examined on the day of the incident that he had heard voices telling him to “get them” and that his attack was in response to the voices.
7. By agreement with the prosecution the defence submitted a medical report dated the 26th day of March 2003 from Dr. Charles Smith (consultant psychiatrist in the Central Mental Hospital) and a medical report from Dr. Seamus Geraghty (consultant psychiatrist) dated the 29th November 2003 in evidence. The book of evidence contained a statement of evidence from Dr. John Connolly (consultant psychiatrist) and from Dr. D. O’Rourke (consultant psychiatrist). I read these medical reports and witness statements. A copy of each is attached hereto.
8. At this point in the proceedings I discussed with the defence counsel and prosecution counsel the fact that there was no defence of “diminished responsibility” in Irish law and I referred to the Supreme Court decision in The People (DPP) v. O’Mahony  I.R. 517.
9. I enquired as to whether or not I had any jurisdiction to raise an issue in relation to the plea of guilty by the accused if, having considered the evidence, I had substantial grounds for believing that the accused may have been insane in law at the time of the commission of acts alleged to constitute the offence and in substitution to enter on his behalf a plea of “not guilty”.
10. The matter was then adjourned to the 18th day of December, 2003 so that counsel could consider the position and make further submissions. On the 18th day of December, 2003 defence counsel indicated to the court that he would in any event be seeking a case stated on this point. Prosecution counsel indicated that some further time was needed to obtain instructions from the DPP. The matter was further adjourned to the 13th day of January 2004.
11. On the 13th day of January 2004 defence counsel reiterated that he was seeking a consultative case stated. Prosecution counsel indicated that he was not opposing the application for a consultative case stated. The matter was further adjourned for mention to the 23/1/04.
12. In light of the evidence before me, I am of the opinion that there are substantial grounds for believing that the accused may have been insane in law at the time of the commission of the alleged offence and that a defence of “not guilty” may be a more appropriate plea than a plea of “guilty”. As I understand the law, it is that a person who is found not guilty by reason of insanity is deserving of treatment not punishment whereas a person who pleads guilty or who is found guilty is deserving of punishment. I am informed that the plea of the accused in this instance is motivated by practical considerations – i.e. he would prefer to have a definite sentence rather than a situation whereby he would be detained at the pleasure of the Government in the Central Mental Hospital.
13. Transcripts of the sentence hearings are attached hereto.
In these circumstances I require the assistance of the Supreme Court and answers to the following questions:-
This case does not fall within any normal category. In fact I think that it is quite unique. The judge is sending forward a Case Stated on a question of whether he would be right or wrong in law in taking a particular step having regard not to particular facts found by him (which would be the normal case) but rather having regard to apprehensions on his part and a particular view of the law he is considering arising out of medical reports produced and dialogue between himself and counsel at the sentencing hearing. In this unusual situation the medical reports produced and the exchanges with counsel form the factual matrix on which the legal question arises. That is why, in my opinion, the learned judge annexed the reports and the transcript and I think that in the special circumstances and for the reasons which I have given it was appropriate that he should have done so. Both the reports and the discussion with counsel were freely referred to at the oral hearing of the Case Stated. I am quite satisfied that the court is entitled to have regard to them since they are the basis of the learned sentencing judge’s concerns.
It is not in contest (even though unfortunately it seems to be omitted from the Case Stated) that the accused when he pleaded guilty before Judge Harvey Kenny on the 1st July, 2003 was fit to plead. In considering how to answer the question posed by the learned trial judge in the Case Stated this is the most important fact to be taken into account.
Issues of insanity whether in the context of fitness to plead or in the context of the commission of the alleged offence are issues to be tried by juries and not by judges. The judge’s function is to explain to a jury what is meant by insanity in law which is not necessarily the same as what is meant by insanity in ordinary parlance and the jury then makes the findings. An accused who is fit to plead is perfectly entitled to be indignant at any suggestion that he was insane at the time of committing the alleged offence and to argue otherwise to a jury. I am not forgetting that there was a tactical motive in relation to the plea in this case and I will return to its relevance or lack of relevance later on in this judgment.
