Mental Health, Criminal Law and Risk of Harm

Dr Darius Whelan, Senior Lecturer, School of Law, U.C.C., and author of Mental Health Law: Civil and Criminal aspects (Roundhall: 2009). (This blog was originally posted on:  http://irishlawblog.blogspot.ie/2014/12/mental-health-criminal-law-and-risk-of.html )

CMH DublinCentral Mental Hospital, Dublin

The recent tragic case of stabbings in Cobh, Co. Cork, highlights the treatment of those with mental health issues by the criminal justice system. This is a complex area and further details may be found in some of the source materials referred to at the end of this blog post. The Criminal Law (Insanity) Act 2006 introduced major changes in Irish law concerning mental health  and criminal law.  For example, it changed the verdict in some of these cases from ‘guilty but insane’ to ‘not guilty by reason of insanity’.  In order for such a verdict to be reached, the Act requires the following:

(a) the accused person was suffering at the time from a mental disorder, and
(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—

(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or
(iii) was unable to refrain from committing the act,
the court or the jury, as the case may be, shall return a special verdict to the effect that    the accused person is not guilty by reason of insanity.

According to media reports in this case, it appears that such a verdict was returned regarding this individual (Mr Michael Greaney) in 2013. Under the 2006 Act, if such a verdict is returned, the judge does not automatically send the person for mental health treatment.  Instead, the person may be sent to the Central Mental Hospital (CMH) for assessment to see if the person requires treatment.  The emphasis switches at this stage from the person’s mental health on the day of the act to their health at the time of assessment.  A person’s mental health may fluctuate enormously from month to month (or even from day to day).

Depending on the assessment, the judge can then either order that the person be detained in the Central Mental Hospital or discharged.  In this case, it appears that the judge ordered that the person be discharged, on condition that he live away from the family home.  That condition was later lifted by the court.

If the judge ordered that the person be detained at the Central Mental Hospital, the question of the person’s release would be in the hands of the independent Mental Health (Criminal Law) Review Board.  This board has 4 members (listed here) and usually 3 members sit on a hearing to review a particular case. There are approximately 110 hearings per year.  Each case is reviewed every six months and the person will be represented by a solicitor.  A person could also be temporarily released by the CMH under s.14 of the 2006 Act (which does not require approval by the Review Board).

A decision made by a judge to release a person (or to put it another way, not to order that they be treated in the CMH) would be made based on psychiatric evidence of the risk they pose at the time of the assessment.  Assessment of risk is a difficult matter and it is impossible to predict risk of harm with high levels of accuracy.  As a society, it is important that we strike a fair balance between detaining those who may pose a risk to the community and recognising that a person with significant mental health issues may not have been criminally responsible for their actions. The current law attempts to strike that balance as best it can, with advice from medical experts.  This law is in fact of need of reform to strengthen the rights of the individuals concerned, e.g. there is a need for more frequent reviews of detention by the Review Board as the cases of those detained under the civil legislation – the Mental Health Act 2001 – are reviewed more frequently. The law also urgently needs to be changed to remove the “insanity” label from such individuals, a label which is entirely inappropriate and anachronistic.

Source Materials

Barry Roche – Irish Times coverage

Muiris Houston in Irish Times

Ralph Rigel – Irish Independent coverage 

Irish Examiner coverage

T.J. McIntyre, Sinead McMullan & Seán Ó Toghda, Criminal Law, 3rd ed. (Dublin: Round Hall, 2012)

Darius Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Dublin: Round Hall, 2009)

Liz Campbell, Shane Kilcommins & Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Dublin: Clarus Press, 2010)

Darius Whelan, annotations of Criminal Law (Insanity) Act 2006 and 2010, available in Westlaw IE database

Citizens’ Information – Criminal Insanity and Mental Health

Website of Mental Health (Criminal Law) Review Board

Full text of Criminal Law Insanity (Act) 2006 as amended by Criminal Law (Insanity) Act 2010

Darius Whelan, slides on Criminal Law (Insanity) legislation

Mental Health Commission, Forensic Mental Health Services for Adults in Ireland, Position Paper, 2011

Mental Health Reform submission
Louise Kennefick blogpost on Human Rights in Ireland

