BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- O Driscoll [2003] JRC 117 (09 July 2003) URL: http://www.bailii.org/je/cases/UR/2003/2003_117.html Cite as: [2003] JRC 117 |
||
[New search] [Help]
[2003]JRC117
Royal Court
(Samedi Division)
9TH July, 2003
|
Before: |
Sir Philip Bailhache, Bailiff |
|
Between |
Attorney General |
Plaintiff |
|
|
|
|
|
|
|
|
|
And |
Neil Liam O'Driscoll |
Defendant |
|
|
|
|
The meaning of the phrase 'so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial' in Article 1(1) of the Criminal Justice (Insane Persons) (Jersey) Law 1964.
Advocate C M Fogarty for the Attorney General
Advocate P D James for the Defendant
judgment
the bailiff:
Introduction
1. This is an application seeking a ruling as to how the Jurats should be directed on the meaning of the phrase 'so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial' in article 1(1) of the Criminal Justice (Insane Persons) (Jersey) Law 1964 ('the 1964 Law').
2. Article 1 of the 1964 Law is in the following terms -
3. The question arises in the context of a charge of grave and criminal assault. The accused, Neil Liam O'Driscoll, is charged with having committed a grave and criminal assault upon his mother, who is aged sixty-three, at her home on 28th August 2002. The alleged assault took place at about 1.30 am. The accused is said to have punched his mother to the ground and stamped on her head and thigh whilst wearing heavy boots or shoes. The victim started to bleed and the accused discontinued the attack. As a result, the victim is said to have fled in terror from the house, scaling a fence in order to make good her escape. She was subsequently admitted to hospital where she remained for several days for investigation of her head injuries. Fortunately it transpires that she suffered no serious injury.
4. The procedural history of this matter is set out in a judgment delivered by the Court on 2nd June 2003 in relation to an appeal by the Attorney General by case stated from a decision of the magistrate. It is unnecessary to repeat that history here. Suffice it to say that the Magistrate responded with commendable alacrity to the decision of 2nd June, and on 3rd June committed the accused for trial by this Court. The indictment was laid before the Court on 13th June and, the issue having been raised as to his fitness to plead, the case was adjourned for submissions as to the meaning in Jersey law of the phrase in article 1(1) of the 1964 Law referred to in paragraph 1 above. In due course the accused will be remanded to the Superior Number to try the question whether or not he is so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial. He is at present receiving in-patient treatment at St Saviour's Hospital.
5. What then is the test that the Superior Number should apply? I am informed by counsel that their trawl of the authorities has unearthed no previous case where the phrase in question has been the subject of argument before the Court. The point therefore appears to be open and I have been asked by counsel for the Crown, with the support of counsel for the accused, to develop the law following the decision of the Court in .
English Law
6. The test of insanity so as to found unfitness to plead in England was laid down as long ago as 1836. In , a case involving a deaf-mute Alderson B directed the jury:
7. This test has been applied by English Courts in numerous subsequent cases. In , the appellant appealed to the English Court of Appeal against a finding by a jury that he was unfit to plead to a charge of murder. One of the questions was whether the jury's attention had been directed to matters which did not form the test of disability. Evidence had been given that the appellant suffered from delusions and had a persecution mania. Parker L C J stated -
8. The Court, applying , allowed the appeal holding that the mere fact that the accused was incapable of doing things which were in his best interests was insufficient to justify a finding of disability.
9. More recently, in Otton L J summarised the requirements for a finding of unfitness to plead in the following terms -
It may be noted that, although the test has been applied in such a way as to focus upon the intellectual or cognitive capacities of the accused at the time of the trial, Otton L J employed the adverb 'rationally' in the context of the accused's ability to reply to the indictment.
10. The Crown placed before me a report of Professor R D Mackay, upon which Miss Fogarty relied. Professor Mackay had been asked by counsel to advise (1) whether the test of unfitness to plead accepted by English law was open to challenge under the Human Rights Act 1998 and (2) if so, how the test could be altered to comply with the European Convention on Human Rights. I have derived a great deal of assistance from the opinion of Professor Mackay, but it does not seem to me necessary or indeed appropriate to adjudicate upon either of those specific issues. It might be necessary if I were minded to adopt as part of the law of Jersey the English test set out in But as I propose, for reasons that will appear below, to adopt a different test, such adjudication would be otiose and, I think, unseemly. It is for English Courts to determine whether the test is compatible with the Human Rights Act 1998.
Authorities in Jersey and Guernsey
11. There does appear to be no local authority directly in point as to the meaning of the word 'insane' in the context of article 1 of the 1964 Law or indeed generally. It is clear, of course, that this Court has, for a long time before the enactment of the 1964 Law, declined to try persons who were regarded as insane at the time of trial. When examined before the Royal Commissioners enquiring into the state of the criminal law in 1846, R P Marett (later Sir Robert Marett, Bailiff) stated that a plea of insanity would be tried by a jury. He referred the Commissioners to commentators on the Ancien Coûtume which suggested that a person found to be insane at trial would be remanded in prison or subjected to some other restraint. The practice at that time (1846) was that prisoner would generally be given into the custody of a curator who would have the duty to guard him and to care for him. Mr Marett expounded no test for unfitness to plead.