I intend to turn briefly to the law of insanity. I emphasize the word “briefly” because this Case Stated presents the court with a wholly unsuitable context in which to review the law of insanity whether by way of departing to some extent from the M’Naghten Rules or even interpreting them in the light of the occasional modern case such as Doyle v. Wicklow County Council  I.R. 55.
There were reports before the court from four different psychiatrists, Dr. John Connolly, Dr. D. O’Rourke, Dr. Seamus Geraghty and the well-known former director of the Central Mental Hospital, Dr. Charles Smith. These psychiatrists but particularly Dr. Smith would be well versed in the traditional law of insanity. Their reports must be read in that light and cannot be treated as exclusively medical. The exercise of the psychiatrists is neatly summed up in the second last paragraph of Dr. Smith’s letter to Egan, Daughter and Company, solicitors, Castlebar, dated 26th March, 2003.
“We had to address obviously to the crucial factor of whether this man had a core psychiatric illness, which was activated by alcohol and street drug usage or whether his paranoid illness was introduced by substance and alcohol use. The latter illness is usually short-lived responding reasonably quickly to anti-psychotic medication. It is our view that his illness was drug or alcohol induced and that while possibly explaining the assault does not excuse or mitigate it. As I understand it he would be held responsible in law for the disorganisation that drugs and alcohol cause particularly with his experience of earlier similar events.”
“… is there a difference between psychiatric illness and psychiatric condition that is brought on by substance abuse. If there is a difference, it seems to be based on a kind of judgmental attitude rather than the nature of the condition, and it would seem the nature of the condition is the matter which should be given concern, rather than the cause of a condition. I mean, should a person who is mentally incapacitated for reasons outside of their control be treated differently from people who may be said to be the author of their own misfortune because they happen to have indulged excessively in drink or some other substance?”
“There are two difficulties in this case: (1) is whether he is insane or not and (2) what is the Irish law in relation to insanity brought on by substance abuse voluntarily undertaken.?
The most that the trial judge has been able to say in the Case Stated is that he is of opinion “that there are substantial grounds for believing that the accused may have been insane in law at the time of the commission of the alleged offence.” It is perfectly clear from the interjections as contained in the transcript that the judge did not mean by that that the accused was insane in law on foot of traditional interpretations of the M’Naghten Rules. If there was a case, where on a reading of the book of evidence it seemed certain that there would have to be a verdict of insanity, it may well be that a judge in similar circumstances to these could force a change of plea. I intend to leave that as an entirely open question because I do not believe it arises in this case and should not be decided in those circumstances. The legal position in this case would have been wholly uncertain and while, having regard to modern concepts of mental illness and indeed the points of principle mentioned by the judge, it is perfectly possible that a verdict of insanity would be legally appropriate, that is as far as can be said. The accused has decided to plead guilty in the ordinary way. Nobody is suggesting that he is not fit to plead nor is there any certainty or even near certainty that if the facts emerging from the book of evidence are true he would have been insane at the time of the offences in the legal sense. In these circumstances, I find it difficult to see how he can be forced to alter his plea. The only conceivable basis would be the fact that the judge apparently as a consequence of questioning, elicited from counsel for the accused that the plea was tactical in that the accused did not want to be sent to a mental hospital indefinitely rather than have a fixed short term prison sentence at most.
I have never heard of the motive of an accused for pleading in a particular way being investigated and it would be against all the principles of the criminal law if it could be done unless of course an issue of duress had arisen. But that issue would be raised by the accused himself. I am, of course, talking of “motive” in the strict sense. There have always been cases where a trial judge realises that, say, an unrepresented accused has, without the benefit of legal advice, pleaded guilty when he clearly has a good defence. That situation, however, bears no relationship to what has been suggested here.