The impact of imprisonment beyond the offender

Dr. Aisling Parkes & Dr. Fiona Donson

A shorter version of this article was published in the Irish Examiner, 9th July 2013 http://www.irishexaminer.com/analysis/the-impact-of-imprisonment-beyond-the-offender-236287.html#.UduyxP1SCM8.twitter

The release last month of the Law Reform Commission Report on Mandatory Sentences has provided an opportunity to reflect in an informed way on the approach taken in our jurisdiction to sentencing in the Irish criminal courts. In addition, the controversial sentencing judgment delivered by Mr Justice Sheehan in the case of a man convicted of raping his then 14 year old sister-in-law 27 years ago highlights the serious difficulties involved in balancing the range of competing rights and interests in the sentencing process. In particular, the often unseen tensions between victims and the family of offenders are laid bare providing an extremely challenging sentencing decision. Significantly such challenges are a common feature in cases where prison sentences are imposed, yet in the majority of cases in this jurisdiction they are rarely even acknowledged let alone considered explicitly by the sentencing judge.
Sentencing in Ireland has historically been regarded as being within the sole discretion of the court. Indeed to date, there has been considerable resistance by the judiciary to even the most modest of sentencing guidelines. However, this long established position is now under pressure as a variety of reports over the past decade have recommended the adoption of a more guided approach to sentencing. The Law Reform Commission Report on Mandatory Sentencing published last month notes generally that there is no agreement on the aims and principles framing our sentencing process and an “absence of anything remotely approximating to a consensus on who should be sent to prison and why they should be sent there.” Unsurprisingly, therefore the report recommends the development and implementation of appropriate sentencing guidelines.
Generally, when an offender is sentenced, a court can take a variety of matters into consideration. These will include the type of offence committed and any aggravating and mitigating factors. It may also have regard to the accused’s criminal record, the views of the victim, and wider social and policy issues. However, the extent to which incarceration will impact on the defendant’s family and in particular, their children, receives little attention beyond its possible inclusion as a mitigating factor. This is despite the fact that under Article 3 of the UN Convention on the Rights of the Child 1989, to which Ireland is a party since 1992, require that if a decision concerning the child’s primary caregiver is being taken by a court, the best interests of the child need to be balanced against any other relevant factors.
In recent years, the impact of a sentence on the children of an offender as a consideration to be included in the sentencing process has been recognised in a number of jurisdictions, for example in England and Wales. Perhaps the best-known example derives from the landmark decision of the South African Constitutional Court, S v M (2007). This case concerned the conviction of a single mother in whose case the court held that the best interests of children should be considered alongside other elements in the sentencing process. Albie Sachs J. noted the need for a “change in mindset” when dealing with cases where children are affected by the sentencing of a parent. This requires an acknowledgment that while a prison sentence is imposed as punishment for a crime, imprisonment has an impact beyond the offender. This does not mean parents are not sent to prison where such a sentence is appropriate, but rather that the full impact is understood and alternative punishments considered where the rights of children are engaged.
It would appear that the approach of Mr. Justice Sheehan in the Counihan case a few weeks ago included elements which are consistent with the approach adopted in South Africa, given the fact that the Judge took into consideration the hardship likely to be suffered by the defendant’s three children. Evidence of the negative impact of the offender’s imprisonment pending sentence on one of his autistic children was presented indicating the harm that an extended prison sentence would do to the family in the long term. The judge noted that despite the seriousness of the offences and the harm done to the victim, he ultimately concluded that imprisonment would “impose extreme hardship” on the offenders family “particularly on his partner and his son.”
However, it is clear the High Court considered the impact of the sentence on the offenders children as a mitigating factor, something “belonging to the offender”, whereas the S v M approach requires a balancing of competing interests including the best interests of any children to be affected by the imprisonment of a parent. This approach firstly requires that the court be appraised in each case before it of the potential impact of imprisonment on children and families, often termed a family impact statement. This factor must, however, be balanced – considering the impact of a prison sentence on the family of an offender does not mean that s/he should not be imprisoned where a prison sentence is ultimately the appropriate sanction for the crime committed. What it does mean is that on a systematic basis the sentencing court should (1) ascertain whether a convicted person is a primary caregiver, (2) if a custodial sentence is being considered the court should have regard to the possible impact it would have on the children, (3) if a custodial sentence is appropriate and the convicted person is a primary caregiver, the court must, in the words used in S v M “apply its mind to whether it is necessary to take steps to ensure that the children will be adequately cared for while the caregiver is incarcerated”, and (4) when deciding between a range of possible sentences, the court should be guided by the best interests of the child in deciding which sentence to impose.
The suspended sentence imposed by the court has been greeted, unsurprisingly, with shock by victims support groups. Their concerns reflect not only the significant harm sexual offences inflict on victims but also the on-going failure of the criminal justice system to adequately prosecute such offences. While the final decision in Counihan has left many questioning whether or not justice prevailed in that case, the decision making process engaged in by the Judge is one to be commended. However, the tension between victim and offenders families adversely affected by a sentencing decision can be difficult to resolve, particularly in a system like ours where there are few alternatives to prison, but it should not continue to be ignored as is the current practice. If, as the LRC recommends, clear sentencing guidance is adopted in our jurisdiction it should include a process whereby the impact of a sentence upon the children and families of offenders are taken into consideration on a systematic basis alongside the interests of the victim.

