Criminal Cases Review (Insanity) Bill [H.L.] (Hansard, 23 March 1999)

§ Lord Ackner
My Lords, I beg to move that this Bill be now read a second time. I moved that the Bill be read a second time in July of last year without any hope that it would get through in time. However, we were anxious to see the reaction of the Government who have at all times proved most helpful and sympathetic.
The case of Ian 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 in consequence committed to an institution from which he was released in 1960. He made an application to the Criminal Cases Review Commission 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. After giving consideration to its jurisdiction, the commission took the view that it did not have the power to refer such a case to the Northern Ireland Court of Appeal 1254 under Section 10 of the 1995 Act, but decided to seek the assistance of the 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 1995 Act abolished the power of the Secretary of State previously exercised 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(l)(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 states: 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 under section 12 of the 1980 Act against the finding". Mr. Gordon submitted to the commission that he had 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 of a nature which comes within the scope of Section 7 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 the 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 were 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 Her Majesty's pleasure. 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 (Northern Ireland) 1961, which brought into law a range of powers 1255 for dealing with persons suffering from mental disorder. Section 56 enacted new provisions for persons found to be insane. Paragraph (2) of subsection (4) of Section 56 is close to the provisions of the 1883 Act, which was repealed in its application to Northern Ireland in the following terms: (2) whereupon 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 the time, the court shall direct a finding to be recorded to the effect that the person is not guilty of the offence charged on die grounds 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 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 1997. It is basically similar in terms to that contained in the Mental Health Act (Northern Ireland) 1961 and provides for a finding to the effect that a 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 of Section 10(6) of the 1995 Act—"was 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 Northern Ireland concluded that the wording of Section 10(6) of the 1995 Act is, on the face of it, 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 in Section 10(6) of the 1995 Act, that a reference can be made in respect of the finding of not guilty for cause of insanity which applies only to cases decided under the 1966 Act and not in respect of cases where the special verdict under the 1883 Act was "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 a wish for the law to be changed. Mr. Gordon's is not only a "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 1256 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 returned.
I commend the Bill to the House.

§ Lord Thomas of Gresford
My Lords, I am sorely tempted to say that I have heard everything that the noble and learned Lord, Lord Ackner, has said and I have nothing to add, but it would be discourteous if I did not congratulate him on his persistence in presenting this Bill and also thank those from the Home Office who have produced some very informative and helpful explanatory notes to which the noble and learned Lord has consented.
I recall in practice that cases of this nature, where there is a disability of the mind, present very considerable difficulties. This is particularly true when there is an issue as to whether the defendant committed the act which caused the death. I recall in one case for example listening to the prosecution evidence and cross-examining on it, submitting "no case to answer" unsuccessfully, and then having to switch to establish the insanity, resulting in a verdict of "not guilty but insane", which was almost impossible to appeal.
There was another case from Rhyl about 15 years ago where I recall the defendant went to the police station saying that he had gone home and discovered his girlfriend dead. He was a paranoid schizophrenic and after two days of questioning, during which he denied the offence of murder, he was questioned about his religion. A number of questions were put by new police officers who had not previously questioned him which, in the words of the Court of Appeal, enabled them to enter the defendant's closed and bizarre world and caused him to experience an episode of schizophrenic terror during which he made a statement which contained a mixture of obviously unreliable, questionably reliable and obviously reliable matter. That included his saying: Arbitrised humans and small molecular people were screaming at me. My body has been breaking up for the last year. Our relationship was broken. People in my head were yelling out and telling me to kill her, she heard them as well. My birthday came and a little town was telling me for their sake to kill her, millions of lives depended on it. There was trouble in the town and I turned and said I couldn't take it no longer. I pulled the knife our and killed her and lay her on the bed". He was found guilty of manslaughter by reason of diminished responsibility but the Court of Appeal found that the jury would have had no difficulty in distinguishing between the rational and irrational parts of his confession and that his statement had been correctly introduced in evidence.
I refer to that case simply to illustrate the problems which may arise where there is a disability of mind. It is my hope that the Bill will have an effect on a number of cases so that the question of whether the defendant 1257 did what he was said to have done can be brought before the commission and justice may be effected in the end. I welcome the Bill.

§ Lord Taylor of Warwick
My Lords, I too support the Bill introduced by the noble and learned Lord, Lord Ackner. I extend my gratitude to him and to the Home Office for their assistance.
There appears to be a gap in the law in this regard. As I understand it, the Bill merely enables the Criminal Cases Review Commission to refer to the Court of Appeal a verdict of guilty but insane and gives the Court of Appeal powers to hear and dispose of an appeal on such a reference.
Although the verdict of guilty but insane was abolished in the 1960s, it had the same practical effect as its replacement; namely, not guilty by reason of insanity. As I understand it, there may still be a small number of people who were the subject of such a verdict and who would like to have it reconsidered by the Court of Appeal. Indeed, we have heard of the particular case of Iain Hay Gordon from the noble and learned Lord, Lord Ackner. Because of the present situation, Mr. Gordon cannot even have his case investigated. That cannot be justice.
It seems an injustice that someone who has been found guilty but insane should have no possibility of an appeal. It is a long-standing injustice which should be rectified as soon as possible.

§ Viscount Bridgeman
My Lords, from these Benches, I thank the noble and learned Lord, Lord Ackner, for piloting this Bill. In particular I congratulate him on his persistence because he has had to introduce the Bill twice. I associate myself with the thanks given to the Home Office for the extremely helpful explanatory notes. They are particularly helpful to the layman. I thank the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Taylor of Warwick for their helpful comments as noble Lords who have experience of the courts. On this side of the House, we welcome the Bill and support it.

§ Lord Williams of Mostyn
My Lords, I thank the noble and learned Lord, Lord Ackner, and pay willing tribute to the noble Earl, Lord Portsmouth, who, for many months, has pressed vigorously but always courteously for the law to be changed.
At Second Reading last year, I said that the Government support the purpose of the Bill. I repeat that and I accept that there is a gap in the law.
Since the last Session, my officials and I have kept in touch with the noble and learned Lord and with the noble Earl. I am grateful for the remarks of the noble Lord, Lord Thomas, about the quality of the officials' work. It is extremely clear guidance and it is pleasing to have that work recognised publicly. I am grateful to him.

§ Lord Ackner
My Lords, I am grateful to the Minister for his assistance throughout our attempts to have this Bill introduced and supported. I am grateful to all those who have spoken in support of it. I commend the Bill to the House and respectfully ask that it be given a Second Reading.