One can imagine that Mr. Kiely would have advised the accused that there was a possibility of a finding of insanity but that having regard to the terms of the medical reports that might not be so. In fact, I think it fair to say that Mr. Kiely assumed it would not be so until the views of Haugh J. were expressed. An accused is entitled to have tactical reasons as to whether, for instance, he pleads guilty rather than not guilty and I do not think his motive should ever be examined. From the accused’s point of view the reason that he pleaded was a perfectly good one and I think that it would be harsh to accuse him of abusing the process of the court by doing so nor do I think that it in any way was an abuse of the process of the court.
I now turn to the question of sentencing. It has been suggested that given that there is no defence in Irish law of diminished responsibility the sentencing judge on the plea of guilty cannot take into account diminished responsibility. I would wholly reject this proposition. If, for instance, in the past a person who suffered from psychiatric condition of some kind but did not qualify to come within the rather narrow principles of the M’Naghten Rules was found guilty it could not have been the case, in my view, that the sentencing judge could not take into account whatever lessening of responsibility there may have been. A sentencing judge can take into account any factor at all whether physical or mental which might tend reasonably to either mitigate or aggravate a sentence. I, therefore, believe that the learned trial judge’s concerns in this regard are ill-founded.
One of the illogical aspects of the whole process of dealing with cases where the defence of insanity has been raised is that the relevant insanity is the insanity at the time the offence was committed. If there is a guilty but insane verdict, the accused has to be kept in detention for a period at least even if he was sound in mind at the time of the trial and was fit to plead. That is one side of the coin. On the other side, there is the problem that a sentencing judge who came to the conclusion that the person he was sentencing was in fact of unsound mind and was dangerous on that account could not order detention in the Central Mental Hospital. However, the entire law in this area is anomalous and requires reform and the court should not fashion any principles directly flowing from the anomaly. In the scenario which I have depicted, there would be methods under the civil law under which such a person could be certified and detained.
I do not consider that I should answer the precise question as put because as I have already indicated there may be other types of cases where the powers of the judge may be different. A general answer would be unwise. I would answer the question in the following manner:
“The particular grounds for leading the learned trial judge to believe that the accused was insane at the time he committed the acts alleged to constitute the offence do not empower the judge to decline to accept the plea of guilty.”
JUDGMENT of MR JUSTICE FENNELLY delivered on the 6th day of April, 2006.
This is a Case Stated from His Honour Judge, now Mr Justice Haugh, when sitting in Westport as judge for the Castlebar Circuit Criminal Court.
The accused stood charged with one offence, namely that on 20th November 2002 at Castlebar he intentionally or maliciously caused harm to one Liam Humber contrary to section 4 of the Non-Fatal Offences Against the Person Act 1997.
The accused was arraigned on 1st July 2003 before His Honour Judge Kenny and pleaded guilty. The matter was adjourned for sentencing. The accused was remanded in custody. The matter came on before Judge Haugh in December 2003. The facts of the offence, as given in evidence were summarised in the Case Stated as follows:
The learned judge raised with counsel a question as to whether he had any jurisdiction “to raise an issue in relation to the plea of guilty by the accused if, having considered the evidence, [he] had substantial grounds for believing that the accused may have been insane at the time of commission of the acts alleged to constitute the offence and in substitution to enter on his behalf a plea of not guilty.”
Following adjournments and further consideration, counsel for the accused proposed and counsel for the prosecution did not oppose the judge stating a consultative case stated to this Court. The learned judge then expressed his position as follows:
The point raise is a novel one. The researches of counsel have produced no authority for the proposition that a trial judge may reject a plea of guilty in the circumstances outlined.
Counsel for the accused, Ms Grainne McMorrow, Senior Counsel, submitted that the accused was entitled to plead guilty. She acknowledged that the accused had a significant psychiatric history and that he would have been entitled to raise the defence of insanity, but he does not wish to do so. She informed the Court that, although the defence had initially raised an issue of fitness to plead, there is now no outstanding issue on that point. In fact, the accused wishes to maintain his plea of guilty, because he wishes to have a definitive outcome, in the form of a sentence of the court.