12. John Hammond (later to serve as Bailiff) agreed (at page 84) that -
13. Significantly, in my judgment, no witness appearing before the Royal Commissioners testified that English law, or the test laid down in would be applied.
14. The position was different in Guernsey. In their enquiry into the state of the criminal law in that Bailiwick in 1847-8, the Royal Commissioners received evidence from the Bailiff, Mr Peter Carey, who stated -
The Commissioners recorded that the Bailiff was 'an English lawyer of experience' to whom they were 'greatly indebted ..... for his most valuable information and assistance in the progress of this inquiry'. He was clearly, therefore, a witness who spoke with authority. That difference of approach has continued down the years. As Sir de Vic Carey, Bailiff, stated in the Royal Court of Guernsey in an interlocutory judgment in -
15. For my part, I do not find it in the least surprising that in this area of the criminal law, the Royal Court of Guernsey has adopted a different approach from that of this Court. As one who has had the privilege of sitting as a judge of the Court of Appeal of Guernsey for many years, I have often noted that, notwithstanding their common roots in the customary law of Normandy, the Jersey and Guernsey plants have frequently surfaced in different parts of the garden of jurisprudence. One should be no more surprised that Jersey and Guernsey law have developed in different ways in relation to the insanity defence than that different approaches are evident on either side of the River Tweed.
16. I must therefore very respectfully differ from a passing observation of Vaughan J A in at 21 that it is 'highly undesirable that the effect of 'insanity' should be different in the two jurisdictions' if that observation were intended to imply that one of the two should be compelled to adopt the law of the other.
Scots Law
17. In truth it is clear that, for better or for worse, the different jurisdictions of the British Isles have all beaten slightly different paths in the context of the insanity defence and unfitness to plead, except perhaps that Guernsey has chosen to adopt the law of England. The McNaghten rules are not part of the law of Scotland and the broad definition of the insanity defence in Scots law has avoided much of the controversy which has dogged the defence in England. The law on unfitness to plead, or on insanity as a plea in bar of trial, as the Scots would express it, is said to be defined in the two leading Scots cases of , and and not in the English case of . A study of the reports of the English Law Commission (Law com no. 231): Mental Incapacity (1995) and the Scottish Law Commission (discussion paper No.122) Insanity and Diminished Responsibility (January 2003) does not leave me with the impression that a unified or co-ordinated British approach to these problems is in prospect.
Proposals for reform in England and Scotland
18. The reports of the two Law Commissions and other academic writing do seem to me, however, unsurprisingly no doubt, to have common threads. One such thread is the notion that the test for incapacity should underline the requirement for rational decision-making. The report of the English Law Commission, referred to above, states at paragraph 3.14 -
The Commission explains this by stating that -
19. This notion is developed in an interesting and helpful passage in the report of the Scottish Law Commission -
20. The European Convention on Human Rights applies to Jersey, although the Human Rights (Jersey) Law 2000 is not yet in force. The first convention issue concerns article 5. In the Court, in considering the insanity defence as opposed to the question of fitness to plead, considered the implications of article 5(1) of the Convention which provides, so far as material,
21. The disposal consequences of a finding of insanity, as of a finding of unfitness to plead, are a matter of concern in the light of the Convention and of the terms of the 1964 Law. Article 1(3) of the 1964 Law provides, as noted above, that if a finding of insanity under Article 1(1) is made,
22. While the provision is not mandatory (even where the charge is murder) it remains possible that a person might find himself detained in a secure mental hospital where there are no medical grounds for such detention. I revert to this below.
23. The second convention issue concerns the implications of article 6 which requires a fair hearing in respect of a criminal charge and which prescribes certain minimum rights for an accused person. It is unnecessary for me to delve too deeply into this issue. I find myself in agreement with the conclusion of the Scottish Law Commission, set out above, that -
In my view the test which I formulate below will conform with the requirements of article 6 of the Convention.
24. The Scottish Law Commission proposes a test for unfitness to plead, or 'disability in bar of trial' as they would express it, in the following terms -
25. Professor R D Mackay, upon whose opinion counsel for the Crown has relied, has recommended the following test -
"A defendant will be found so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial in accordance with article 1(1) of the Criminal Justice (Insane Persons) (Jersey) Law 1964, if the Superior Number of the Royal Court is not satisfied that the accused (1) has the capacity to assist his lawyer and (2) has decisional competence.
In determining this issue the Superior Court shall have regard to whether as a result of unsoundness of mind or inability to communicate the defendant lacks the capacity to:
(a) understand the course of the proceedings so as to make a proper defence;
understand the substance of the evidence;
(b) give rational instructions to his lawyers;
(c) give evidence on his own behalf;
(d) make rational decisions in relation to his participation in the trial process, including whether or not to plead guilty, which reflect true and informed choices on his part."
