Court finds defendant unfit to be tried due to inability to comprehend proceedings despite proposed support measures.

[2016] IEDC 12

THE CHILDREN COURT- DUBLIN METROPLOITIAN DISTRICT COURT

DIRECTOR OF PUBLIC PROSECUTIONS (DPP)

APPLICANT

-AND-

JM [N0. 2]

RESPONDENT

Background

1. The defendant JM was born in autumn 1997 and is now aged 18. He resides with his brother who is in his early twenties. Although

there was conflicting evidence to the Court as to the quality of the accommodation, it does appear that at times living circumstances

were difficult for the defendant.

2. The defendant’s mother died in 2012 when he was a teenager. The defendant’s father is in his early forties. He is unemployed and

he doesn’t have sufficient accommodation to provide for the defendant, but he does have regular contact with him. The defendant’s

parents were separated for several years prior to his mother’s death. The defendant also has a young minor maternal half-sister.

Charges

3. The defendant is charged with the following four charges;

A. Garda A in connection with a robbery contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act

2001 made in spring 2013.

B. Garda B in respect of two charges made in winter 2001:

(i) Criminal damage charge contrary to section 2(1) of the Criminal Damage Act 1991; and

(ii) Assault contrary to section 2 of the Non-Fatal Offences against the Person Act 1997.

C. Garda C in connection with possession of an article contrary to section 15 (1) and (5) of the Criminal Justice (Theft

and Fraud Offences) Act 2001 made in summer 2014.

Fitness to be tried

4. The question of fitness to be tried was raised by the Defence and the case was adjourned for both the Defence and Prosecution to

obtain medical reports and oral evidence so that the Court could make a determination if the accused was fit to be tried.

5. In this regard, I was furnished by the Defence with;

a) Medical Reports of Dr. L, Consultant Psychiatrist, dated spring 2015 and autumn 2015.

b) Report of Mr. NR, of the Independent Guardian ad Litem Agency, dated autumn 2015.

6. I was furnished by the Prosecution with two Psychiatric Court Reports of Dr. W, Consultant Forensic Mental Health Service, dated

spring 2015 and spring 2016.

7. The Court was also furnished with a copy of the following papers;

a) Cautioned Memo of an interview held in a Dublin Garda Station in winter 2014.

b) Letters of Dr. T, Inpatient Consultant Psychiatrist from NHS Foundation Trust General Hospital, dated autumn 2015

referring to the period when the defendant was an inpatient in the NHS Foundation Trust General Hospital. In this letter

Dr. T stated:

“My impression is that DM is not fit to plead in his present mental state, as he would be incapable of comprehending

the course of proceedings of the trial, evaluate the evidence or give proper instructions to his legal representatives.

A discharge date has not yet been set”.

c) Case Summary from a Psychiatric Unit in a Dublin Hospital with a letter from Dr. DM, Consultant Psychiatrist, dated

winter 2016.

d) A copy of the Lucena Clinic Psychiatric Psychology Assessment Report dated autumn 2014.

e) A copy of the Lucena Clinic Psychology Assessment Report by Dr. CM in respect of a comprehensive assessment

carried out on two separate dates in summer 2014. The report referred to the WISC-IV (Wechsler Intelligence Scale for

Children 4th edition) which is a cognitive ability assessment of verbal comprehension, perceptual reasoning, working

memory and processing speed index. Results from this test indicted the defendant’s current global cognitive functioning is

in the extremely low range of intellectual ability and ha deteriorated substantially compared with a test in 2006.

9. During the course of the fitness to be tried hearing I received a copy of the hand written notes of Dr. L and Dr. W in connections

with their interviews with the defendant and which formed the basis of their reports to the Court.

10. I heard oral evidence in the Court from Garda B, Mr. NR, Dr. L and Dr. W.

Oral evidence

11. Garda B is an experienced Detective Garda and gave evidence of arrest, charge and caution together with the interview with the

defendant in a Dublin Garda Station. He also gave a description of the living conditions of the defendant at this time of the arrest

which he described as uninhabitable.

12. Mr. NR is an experienced Guardian ad Litem and has extensive experience of giving evidence in all courts in respect of vulnerable

children and adolescents. His role, in this case, was described as a legal advocate in the sense of an intermediary to give a voice to

the defendant and to assist him in his understanding of the Court process. In this regard, it is my view that Mr. NR’s evidence was not

just that of an independent expert, but was also part of the Defence team to assist in their submission that the defendant is unfit to

plead. Mr. NR disputed Garda B evidence of the living conditions of the defendant which he stated were habitable. He stated that the

defendant was vulnerable, requires support the of his brother and father and has a very substantial memory loss. While he accepts

the defendant has some decision- making capacity it is not in his view sufficient capacity to process or retain information even with

the assistance of a support person. He believes that the defendant has a low intellectual functioning, but disagrees that the

defendant’s capacity fluctuates substantially. He was unsure if the defendant took intoxicants.