Mr Maurice Gaffney, Senior Counsel, on behalf of the Director of Public Prosecutions (“the DPP”) accepted that an accused person is normally entitled to choose how he wishes to plead, but queried whether this is so in all cases. The learned judge had jurisdiction to refuse a plea of guilty. If he sentenced a person in the position of the accused, he would be sentencing a person who is in law innocent. He is entitled to protect the process of the law from abuse.
Mr George Bermingham, Senior Counsel, for the Attorney General supported the submissions of the DPP. The question in the case stated should be answered in the affirmative. While unwilling to go so far as suggesting that the plea of guilty by the accused amounted to an abuse of process, he did suggest that it might be “a deception and a sham.” The sentencing judge would be bound to take into account the psychiatric background of the accused and to conclude that he was less responsible for his acts than others might have been, but he had to start from the proposition that he was dealing with a self-confessed criminal. The difficulty for the Circuit Judge was that he was not actually satisfied of this fact.
There is no denying the real dilemma with which the learned judge which confronted the learned judge. There was, as recited in the statement of facts of the case, no “rational motive or discernible reason” for the attack. Nonetheless, a serious assault had been committed. The accused, according to his counsel, does not remember attacking the injured party, though he is recorded as telling someone in the office of the hospital that he had stabbed someone.
Yet, the sentencing difficulty is not what is now before the court. Nor is there any question as to the content of the rules regarding insanity, although the case stated refers to a discussion of the absence of a defence of “diminished responsibility” and the decision of this Court in People (Director of Public Prosecutions) v O’Mahony  I.R. 517.
The key point is that insanity is a matter of defence. It is true that the Court of Criminal Appeal, in People(Attorney General) v Messitt [1972 I.R. 204 stated, per Kenny J, at page 213 that it is “the duty of the prosecution to give any evidence which they have on which the jury might reasonably come to the conclusion that the accused was insane.” This statement was made in the context of an acknowledgement that “the onus of establishing insanity……rests on the accused.” This proposition has been long established. The second of the M'Naghten Rules is that:
I believe that it remains the law that the onus of proof of insanity rests on the defence.
I do not think it can be consistent with the foregoing proposition that a judge may substitute a plea of “not guilty” in a case such as the present. What would be the consequence of his doing so? The trial would have to proceed. The prosecution would have the burden of proving every element of the case against the accused, but he would be presumed to be sane. The burden of proving the contrary would rest on the accused. He is entitled to decide whether to raise the defence. Where he decides not to raise it and the facts are proved to the satisfaction of the jury beyond reasonable doubt, he will be convicted.
I believe that an accused person, who is sane at the time he makes the plea, is entitled to choose whether to raise the defence that he was not sane at the time he committed the criminal acts with which he is charged. It is important to make this qualification. If he appears not to be fit to plead, the prosecution has the right to raise the issue, in which it appears—it is not necessary to decide that in this case—have to prove it beyond reasonable doubt. This fact is a corrective to the fear that a grossly insane person can avoid the detention that is the consequence of a finding of insanity by pleading guilty.
Before concluding, I would observe, that the Court must not, at this stage, enter into considerations of sentencing. That will be a matter for the learned judge when he comes to impose sentence. It suffices to say that the accused, whatever weight the court decides to assign to his psychiatric history, will not be treated as an insane person, but as a person who has pleaded guilty to a criminal offence.
I have read in advance the judgment delivered today by Geoghegan J and agree that the question posed in the case stated should be answered as he proposes.