Conclusion
26. In determining how the Jurats should be directed, I am conscious that I am, in a sense, making new law. Judges have a duty, however, to fill in the interstices of legal rules and should not shirk that duty when the interests of justice so require. The law will not tolerate a vacuum. Not withstanding this ruling, however, the 1964 Law cries out for reform. I make certain recommendations below and it will, of course, be open to the legislature to re-formulate the test for unfitness to plead should it be thought that it is for any reason inappropriate.
27. It is true that in many respects the criminal law of Jersey tends to follow the law of England rather than the law of any other jurisdiction. The criminal law has, however, been expounded and developed independently by judicial decision in numerous different ways; see eg (where the offence of committing a public mischief was given its quietus) and (where the law of fraud was re-formulated). I am reluctant to adopt a test laid down in England more than one hundred and sixty years ago, when it is open to me to follow a new road which has been essentially engineered by the intellectual efforts of many specialists in this field. Social conditions have changed, and the importance of protecting the human rights and dignity of those afflicted by mental or physical incapacity is nowadays more widely appreciated. In my judgment I should adopt a test which is consonant with the European Convention on Human Rights, conscious of developments in medical science in the last one hundred years or more, and appropriate to the social needs of this jurisdiction in the twenty-first century. I propose to formulate a test which draws on elements of both suggested tests that have been placed before me.
28. It seems to me desirable to pay particular regard to the jurisprudence of the European Court of Human Rights. The States have adopted the Human Rights (Jersey) Law 2000 which will, when in force, incorporate certain Convention rights into domestic law. The capacity to participate effectively in the criminal process has been seen to be the key factor in that European jurisprudence. I propose to adopt that factor as the central theme of the test to be applied.
29. I propose therefore to direct the Jurats that -
'An accused person is so insane as to be unfit to plead to the accusation, or unable to understand the nature of the trial if, as a result of unsoundness of mind or inability to communicate, he or she lacks the capacity to participate effectively in the proceedings.
In determining this issue, the Superior Number shall have regard to the ability of the accused -
(a) to understand the nature of the proceedings so as to instruct his lawyer and to make a proper defence;
(b) to understand the substance of the evidence;
(c) to give evidence on his own behalf;
(d) to make rational decisions in relation to his participation in the proceedings, (including whether or not to plead guilty), which reflect true and informed choices on his part.'
A number of points arise from that test. First, the presumption of sanity remains. If an issue as to unfitness to plead is raised by the defence, the burden is on the defence to satisfy the Superior Number on a balance of probabilities that the accused does not have the capacity to participate effectively in the proceedings. If the issue of unfitness to plead is raised by the Crown, the burden is on the Crown to satisfy the Superior Number beyond reasonable doubt. I am conscious that these rather bald statements do not address serious issues as to whether the burden is a legal or an evidential burden, nor the appropriate standard if the matter is initially raised by the Court. However, I have heard no argument on these issues and they may be left over for another day. The above statements as to where the burden lies and what is the relevant standard appear to be in conformity with the position at English law; see
31. Secondly, I have included the words 'inability to communicate' to cater for situations where, for example, an accused is in a coma, or has had a stroke, and there may be some doubt as to whether he cannot participate effectively in the proceedings on account of unsoundness of mind, but no doubt that he cannot participate because he is unable to communicate. was of course itself a case involving a deaf-mute.
32. Thirdly, it will not be sufficient in itself to justify a finding of unfitness to plead that an accused person is someone of limited intellect or someone who, for other reasons, might find the criminal process puzzling or difficult to follow. I envisage that some evidence of a clinically-recognised condition leading to incapacity would be required before a finding of unfitness could be made. In this connection it is worth underlining an important distinction between the process of adjudicating on unfitness to plead in Jersey and in other parts of the British Isles. In Jersey the duty of adjudication is placed not on a jury, but on the Jurats who are a mature and experienced body of judges upon whom considerable reliance to arrive at a considered and reasonable conclusion can be placed.
33. I turn finally to the desirability of reforming the 1964 Law. The submissions by both counsel have left me in no doubt that the 1964 Law is in urgent need of reform. First and foremost, the limited powers of disposal available to the Royal Court should be expanded in order to enable justice to be done to those who might be able, on the basis of the above test, to establish unfitness to plead. Legislation on the lines of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 would empower the Court to make orders currently available to English Courts. Secondly, it is for consideration whether it is any longer appropriate to vest responsibility for the treatment of mentally disordered persons in Jersey in the Secretary of State. Thirdly, the title of the 1964 Law and the references therein to 'insane persons' might be thought to carry a stigma which is inappropriate in the context of those suffering from mental illness. I express the hope that the Attorney General might bring this judgment to the attention of the appropriate committee of the States of Jersey so that consideration might be given to the reform of the 1964 Law.
