Criminal Appeal (Amendment) Bill [H.L.] (Hansard, 29 July 1998)

§ Lord Ackner
My Lords, I beg to move that this Bill be now read a second time. The case of Iain Hay Gordon is the stimulus behind the Bill. He was tried on indictment in Northern Ireland in 1953 for the crime of murder. The jury returned a special verdict under the Trial of Lunatics Act 1883 that he was guilty of the act charged against him but was insane when he did that act. He was committed in consequence to an institution from which he was released in 1960. He made an application to the Criminal Cases Review Commission, 1590 set up under the provisions of the Criminal Appeal Act 1995, seeking to have his case referred to the Court of Appeal of Northern Ireland with the object of having the jury's verdict reviewed.
The commission took the view, after giving full consideration to its jurisdiction, that it did not have power to refer such a case to the Northern Ireland Court of Appeal under Section 10 of the 1995 Act but decided to seek the assistance of that Court of Appeal in order to get its view on the issue of jurisdiction. The Court of Appeal of Northern Ireland decided that the commission's decision was correct.
Your Lordships may recall that Section 3 of the Act of 1995 abolished the power of the Secretary of State, previously exercisable under Section 12 of the Criminal Appeal (Northern Ireland) Act 1980, to refer cases to the Court of Appeal. The Criminal Cases Review Commission was established by Section 8. Its powers to refer matters to the Court of Appeal were set out in Section 10. Section 10(1)(a) provides that: Where a person has been convicted of an offence on indictment in Northern Ireland, the Commission may at any time refer the conviction to the Court of Appeal". The commission's powers in respect of cases involving insanity are contained in Section 10(6) which reads: Where a finding of not guilty on the ground of insanity has been recorded in Northern Ireland in the case of a person, the Commission may at any time refer the finding to the Court of Appeal; and a reference under this subsection shall be treated for all purposes as an appeal by the person under section 12 of the 1980 Act against the finding". Mr. Gordon submitted to the commission that it had power to consider and refer his case since the wording of Section 10 was sufficient to cover a case in which the verdict was one of guilty but insane. The subsequent issue therefore was whether a specific verdict under the 1883 Act is a conviction, sentence or finding of a nature which comes within the scope of Section 10 of the Act, so empowering the commission to refer it to the Court of Appeal of Northern Ireland for review.
I can take the reference to the historical situation of the legislation quite shortly. Where a defendant is of unsound mind he is regarded by the common law as unable to form the guilty mind required to found a conviction. Before 1880, when the jury found that a defendant had committed the act but was insane, it could either return a general verdict of not guilty or a special verdict that he had committed the act but was non compos mentis in which event the court would enter a verdict and judgment of acquittal. The judges had power to order him to be detained in custody as a dangerous person although it appears that this practice was not always followed.
The practice was made mandatory by the Criminal Lunatics Act 1880, under which if a defendant was found not guilty of a felony by reason of insanity the jury had to return a special verdict to that effect; then the court was obliged to order the defendant to be detained during His Majesty's Pleasure.
1591 The terms of the special verdict were changed by Section 2(1) of the Trial of Lunatics Act 1883, which prescribed that it was to be to the effect that, the accused was guilty of the act or omission charged against him, but was insane at the time when he did the act or made the omission". The special verdict under the 1883 Act was no different in substance from that given under the 1880 Act. There was, of course, no right of appeal.
The general law governing mental health was modernised in Northern Ireland by the Mental Health Act 1961 which brought into law a range of powers for dealing with persons suffering from mental disorder. Section 56 enacted new provisions for persons found to be insane. Subsections (2) to (4) of Section 56 are close to the provisions of the 1883 Act, which was repealed in its application to Northern Ireland in the following terms: (2) Where upon the trial on indictment or on an information of any person charged with the commission of an offence—

(a) evidence is given that the person charged was insane at the time the offence was committed; and