13. Dr. L is an experienced psychiatrist in the area of medical- legal issues. She interviewed the defendant twice. The first time was

dated spring 2015 and the interview lasted three- quarters of an hour when she saw him alone. The second time was dated autumn

2015 and lasted for approximately an hour and a half when she saw him with Mr. NR.

14. Dr. L gave her evidence as an expert witness. She stated the defendant didn’t engage well in the interviews with her, that he had

difficulty retaining information and had a short time span attention. He had difficulty articulating replies to the questions asked by her.

She described his mental disorder as “primarily related to low intellectual ability coupled with life experiences”. She stated that while

she accepted the defendant had drug- related episodes, his most serious full blown psychotic mental disorder was not drug induced.

She stated that between the first and second interview the defendants intellectual IQ [intelligence quotient] went from low to an

extremely low IQ.

15. Dr. L stated that the defendant’s intellectual impairment doesn’t fluctuate and that his illness makes him vulnerable. She stated

that he “is naive and gullible” and she believes that he did not fabricate his replies to her. Although she wasn’t aware of Dr. W’s

opinion at the time of her interviews, she strongly disagrees with Dr. W’s conclusions that the defendant is fit to be tried.

16. Dr. W is an experienced Consultant Forensic Psychiatrist with the National Forensic Mental Health Service. She has considerable

experience in preparing court reports. Dr. W prepared two reports, dated summer 2015 and spring 2016. It must be noted that Dr. W’s

reports are excellent templates of how to prepare psychiatric reports for court hearings regarding fitness to be tried hearings. The

reports include a very detailed analysis of instructions, documents consulted, consent obtained, family history, personal history

[including education] psychiatric history [including psychological testing] medical history, history of intoxicant use, forensic history,

relationship history, progress since the time of the alleged index offences, witness statement examination, mental state examination,

opinion and recommendations on mental disorder and fitness to be tried with an appropriate declaration of informing the court of her

expertise.

17. Dr. W in her reports and oral evidence approached the matter as an expert witness.

18. Dr. W found in her second report that the defendant has a mental disorder as defined in the Criminal Law (Insanity) Act 2006,

specifically that he has a mental illness described as paranoid schizophrenia, that the defendant has a mild intellectual disability and

that the deterioration in his cognitive functioning since her first assessment may be as the result of his emerging mental illness. She

stated that the defendant was in her opinion fit to be tried as defined in the Criminal Law (Insanity) Act 2006. However, because of

his intellectual disability Dr. W believes that the defendant would benefit in court from simple strategies [which she outlined in her

second report] to enhance his participation in the trial. She did not believe that the defendants living condition including alcohol use

impaired his fitness to plead.

19. Dr. W linked the definition of mental illness to the definition in the Mental Act 2001 and counsel for the defendant asked that the

Court take a broader view of the definition.

Capacity

20. As a result of the evidence presented to the Court by the various witnesses, I find that the defendant has a severe psychotic

mental illness, with an extremely low intelligence quotient exasperated by a severe memory loss that substantially affects his

decision- making capacity. The defendant has a significant intellectual impairment which in my view renders him very vulnerable and is

dependent on significant supports regarding his decision- making ability.

21. Both Psychiatrists believe the defendant doesn’t require involuntary admission for his mental disorder at his time. All parties

acknowledge this matter doesn’t determine the defendant’s fitness to plead.

Decision- making capacity finding

22. I also find the defendant has limited mental capacity [which is equivalent to decision- making capacity] which is a result of his

psychotic illness combined with his low intellectual ability and it is not as a result of lifestyle or substance abuse. The latter factors

have only a marginal impact [if any] on his mental capacity.

Summary of parties’ submissions

23. In summary, the Prosecution accepts that the defendant has a mild intellectual capacity, but that the supports as outlined by Dr.

W in her report would assist him in his trial. They also argue that the Children Court is a specialist court and is capable of dealing with

children who have complex needs and can, therefore, adopt the procedures to cater for the defendant’s circumstances. Finally, the

Prosecution urge the Court to find the defendant fit to plead in this case and afterwards determine the procedure and supports

necessary.

24. In summary, the Defence argue that the defendant is unfit to plead, that the psychiatric evidence submitted to the Court backs

this up and that even with the assistance of an advocate the defendant is unable to plead as outlined in the Criminal Law (Insanity)

Act 2006.

Practice Direction-DCO4

25. I accept that in the Children Court the vast majority of children require the advice of a lawyer to explain to him/her what the

procedures are and that without this advice a child defendant would not receive a fair trial. In this regard, the President of the

District Court signed a Practice Direction DC04 in January 2014, the goal of which is stated as follows:

“5. The goal of the practice direction is to outline the steps which will be employed in the Dublin Metropolitan Children

Court in all proceedings under the Children Act, 2001 as amended, to ensure compliance with a young defendants’

Constitutional rights as well as international standards for juvenile justice set out in the European Charter, the European

Convention on Human Rights, the Convention on the Rights of the Child, the Concluding Observations of the Committee on

the Rights of the Child, and the United Nations "Beijing Rules" on the administration of juvenile justice.

