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A matter of interpretation

A matter of interpretation

A significant judgment for mental health law



Fundamental issues concerning the checks and balances of democracy were helpfully considered and explained in a recent judgment. Duncan Grehan enlightens us.

In a recent High Court judicial review application, an applicant sought an order of certiorari quashing an order of the Minister for Justice that had refused the applicant – an interned, sentenced, non-national who had been found to be not guilty by reason of insanity – to be transferred from the Central Mental Hospital to a mental-health institution in his homeland of Germany.

Of core concern was whether the State law had properly implemented the applicable international convention to which it is a party. The High Court judgment was electronically delivered on 11 December 2020 by Mr Justice Garrett Simons.

A matter of interpretation

A matter of interpretation

The significant judgment in S v Minister for Justice and Director of the Central Mental Hospital (Notice Party) analyses many justice and human-rights principles of international, EU and national law before concluding that the respondent minister’s refusal to warrant the transfer of the sentenced applicant (a German national) from the Central Mental Hospital to an equivalent psychiatric hospital in Germany be overruled by order of certiorari (an example of the constitutional, independent power of the judiciary to set aside an executive order).

Respectful of Judge Simon’s expertise and his order requiring the applicant’s anonymity, I shall simply recite paragraphs of his judgment, as to quote his words is much safer and more instructive than paraphrasing or commentary.

This is especially appropriate, as many of the contentious issues in the case turned on, and were decided by, identifying and applying the law on the interpretation and construction of legislative wording, such as ‘criminal responsibility’ and ‘sentence’.

The law under review required the consideration of section 5 and section 26(2) of the Interpretation Act 2005. The latter section provides: “The idea in the new enactment shall not be taken to be different merely because a different form of words is used”.

The common law considered in the hearing also included much of the leading Irish and European case law on the interpretation of legislation, as well as textbook commentaries (such as Craies on Statute Law and Maxwell on the Interpretation of Statutes) and the international principle of contra legem.

Base laws and key issues

The European Convention on Human Rights (ECHR) was the base for the first case heard by the European Court of Human Rights in Strasbourg. That case (referred to as ‘In re Lawless’, ECHR 1 Jul 1961) also concerned prisoners’ rights, and the legality of the applicant’s arrest and detention, and originated from proceedings first before the courts of Ireland.

The ECHR only became mandatory here when applying Ireland’s domestic statutory law with the ECHR Act 2003. Section 3(1) provides that “every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the convention’s provisions”. (A breach gives an individual a right to claim damages within one year.)

Our law base (as mirrored in the Constitution) and our concept of justice require respect for, and vindication of, human rights, taking account of due process, maxims like ‘justice delayed is justice denied’, personal integrity, public court hearings, privacy, and the weighing-up and scaling of any concurring and competing public and private interests.

Article 29.3 of the Constitution “accepts the generally recognised principles of international law as its rule of conduct in its relations with other States”. In Lawless, the Supreme Court held that “this refers only to the relations between States and confers no rights on individuals”.

Mindful of this, Judge Simons pointed to the “inordinate delay” in the processing of the transfer application, and he barred any reporting or broadcasting of any matter relating to the proceedings likely to identify the applicant.

The Transfer of Sentenced Persons Act 1995 (as amended in 1997) was enacted to implement the 1983 Convention on the Transfer of Sentenced Persons.

In the respondent’s submissions, it was explained: “Prior to the enactment of the Criminal Law (Insanity) Act 2006, where a person was found to have carried out the acts charged against him but to have been insane at the time, the jury were required to enter the special verdict provided for in section 2(1) of the Trial of Lunatics Act 1883. This is often referred to as the special verdict, ‘guilty but insane’.”

Such a person would then have been sentenced to custody, as per the 1883 act, as a ‘criminal lunatic’. Section 5 of the 2006 act first changed that for a newly named special verdict, to the effect that the accused person is ‘not guilty by reason of insanity’.

December judgment

In the first paragraph of his judgment in December, Judge Simons helpfully explained: “The principal question for determination in these proceedings is as follows. Can a person who is detained in the Central Mental Hospital following a special verdict of ‘not guilty by reason of insanity’ be characterised as a ‘sentenced person’ for the purposes of the Transfer of Sentenced Persons Act 1995. If the answer to this question is ‘yes’, then such a person is eligible to be transferred to another convention state in order to serve the balance of their ‘sentence’ (as defined). The applicant had been tried for an offence of dangerous driving causing death, and the jury returned a special verdict to the effect that the applicant was not guilty by reason of insanity.

“The applicant is currently detained in the Central Mental Hospital. The parties are all in agreement that it would be in the best interests of the applicant were he to be transferred to his home country of Germany. The parties are also agreed that the applicant is eligible for transfer under the terms of the Transfer of Sentenced Persons Convention itself (‘the convention’).

“The dispute between the parties centres on whether the convention has been properly implemented into domestic law. Remarkably, the Minister for Justice invites this court to adopt a restrictive approach to the interpretation of the domestic legislation, with the consequence that the applicant would be rendered ineligible for transfer. The logic of the position adopted by the minister is that, as a result of legislative amendments introduced in 2006, domestic law is no longer fully compliant with the convention.

“The minister’s submission that the domestic legislation should be given a restrictive interpretation is all the more surprising, given that the adequacy of the Irish State’s legislative regime governing the transfer of sentenced persons is to be the subject of infringement proceedings.

