A taskforce has recommended tightening the three-part test needed to find a defendant not guilty by reason of insanity.
The recommendation was made in a report by the High Level Taskforce set up to consider the mental health and addiction challenges of people who come into contact with the criminal justice sector.
The taskforce published a 231-page report containing a series of recommendations on how public bodies and services can ensure the critical mental health needs for people in prison are met and how addiction services are rolled out across Ireland’s prisons.
Among its recommendations is the narrowing of the ingredients needed to find a person not guilty by reason of insanity.
📒 @HMcEntee & @DonnellyStephen publish final report of the High Level Taskforce to consider the mental health and addiction challenges of those who come into contact with the criminal justice sector.
For more info see belowhttps://t.co/RNNVSBoRPT pic.twitter.com/kFyfgLqDMkAdvertisement— Department of Justice 🇮🇪 (@DeptJusticeIRL) September 30, 2022
A person will be considered legally insane if they were suffering from a mental disorder at the time of the offence and, as a result, did not understand what he or she was doing; did not know what he or she was doing was wrong; or was unable to not commit the crime.
The report said the legally required diagnostic step should be preserved, however the three-part test of insanity should be narrowed as the capacities referred to are “not mutually exclusive”.
It added: “The preservation of any one of them should carry with it preserved some degree of responsibility.
“The complete negation of responsibility leading to a verdict of not guilty by reason of insanity (NGRI) should have a high threshold.
“To be found NGRI should require the presence of mental disorder and all three conditional tests.
“Those meeting a lesser standard should instead be considered under diminished responsibility.
“In addition, the term ‘unable to refrain from committing the act’ is difficult to interpret clinically and should be abolished.”
While the not guilty by reason of insanity plea is rarely used in Irish courts, it has been seen in a number of recent high-profile cases.
The report also recommends that the diminished responsibility defence should be made much more accessible in relation to all indictable offences tried in the Circuit Court.
“It should never be available for offences that are acquisitive or related to fraud or deception,” it added.
The report contains a number of key actions to be implemented over the coming years.
This includes the training of gardaí in mental health and addiction awareness when dealing with offenders.
It also includes the implementation of a prosecution avoidance policy when garda members come in contact with adults with mental illness and addiction, through the adult caution scheme.
It recommends the establishment of a pilot specialist dual diagnosis service to support prisoners with a mental health condition and substance misuse in prison, to inform rollout across the entire prison estate.
It further stated there should be access to a tiered mental health support system that is recovery oriented for every person with mental health difficulties.
It said that to reduce attrition, a community agreed discharge plan should be put in place for prisoners.
Some of recommendations are set to be implemented in the next 18 months, while others will take three to five years.
The taskforce, chaired by former minister Kathleen Lynch, included staff from the Department of Justice and the Department of Health, representatives from the HSE, the Central Mental Hospital, and the Irish Prison Service.
The Irish Penal Reform Trust (IPRT) welcomed the final report.
Saoirse Brady, its executive director, said “We welcome the taskforce’s holistic approach in recognising the role of all actors within the criminal justice system in ensuring that people with mental health or addiction issues are diverted from prison where this is possible and appropriate.
The report is the realistic and responsible approach to maximising public safety, strengthening rehabilitative efforts, upholding the human rights of the most marginalised and ensuring that public money is used in the most effective way possible. Implementation will be key!
— Saoirse Brady (@saoirse_b) September 30, 2022
“For too long – and in the absence of adequate quality mental health and addiction treatment services in the community – prison has been the default option for people who experience these challenges.
“We also welcome the acknowledgement that very often mental health and addiction issues are the result of earlier trauma experienced by an individual.
“Historically, the criminal justice sector has been left to pick up the pieces when people come into contact with that system through their mental health or addiction, often with devastating and tragic consequences.
“There must be an ongoing recognition at all levels within the Department of Health, Health Service Executive and other relevant agencies that they all have a responsibility to the individuals who require their care and this will ultimately prevent further harm and in some cases – even save lives.
“From public opinion polling that IPRT commissioned over a decade ago, we know that the vast majority of the Irish public believe that mentally ill people who commit an offence should be treated in a mental health facility instead of being sent to prison, and that those with an addiction issue should receive appropriate treatment.”
Minister for Justice Helen McEntee said those who end up within the criminal justice system have higher rates of mental health and addiction challenges than the rest of the population.
“This is not a coincidence,” she said. “If we are to address the root causes of offending behaviours, we have to start here.
“If we are to reduce the numbers who end up in a cycle of offending behaviour and if we are to create stronger and safer communities and reduce crime, we have to work together and deliver properly resourced, appropriately located systems of care.
“This is not something that one department or agency can do alone. A collaborative approach has underpinned the work of the taskforce who have agreed a coherent range of ambitious, but realistic, time-lined actions to build and sustain progress.”