Lillis sentenced to 6 years 11 months in prison

Today Eamonn Lillis was sentenced in the Central Criminal Court to 7 years (reduced by 1 month to account for time already served) for the manslaughter of his wife Celine Cawley.

The decision of Mr Justice Barry White was based on a position that the appropriate sentence, without any mitigating factors, for the offence would be 10 years. In coming to this conclusion he had considered the prison sentences handed down in the Wayne O’Donoghue (4 years) and Linda Mulhall (15 years) cases particularly with regard to the coverup.

Mitigating factors in this case included the previous good character of Eamonn Lillis, the evidence this was out of character and his call to the emergency services and attempt to resuscitate his wife. Mr Justice Whyte however, noted on this point “That is the only decent act you committed on that morning.” given he then went on to systematically lie about the events of that morning and blame someone else for the attack. Other negative elements were the time he took to cover up the fight was the effect of the crime on the family members, including of course his own daughter. The lack of clear remorse for what had happened, a lack of an offer of a plea to manslaughter were particularly notable:

“Your expression of remorse rings hollow to me and I consider it to be self-serving in light of the circumstances of the case.”

The sentence is at the upper end for a manslaughter case.

Mr Justice Whyte went on to strongly criticise the media for their coverage of the case. He said the media media’s behaviour had been “an affront to human dignity” and called for their privacy to be respected. It is clear that whilst the media serve an important role in ensuring that justice is carried out in public, that does not mean that media has a right to invade the privacy of participants in a trial.

Previously the Court of Appeal has criticised the photographing of the accused in the case of DPP v Davis in 2002. Indeed, the Supreme Court in Re R. Ltd [1989] IR 126 ruled that “the administration of justice in public [simply] require[s] that the doors of the court must be open so that members of the general public may come and see for themselves that justice is done.” Any claim therefore by the media that they are acting as the guardians of justice by staking out the home of Eamonn Lillis, or by following him and his daughter on a trip into Dublin, would clearly not meet the court’s view of what is protected in a case like this.

An appeal in the case is expected based in relation to the sentence imposed and possibly in relation to the Judges summing up to the jury.

Prison populations and sentencing reform

In the news yesterday – the prison population had passed the 4000 mark for the first time the history of the State. In fact it has since dropped back down below that dramatic figure but remains above the bed capacity level of 3,947. The Irish Penal Reform Trust‘s press release on this news valuably highlights the figures charting the steady rise in the prison population:

To place this level of imprisonment in context, the Irish prison population was just 750 in 1970; over 1,200 in 1980; 2,100 in 1990; 2,948 in 2000. The immediate consequence of this increase is to exacerbate an already critical overcrowding situation.

These figures need to be seen in the light of the report on Mountjoy Prison by Judge Michael Reilly, the inspector of prisons. His report was brought forward because of concerns about the dangers created by cronic overcrowding, not least of those being the fact that lives were being put at risk.

Overcrowding in Irish prisons has been described as cronic and acute for many years now, yet little signioficant action has been taken. And prison expansion is not the answer.

The short term answer is clearly put in the IPRT Directors Blog:

The Prison Service must set clear safe custody limits in each of the prisons and ensure that dangerous overcrowding levels are not allowed to develop. In the short term, numbers can be reduced by careful and structured use of temporary release.