“More specifically, the European Commission has publicly announced its decision to refer Ireland to the European Court of Justice for failing to transpose Council Framework Decision 2008/909/JHA of 27 November 2008. The framework decision replaced the corresponding provisions of the convention with effect from 5 December 2011 insofar as transfers between member states of the European Union are concerned.”

Judge Simons continued: “The applicant had been charged with an offence of dangerous driving causing death, and was tried before a judge and jury in the Circuit Criminal Court. The jury returned a special verdict, finding the applicant not guilty by reason of insanity pursuant to section 5(1) of the Criminal Law (Insanity) Act 2006.

“Relevantly, such a special verdict entails a finding by the jury that the accused person committed the act alleged against them, but that they ought not to be held responsible for the act because they were suffering at the time from a mental disorder. Thereafter, the trial judge made a finding, in accordance with section 5(2) of the act, that the applicant was suffering from a mental disorder (as defined), and required in-patient care and treatment.

“The trial judge then made an order committing the applicant to a specified designated centre, namely the Central Mental Hospital. As required under section 13 of the act, the applicant has been subject to periodic reviews by the Mental Health (Criminal Law) Review Board. On each occasion, the review board’s decision was that the applicant still fulfilled the criteria for detention, and the board ordered that his detention continue pending further review.”

Indefinite detention

Judge Simons pointed out that, under Irish law, “the jurisdiction to commit a person who has been found ‘not guilty by reason of insanity’ to indefinite detention at the Central Mental Hospital is contingent on a jury having returned a special verdict in criminal proceedings”, and “there is an additional requirement that the trial judge be satisfied that the accused person is suffering from a mental disorder (as defined), and is in need of in-patient care or treatment”.

He further explained: “The Irish State ratified the Convention on the Transfer of Sentenced Persons on 31 July 1995. The recitals to the convention provide that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society, and that this aim can best be achieved by having them transferred to their own countries. The term ‘sentence’ is defined as follows … [it] means any punishment or measure involving deprivation of liberty ordered by a court for a limited or unlimited period of time on account of a criminal offence.

“Relevantly, the convention distinguishes between (i) the commission of a criminal offence ([that is] in the sense of the carrying out of the acts or omissions making up the offence), and (ii) the concept of criminal responsibility. This arises under article 9 in the context of the transfer of persons who, for reasons of mental condition, have been held not criminally responsible for the commission of the offence.

“The Irish State, by way of declaration, has indicated the procedure it will follow in the case of such persons: ‘In accordance with the provisions of article 9, paragraph 4, Ireland may apply the convention to persons detained in hospitals or other institutions under orders made in the course of the exercise by courts and tribunals of their criminal jurisdiction.’

“There is no doubt, therefore, that a person who has been held not criminally responsible for the commission of an offence, but is detained in an institution under an order made by a criminal court, can apply for transfer into the Irish State. It is also accepted by the minister that such a person is eligible for transfer out of the Irish State.”

‘Sentenced person’

Later in his judgment, Simons J states: “For the reasons set out under the previous heading, I have concluded that the domestic law definition of ‘sentence’ (and the cognate definition of ‘sentenced person’) can legitimately be given an interpretation which is consistent with the convention.

On this interpretation, the applicant represents a ‘sentenced person’ and is thus eligible for transfer as a matter of domestic law.

“The same result is reached by reference to the Framework Decision on the Transfer of Prisoners (Council Framework Decision 2008/909/JHA of 27 November 2008) ... Relevantly, a national court is obliged to interpret domestic law in conformity with a framework decision.

“This interpretative obligation is qualified by the contra legem rule. See Case C-105/03, Pupino (at paragraph 47), as follows: ‘the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision’.”

Decision and orders

Judge Simons found that the applicant is eligible for transfer as per the framework decision as a ‘sentenced person’, also confirmed in the European Commission handbook on such transfers, and that the High Court must interpret the 1995 act in conformity with the framework decision, which (while now the subject of the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2020) is yet to be transposed into domestic law.

And, he noted, Ireland is to be referred by the European Commission to the ECJ for the delay in effecting such transposition.

In winding up his 26-page judgement, Simons J then stated (paragraphs 76-77): “For the reasons set out herein, the minister’s decision to refuse the application for a transfer on the basis that the applicant is not a ‘sentenced person’ is erroneous in law.

“The restrictive interpretation urged upon the court by the minister would render the domestic legislation inconsistent with the requirements of both the convention and the framework decision. Such an interpretation would be contrary to the principle that the courts should endeavour, if possible, to give the domestic legislation a meaning which conforms with the Irish State’s obligations under the convention ...

“More fundamentally, it would be contrary to the interpretative obligation imposed upon a national court by EU law … The correct interpretation of the Transfer of Sentenced Persons Act 1995 is that it applies to a person, such as the applicant, who for reasons of mental condition has been held not criminally responsible for the commission of an offence.” 

Useful clarity

This judgment has usefully exposed and clarified many basic routes to justice and care for insane sentenced detainees who are not Irish nationals and need expert medical treatment in their native language and in their homelands.

It has assisted our State in its future compliance with its international and domestic law duties, and its role in safely navigating affected persons to their human-rights remedies. It has marked those routes more clearly for the private legal sector. It has lit up our laws and the applicable principles on how legislation is to be interpreted. 

Look it up

Cases:

  • In re Lawless (ECHR, 1 July 1961; application no 332/57)
  • S v Minister for Justice and Director of the Central Mental Hospital (Notice Party) [2020] IEHC 632; 2020 No 462 JR

Legislation:

Read and print a PDF of this article here.

Duncan Grehan is a solicitor and member of the Law Society’s EU and International Affairs Committee