JUDGMENT of Mr. Justice Kearns delivered the 6th day of April, 2006
This is a consultative case stated by His Honour Judge Kevin Haugh, S.C. when sitting as a Circuit Court judge on the Western Circuit in the County of Mayo. Since stating the case on the 31st March, 2004, Judge Haugh was elevated to the High Court and will hereinafter be referred to as Haugh J. However, both the President of the High Court and the President of the Circuit Court agreed, pursuant to s.12 of the Courts and Courts Officers Act, 2001, to request Haugh J. to sit as a Circuit Court judge for the purpose of allowing this Court to respond to the questions raised. Haugh J. agreed to do so in consequence whereof this Court thereby acquired jurisdiction to deal with the matter.
The case stated recites that, on the 1st July, 2003, the above named accused was before Castlebar Circuit Criminal Court on a count of causing serious harm, contrary to s.4(1) of the Non-Fatal Offences Against the Person Act, 1997. The particulars of the offence alleged are that the accused did on the 20th November, 2002, at Castlebar in the County of Mayo intentionally or recklessly cause serious harm to one Liam Humber.
On the 1st July, 2003, the accused pleaded guilty before His Honour Judge Harvey Kenny S.C. to the above count. The matter was then adjourned to the following term for sentence. The accused was remanded in custody from that date and remains in custody up to the present time.
The matter came up for sentence before Haugh J. in Westport, Co. Mayo on the 12th December, 2003. On that date, Detective Garda R.J. Lawlor gave evidence to the court in relation to the offence and the background circumstances.
The facts are stated as follows in the case stated:- Around 9:30am on the 20th of November, 2002, the accused attacked the victim with a knife and caused him serious injuries. The attack was an unprovoked attack in the vicinity of St. Mary’s Psychiatric Hospital in Castlebar and was witnessed by a number of individuals. The accused has a psychiatric history and was attending the hospital on the morning in question for an appointment with his psychiatrist, Dr. John Connolly. The victim was an in-patient of St. Mary’s Psychiatric Hospital. Following the stabbing, the accused went into an office in the psychiatric hospital. He told a person in the office that he had stabbed somebody and he told them where the knife was. No rational motive or discernible reason was established for the attack. The accused apparently told Dr. O’Rourke, a psychiatrist, when examined on the day of the incident, that he had heard voices telling him to “get them” and that his attack was in response to the voices.
By agreement with the prosecution, the defence submitted a medical report dated the 26th March, 2003, from Dr. Charles Smith, consultant psychiatrist in the Central Mental Hospital and a medical report from Dr. Seamus Geraghty, consultant psychiatrist, dated the 29th November, 2003, in evidence. The Book of Evidence contained a statement of intended evidence from Dr. John Connolly, consultant psychiatrist and from Dr. D. O’Rourke, consultant psychiatrist. The case stated records that Haugh J. read these medical reports and witness statements.
Having done so, Haugh J. records as follows in the case stated:-
Haugh J. continues:-
Have I the power/duty or should I decline to act on a plea of guilty if, on the evidence before me, I am satisfied that I have substantial grounds for believing that the accused was insane at the time he committed the acts alleged to constitute the offence? Should I in those circumstances decline to accept a plea of guilty, enter a plea of ‘not guilty’ on behalf of the accused and seek to ensure that the issue of his insanity is fully investigated in the course of his trial?”
It is quite clear that in the instant case Haugh J. was faced with a dilemma from the facts and more particularly from the psychiatric evidence which began to emerge in the hearing before him which suggested to him that the accused had not or could not have had the capacity to commit the crime with which he was charged. The learned Circuit Court judge was clearly conscious of the observations in the case of The People v. O’Mahony  I.R. 517 at p.523 where Finlay C.J. stated:-
In the hearing before this Court counsel for the accused accepted that a trial judge has an inherent jurisdiction to intervene to vacate a plea of guilty in certain circumstances, but submitted that those circumstances must be ‘grave and exceptional’. However, no Irish authority in support was cited nor does it appear that there is any such authority. Counsel was content to rely on the inherent jurisdiction of the court as the basis for the view offered. Counsel for the Director went further, stating that the trial judge had both the power and indeed the duty to intervene where the interests of justice and the best interests of the accused so demanded in any case or situation where it became apparent to the trial judge that there was a genuine issue as to the sanity of the accused. This, it was submitted, could arise at any stage of the trial procedure. Mr. Gaffney, counsel for the Director, argued strongly that a fair trial under Article 38 of the Constitution precluded the trial judge from accepting a guilty plea in circumstances where it was apparent that a ‘not guilty’ plea should be entered. Any other course would be tantamount to an abuse of process and contrary to the public interest, because a citizen should never be punished as a criminal where he is innocent of any crime.
