A man found not guilty by reason of insanity on a charge of dangerous driving causing death is entitled to be considered for transfer back to his home country, the High Court has ruled.
The man is being held in the Central Mental Hospital (CMH) after the judge at his trial made a finding, following a jury verdict of not guilty but insane, he required in-patient care and treatment because he suffered from schizophrenia.
He subsequently applied under the Transfer of Sentenced Persons Act 1995 to the Minister for Justice to be sent back to his native European country where a psychiatric institution there had agreed to treat him and he could be close to his wife and children, and his elderly mother.
He was refused by the Minister for Justice.
On Friday, Mr Justice Garrett Simons set aside that decision and ordered the Minister to reconsider the case on the basis that he represents a “sentenced person” for the purpose of 1995 transfer law.
The court heard the ambassador to Ireland from the man’s native country wrote to the Minister for Justice in support of the transfer application.
The Minister refused, saying there was no legal provision for inter-European interstate transfer of patients detained under the Criminal Law (Insanity) Act 2006, as the man was.
The man’s lawyers brought proceedings last July challenging the decision. The director of the CMH, a notice party, said the institution he would be transferred to would provide detention facilities, treatment and reviews comparable to those in Ireland.
The Minister opposed the application.
She argued, among other things, he was not a “sentenced person” under the Irish legislation governing transfer of sentenced people.
The Minister said the European Transfer of Sentenced Persons Convention could not assist in interpreting the terms of the Transfer of Sentenced Persons Act because the Oireachtas had not adopted the meaning given to the word “sentence” in the European Convention.
The Minister also contended the man could not be regarded as having been deprived of his liberty on account of the commission of the offence because his detention was as a result of findings made by the trial judge after the not guilty but insane verdict was delivered by the jury (that he be sent to the CMH).
Mr Justice Simons said the Minister’s decision was erroneous and based on the view that domestic legislation should be given a restrictive interpretation.
This was “all the more surprising” given the European Commission has publicly announced it intends to refer Ireland to the EU Court of Justice for failing to transpose into Irish law regulations giving effect to the European convention on transferring sentenced persons, he said.
The restrictive interpretation urged by the Minister would render the domestic legislation inconsistent with the requirements of both the convention and the regulations which were introduced under a 2008 European Council Framework Decision, he said.
Such an interpretation would be contrary to the interpretative obligation imposed upon a national court by EU law, he said.