6. Young defendants accused of committing serious crimes may be vulnerable due to their age, level of maturity or

disability when standing trial in the children court. The trial process should not itself expose the young defendant to

avoidable intimidation, humiliation or distress. The ordinary trial process in the children courts is therefore adapted to

meet those ends and ensure due regard to the welfare of the young defendant as appropriate.”

26. I also accept that in a number of cases children with significant childhood issues or vulnerability need the additional assistance of

a support person such as for example a family member, an intermediary or a specialised advocate.

Law relating to Fitness to be Tried

27. I would now like to outline the law regarding the application of fitness to be tried in this case.

28. The Children Court judge determines all issues regarding the accused’s fitness to be tried unless the judge is merely sending the

accused forward to another court.

29. Section 4(2) of the Criminal Law (Insanity) Act 2006 governs a person’s fitness to be tried. It states that:

“[a]n accused person shall be deemed unfit to be tried if he or she is unable by reason of mental disorder to understand

the nature or course of the proceedings so as to:-

(a) Plead to the charge,

(b) Instruct a legal representative,

(c) In the case of an indictable offence which may be tried summarily, elect for a trial by jury,

(d) Make a proper defence,

(e) In the case of a trial by jury, challenge a juror to whom he or she might wish to object, or

(f) Understand the evidence”.

30. Under section 1 of the Criminal Law (Insanity) Act 2006, a ‘mental disorder’ includes mental illness, mental disability, dementia, or

any disease of the mind, but does not include intoxication. This is broader than the definition of a ‘mental disorder’ under the Mental

Health Act 2001. Under section 3(1) of the 2001 Act, a ‘mental disorder’ includes mental illness, severe dementia or significant

intellectual disability.

31. Both the Criminal Law (Insanity) Act 2006 and the Mental Health Act 2001 specifically exclude personality disorders, addictions to

drugs or intoxicants and social deviance.

32. The guiding force of the 2001 Act of “Best Interests” doesn’t apply to the Criminal Law (Insanity) Act 2006.

33. The World Health Organization (“WHO”) defines mental disorder as follows:

“[m]ental disorders comprise a broad range of problems, with different symptoms. However, they are generally

characteri[s]ed by some combination of abnormal thoughts, emotions, behaviour and relationships with others. Examples

are schizophrenia, depression, mental retardation and disorders due to drug abuse.”

34. The net effect from this defendant’s point of view is as follows:

Fitness to be tried is a legal [and judicial] definition which is set out in the Criminal Law (Insanity) Act 2006 and it a

statutory definition. It is a status definition which means either the defendant comes within the definition or he doesn’t.

In simple terms, the question is: is the defendant capable of understanding the proceedings as outlined in section 4(2) of

the Criminal Law (Insanity) Act 2006? Where the Court decides that the defendant doesn’t have a mental disorder within

the meaning of the Criminal Law Insanity Act 2006 he may still be a vulnerable person and this is a factor that should be

considered in the Court proceedings such as in the possible assistance and support that is required by a defendant.

35. Under the Act of 2006, as amended, there does not appear to be any express provision for a conditional order of unfitness to be

tried or for the appointment of an intermediary to enable a defendant is fit to be tried. The question of an intermediary arose in

O’Callaghan v DPP [2011] IESC 30. Following an examination of the accused, the consultant psychiatrist called by the State

suggested in his report that the sister of the accused should sit beside him during the trial in order to explain to him what was going

on. The Circuit Court judge did not follow the advice and instead ruled that the accused was unfit to be tried.

Decision

36. I find on the balance of probabilities that the defendant is unfit to be tried. In this regard I, therefore, disagree with the

Prosecution submission that the defendant is fit to be tried. Although, I accept the Prosecution submitted to the Court that the

fitness to be tried stands on its own and then the Court determines the issues of supports, I find that in this case, taking it at its

most advantageous for the Prosecution, it isn’t possible to separate the issue of support and fitness to be tried. There is no

legislative provision to make a conditional order that the defendant is fit to be tried on the basis of the addition of an intermediary.

37. However, I go further in this case. I do not accept the submission that the adjustments suggested by Dr. W would adequately

safeguard the defendant in a trial. I find the inclusion of an advocate with Mr. NR experience wasn’t sufficient to enable the

defendant to comprehend adequately the matters set out in section 4 (2) of the Criminal Law (Insanity) Act 2006. While I

acknowledge it is possible that the defendant may benefit substantially with the appointment of a specialised intermediary such as a

child and adolescent psychiatrist to enable him to participate in a trial, I also find that this is pure speculation on my part as no

evidence was produced to the Court.

38. As the Court has determined that the defendant is unfit to be tried, the Court will hear submissions with regards to the remaining

requirements under the Criminal Law Insanity Act 2006.

Judge John O’Connor

District Court Judge