The Trial of Lunatics Act, 1883, s.2(1) contains the following provision:-
Thus, a person against whom such special verdict is found can lawfully be kept in a mental hospital such as the Central Mental Hospital in Dundrum. In the ordinary course, it is in his interest and in the interest of the public that he be kept there until he is no longer at risk and the public are no longer at risk that he or the public may suffer as a result of injuries inflicted by him in consequence of his mental condition.
Where insanity is raised as a plea in bar of trial, however, the question is whether the accused is insane at the time of trial. In this regard s. 2 of the Criminal Lunatics Act 1800 provides:-
It is important to consider the implications from a citizen’s point of view of an intervention by a trial judge the effect of which is to override an ostensibly voluntary plea of guilty and to conduct instead an inquiry as to fitness to plead. To begin with, the intervention must be seen as necessarily raising for determination by a jury of the issue of fitness to plead, given that the decision of the accused can only be set aside on the basis that the accused may not have been so fit. It therefore follows that where such an intervention is made an inquiry directed to that issue must precede any other development in the case.
It must be borne in mind that an intervention to set aside the plea of an accused person has a number of very significant consequences. Firstly, such an intervention runs counter to an accused person’s right in the ordinary way to select his preferred line of defence. This seems to me to be an integral part of the right to a fair trial which is guaranteed by Article 38 of the Constitution. In this context I should say that I see nothing wrong or objectionable in a course of action whereby an accused person, adopting a pragmatic approach to an upcoming trial in consultation with his legal and medical advisers and on their advice, would weigh up the advantages of getting a reduced but finite sentence by pleading guilty instead of opting for a fully contested trial where the prosecution or the court might introduce an issue of insanity with its concomitant risk of indefinite confinement in a prison for the ‘criminally insane’ in the wake of any jury finding of insanity. This ‘balancing approach’ in most instances will be a practical, common sense course which in my opinion has much to commend it under the current legal regime and is an approach with which practitioners in this area of law will be familiar.
Secondly, it is important to bear in mind that a person found to be unfit is put in the same position as a person found ‘guilty but insane’ in that he is likely to be eligible for involuntary civil commitment to a mental hospital (See McAuley “Insanity, Psychiatry and Criminal Responsibility”, Round Hall Press 1993, p 134). That is a powerful disincentive for any accused to raise the issue of fitness as a plea in bar. Moreover in a case where the issue is raised by the judge it is far from clear where the onus of proof may lie.
Thirdly, an intervention of this nature by a judge has the potential, depending on the outcome of the inquiry, to deprive an accused who in a different case wants to plead ‘not guilty’ of the opportunity of being acquitted on foot of a substantive defence which might have been available if the trial had gone ahead.
Against this backdrop a judge would, in my view, require to be satisfied that very exceptional circumstances are demonstrated and a very high threshold met before he actively intervenes to ‘second guess’ the accused, his legal and/or medical advisers who opt to plead or conduct a defence in a particular way. As noted by Geoghegan J in his judgment herein an accused person may justifiably be extremely indignant that his decision to plead in a particular way is being superseded by an inquiry as to his sanity. In my opinion therefore, a judge should not intervene to set aside a guilty plea unless there are quite exceptional circumstances arising in the particular case.
The Case Stated has not been couched in any such extreme terms and therefore the considerations outlined above persuade me that the question raised in the Case Stated should be answered in the negative and in the manner suggested by Geoghegan J.