(b) the jury find that although the person charged did the act or made the omission charged, he was insane, so as not to be responsible according to law for his actions at that time;

the court shall direct a finding to be recorded to the effect that the person is not guilty of the offence charged on the ground of insanity". The special verdict under the 1883 Act was accordingly replaced by a finding, a term echoed in Section 10(6) of the 1995 Act to which I have referred.
The current provision relating to findings of insanity is contained in Article 50 of the Mental Health (Northern Ireland) Order 1986, as amended by Article 50 of the Criminal Justice (Northern Ireland) Order 1996. It is basically similar in terms to that contained in the Mental Health (Northern Ireland) Act 1961 and provides for a finding to the effect that the person is not guilty of the offence on the ground of insanity.
Thus, the primary submission advanced by Sir Louis Blom-Cooper on behalf of Mr. Gordon was that Parliament, in enacting the words in Section 10(6) of the 1995 Act, not guilty by reason of insanity", intended to include the phrase "guilty but insane". His thesis was that the two phrases are interchangeable in essence and intent and that the change from the first to the second and back again was no more than terminological.
However, the Court of Appeal of Northern Ireland concluded that the wording of Section 10(6) of the 1995 Act is on its face clear enough, that only a finding of not guilty on the ground of insanity recorded in Northern Ireland may be referred by the commission to the Court of Appeal.
The Court of Appeal considers that there is not a sufficient reason to depart from the plain meaning of the words of Section 10(6) of the 1995 Act that a reference can be made in respect of a finding of not guilty because of insanity, which applies only to cases decided since 1592 1961, and not in respect of cases where there was a special verdict under the 1883 Act of "guilty but insane".
In my submission, the omission of the verdict of "guilty but insane" is a simple error in drafting, but it has created the long-standing and tragic absurdity that Mr. Gordon cannot have his case investigated. That outcome was never intended by the Runciman Commission, the work of which established the commission. I understand that the commission has expressed the wish for the law to be changed. Mr. Gordon is not the only "guilty but insane" case. It is generally recognised that it would be absurd for "guilty but insane" verdicts to be excluded. Their effect was the same. Only the nomenclature of the verdict changed. Not to include them, and not to amend the Act, would be to perpetuate in those cases the lack of appellate rights and to perpetuate what could be a violation in that respect of Article 6 of the European Convention on Human Rights. It would certainly be to obstruct justice in the particular case to which I referred. I commend the Bill to the House.

§ Lord Williams of Mostyn
My Lords, I have notified the noble and learned Lord, Lord Ackner, the noble Lord, Lord Kingsland, and the noble Earl, Lord Portsmouth, to whose interest in this matter I pay tribute, that the Government agree with the intention of this Bill and accept that the 1995 Act should be amended to extend the commission's powers in this way. I hope that that is helpful.

§ The Earl of Portsmouth
My Lords, I had intended to speak in support of the Bill moved by the noble and learned Lord, Lord Ackner, but in view of the assurances that I have been given by the Minister, I have nothing further to say except to express to him my gratitude for his co-operation and understanding.

§ Lord Kingsland
My Lords, there is nothing that I can usefully add to what the noble and learned Lord, Lord Ackner, and the noble Earl, Lord Portsmouth, have said. I am delighted that the Minister has intervened in the way that he has. The Bill has, of course, the full support of the Opposition.

§ Lord Williams of Mostyn
My Lords, I am most grateful. The Government accept that there is a gap in the law. It is important to maintain confidence in the criminal justice system. It is important, above all, to individuals who believe that an injustice has been done that there should be an avenue of appeal or some other mechanism to review the verdicts of the courts.
By today's standards it is an injustice that someone who has been found guilty but insane should have no possibility of appeal and it remains an injustice, despite the fact of, and no less for, being a long-standing injustice.
The noble and learned Lord, Lord Ackner, may wish to reintroduce this Bill into the House in the next Session. If he does, and if it is of assistance—I have 1593 indicated this to him privately—I should be most happy to ask officials to discuss the drafting with him. It may be that a Private Member's Bill could be introduced in another place. The Government themselves will give further consideration to what legislative vehicle might be appropriate for the introduction of such a measure.

§ Lord Ackner
My Lords, I am most grateful to the Minister. I commend the Bill to the House and respectfully ask that it be given its Second Reading.

§ Baroness Farrington of Ribbleton
My Lords, I beg to move that the House do adjourn during pleasure for five minutes.