But longer term, the issue is about sentencing. Indeed, Fine Gael yesterday called for “a radical overhaul of the State’s sentencing system”:

“I am calling on Minister Ahern to radically overhaul his approach to incarceration and to focus on community service for minor offences. With each prison place now costing almost €100,000 annually, the Minister must review the benefit of handing down thousands of minor sentences annually.”

According to Fine Gael the govenment needs to consider alternatives to custody, particularly in the case of non-violent offences on the basis that community service “is less expensive for the taxpayer and allows offenders to put something back into the community”.

It is good to see that in addition to proposing sentencing reform, Fine Gael have also now recognised that prison does not work:

“It is clear that prison in Ireland is enormously expensive and has little deterrent or rehabilitative value. Its effectiveness is further undermined by the use of early release as a means of facilitating the committal of ever more prisoners. Ireland has a revolving door prison system that sees almost 50 per cent of prisoners back inside within four years of their release. This is not sustainable…”

Ultimnately any discussion on the state of Ireland’s prison system must be done within the overall context of sentencing and criminalisation. The prison population has been rising for many reasons, not least of which is an iuncrease in a refusal of bail, an increase in lengths of sentence and increased levels of prosecution.

What role deterrence as a factor in imposing imprisonment?

The following is a discussion of two cases decided in June 2009 that consider the role of deterrence in imposing prison sentences. The material was first published in the June Edition of Firstlaw‘s Criminal Law Online Service.

In the first, the High Court noted the lack of deterrence value in imposing imprisonment on those who are unable to pay a civil debt. In the second, the Central Criminal Court signalled its willingness to sentence company directors to prison for price fixing under the Competition Acts having regard to the demonstrable inadequacy of other deterrence measures.

The recent High Court judgment in the case of McCann v Judge of Monaghan District Court and others placed the spotlight on the use of imprisonment for people who are unable to pay their debts. The case involved a mother two who had borrowed money from her local credit union and had been subject in 2005 to a District Court order jailing her for the non-payment of the debt.

Ms McCann challenged section 6 of the Enforcement of Court Orders Act 1940 (1940 Act) claiming a breach of rights under both the Constitution (including the applicant’s right to fair and just procedures under Articles 34, 40.3 and 40.4) and the European Convention on Human Rights (Article 6). The High Court found that the use of imprisonment in this type of situation breached Ms McCann’s rights to fair procedures and personal liberty under the Constitution and therefore found that the District Court had no jurisdiction to make an order to jail her. No judgment was made on the rights claimed under the ECHR.

Echoing the claims of many human rights organisations, particularly FLAC who have long campaigned on this issue, Ms Justice Laffoy concluded that imprisoning someone because of their inability to pay their debts was both “futile in terms of securing a remedy” but also “imposed unnecessary expense on both the creditor and the state.” She also noted that both the state and the Credit Union had been agreeable to the order for imprisonment being quashed, and as a result she found it strange that the State should “countenance continuation” of a “vague scheme of enforcement of debt” that gave no guidance to any party involved. A FLAC report on this issue stated in 2003 “[a]part from the moral considerations … imprisonment does not make economic sense. Not only does the debt remain to be paid when the debtor is released from prison… but the cost to the State far outweighs any possible benefit that might result.” These costs are considerable – in 2008 276 people were jailed for failing to repay loans, a 37% increase 2007 cases, in total 1,138 people were imprisoned between May 2003 and July 2008.
The judgment has been welcomed by virtually everyone and in response the government has taken quick action in drafting the Enforcement of Court Orders (Amendment) Bill 2009. The proposed Bill will amend Sections 6 and 8 of the 1940 Act. It addresses the flaw in the current law that meant that if a debtor failed to appear in court for a Committal Order they could immediately be subject to that Order without any need to bring them before the court to give their side of the case. The amendment will allow for a summons to be issued in such a situation and if the debtor still fails to appear, a warrant will be issued to arrest them to bring them before the court. The impact of this change will be to ensure a hearing for the debtor and allow the court to ask the question as to whether s/he has wilfully refused to pay. It will also allow the court to make sure that all other possible steps have been taken to recover the debt. Imprisonment should therefore only be used where the debtor has the means to pay and refuses to do so.

It is expected that the Bill will complete its passage through the Oireachtas before the summer recess. Quick action to clear up the legal position is needed as the impact of the McCann judgment has already been felt in the courts. The District Court has been refusing applications to imprison people for non-payment in light of the case. For example, in the Mullingar District Court Mr. Justice Neilan questioned whether it was worthwhile even making instalment orders because of a concern as to how they could be enforced and he questioned the value of using civil processes if “the engine that brings about its effectiveness is being dismantled”. In the meantime, the Courts Service has now confirmed that it has written to each chief district court clerk confirming that no further committal warrants should be issued under section 6 of the 1940 Act.

The McCann judgment is important as it reaffirms the basic principle that prison should only be used as the punishment of last resort under our criminal justice system and should be reserved for people found guilty of committing the most serious crimes. The second case for consideration is DPP v Duffy [2009] IEHC 208, which involved charges brought against a number of individuals and Citroën dealerships following allegations of price fixing, and it indicates a growing awareness that white collar crime is serious and the real risk of imprisonment an effective means of deterring it. Company Director Mr Duffy pleaded guilty to two counts of authorising his company to enter into and implement an agreement which was designed to interfere with competition in the trade of Citroen motor vehicles between 1997 and 2002, contrary to the Competition Act 1991 and the Competition (Amendment) Act 1996. He also pleaded guilty to two similar counts, on behalf of the company. Mr Duffy was sentenced to six months in relation to “entering into” the price fixing cartel and nine months for implementing it; these sentences were suspended. He was also fined €100,000.

Although Mr. Duffy was not himself imprisoned, what is particularly interesting about this case are the comments of Mr. Justice McKechnie regarding the effectiveness of sanctions for price-fixing offences in breach of the Competition Acts. Referring to the previous case of DPP v Manning (Unreported, High Court, 9th February 2007) that he also presided over, Justice McKechnie noted that he had emphasised in that judgment the particularly serious nature of this type of offence describing it as “a crime against all consumers”. At that time he had warned that “the only real and effective deterrent for those involved in this type of unlawful behaviour might have to include a prison sentence.” He had also warned “that, because of the activity’s harmful effects on the public, those involved would have to take note that any lead in period for leniency could not be prolonged.” Thus in Duffy Justice McKechnie concludes that “fines, unless severe and severely impacting, are not a sufficient deterrent” and that the use of an un-suspende
d prison sentence in such cases “was close at hand.” Whilst to date the courts had been willing to impose fines and suspended sentences on Company Directors this judgment highlights the degree of frustration now felt by the courts. As a result it would appear that the courts are indicating their willingness to get tougher and ultimately imprison company directors in relation price fixing offences under the Competition Acts. While there is no fear of Irish courts ever imposing 150 year sentences as in the Madoff case in the US, this clear warning to company directors that white collar crime is serious crime is long overdue and welcome.

Supreme Court Decision on Sentencing in Rape Cases

RTE News reports that the Supreme Court this morning held that a life sentence can be imposed as a result of rape, even where the accused has pleaded guilty. On two levels this decision is particularly significant.

First of all it is significant in terms of the recognition of the seriousness of rape as a criminal offence and the sentence imposed as a result. The Central Criminal Court has frequently advocated apparently lenient sentences in rape cases in the past, thus the court’s decision to uphold the life sentence imposed on the appellants in this case is particularly noteworthy, although the court does appear to have stressed the particular nature of the circumstances in this case in reaching this decision. ). The appellants in this case had been found guilty of multiple charges of rape perpetrated against their children and, in one of the cases, against his nieces. According to the BBC, Kearns J. held that “[i]t is impossible to conceive of a greater breach of parental responsibility than occurred in these cases”.

On the second level the decision is important because of Kearns J.’s decision that a guilty plea does not necessarily result in a reduced sentence. The so called ‘guilty plea discount’ has long been an accepted element of sentencing policy and law, but has at the same time been subject to some fairly rigorous criticism. While Kearns J. – delivering a unanimous judgment of the Court – held that a guilty plea would be a mitigating factor, this did not necessarily mean that a guilty plea would save one from the maximum sentence (i.e. life imprisonment.

The judgment is not yet up on the Courts Service website.