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JUDGMENT of Mr. Justice Hardiman delivered the 22ndday of July, 2011.
This appeal arises out of the disposition of a criminal case against the applicant in the Cork Circuit Court in the year 2006. It involved allegations of burglary and indecent assault. The question of the applicant’s fitness to be tried was raised by his solicitor and counsel. This issue was somewhat a fraught one and there was professional psychiatric evidence on both sides. A Dr. Dunne, Consultant Psychiatrist, called on behalf of the applicant concluded that he was not fit to be tried and a Dr. Morgan, Consultant Psychiatrist called by the State, came to the opposite conclusion. The latter however concluded his report as follows:
“May I take the unusual step of suggesting that his sister Mary should sit by him during the trial if he is not pleading to the offences and should he be found fit to plead, she could explain to him what is going on. He himself is capable of then making the decisions”.
The learned Circuit Judge gave his ruling on the issue on the 6th July, 2006 as follows:
“I have had the benefit of the evidence of Dr. Dunne and of Dr. Morgan. Dr. Dunne’s evidence is very clear. He says he [the applicant] has a language difficulty and because of that he has difficulty understanding. He says he could be autistic. Dr. Morgan thinks he could plead, accepts, he generally agrees with Dr. Dunne’s findings, but thinks he could plead thinks he could be assisted. The standard of proof is on the balance of probability as to whether he is fit to plead or not and in view of what Dr. Dunne said to me, with a qualified qualification by Dr. Morgan, I take the view that I should be concerned about this, therefore on the balance of probability I take the view that he is not fit to plead”.
The Court’s formal order to this effect was subsequently taken up and is exhibited in the present proceedings.
In the same Order, apparently as a consequence of the finding about fitness to be tried, the Court adjourned the case to the 18th July, 2006. It was further adjourned on multiple occasions.
By the 26th July, 2006, the prosecution came into possession of a further medical report from a third psychiatrist, Dr. Harry Kennedy, Director of the Central Mental Hospital. The statutory context of this report, and its contents, will be discussed below. According to the State Solicitor’s affidavit, the effect of the report was to make the prosecution wish to re-enter the proceedings upon the basis that they could convince the Court that the applicant was no longer unfit to plead. The State Solicitor, Mr. Boohig says that the defence were notified at least as early as November, 2006 of this desire on the part of the prosecution. On the 13th November, 2006, the matter was adjourned on that basis until February, 2007. The case was then adjourned on a considerable number of occasions as follows:
From October, 2006, to the 13th November, 2006, and thence to 30th November
From 30th November, 2006, to the 13th February, 2007
From 13th February, 2007, to the 8th March, 2007 ‘for legal argument’
From 8th March, 2007, to the Easter sessions ‘due to the ill health of the applicant’
From the 23rd May, 2007, to the 19th June, 2007 “as Dr. Kennedy was not available to give evidence”.
From the 19th June, 2007, to the 25th June, 2007, to hear Dr. Kennedy’s evidence.
From the 25th June, 2007, to the 31st October, 2007, because Dr. Kennedy was not available.
According to the State Solicitor’s affidavit, the case was listed in the Cork Circuit Criminal Court on the 31st October, 2007 “for the purpose of hearing the State’s application to re-enter the matter and for the Court to hear the necessary evidence from Professor Kennedy”. The matter was however then adjourned to the 22nd November. On that date, again according to the State Solicitor:
“… a lengthy discussion took place between myself, the prosecution counsel, and Professor Kennedy as to whether or not the Circuit Judge could make any further order in the matter. It was felt that no further order could be made at that point in time. Section 4(5)(c) of the Act could not apply based on Professor Kennedy’s findings as to the state of the accused. Accordingly the view was taken that it would be appropriate to enter a nolle prosequi to the charges and I believe that no further discussion took place before the Court”.
This discussion was between the State lawyers and their expert witness, and took place in private.
The nolle was then entered. About five months later, on the 25th March, 2008, the D.P.P. had the respondent brought before the District Court and charged with precisely the same offences as those in relation to which the nolle had been entered and he was subsequently returned for trial on those same charges to the sitting of the Cork Circuit Court on the 15th April, 2008.
The applicant then sought relief by way of judicial review. His application was dismissed in the High Court. He now appeals.
Legal context of the above.
The principal legal context in which the above events took place is that of the Criminal Law (Insanity) Act, 2006. This Act deals with a number of topics in relation to persons of doubtful mental capacity involved with the criminal justice system, whether at trial or after conviction, and in particular amends the law in relation to unfitness to be tried. This is done in the main by Section 4 and Section 13 of the Act. Like many modern statutes the Act is not very clearly or logically drafted but its purport in relation to the matters at issue here seems clear enough.
By virtue of s.4(2) an accused person shall be deemed “unfit to be tried” if he 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 trial by jury,
(d) Make a proffered defence,
(e) In the case of a trial by jury challenge a juror to whom he may wish to object or
(f) Understand the evidence.
The concept of unfitness to be tried thus includes, but is broader than, the concept of unfitness to plead.
In the case of an indictable offence, the issue of unfitness to be tried, when raised by the defence, is to be tried by the judge sitting alone.
By virtue of s.4(5)(c) insofar as relevant:
“… if the judge determines that the accused person is unfit to be tried, he or she shall adjourn the proceedings until further order, and may-
(i) If he or she is satisfied having considered the evidence of an approved medical officer pursuant to subsection (6) and any other evidence that may be adduced… that the accused person is suffering from a mental disorder… and is in need of inpatient care or treatment in a designated centre, commit him or her to a specified designated centre until an order is made under s.13…”.
The following sub-paragraph reiterates the foregoing provision, but in relation to outpatient care.
“No longer unfit to be tried”.
It is next relevant to note that, by s.13(3)(a):
“Where the Clinical Director of a designated centre forms the opinion in relation to a patient detained pursuant to s.4 that the patient is no longer unfit to be tried for an offence he or she shall forthwith notify the Court that committed the patient to the designated centre of this opinion and the Court shall order that the patient be brought before it as soon as may be to be dealt with as the Court shall think proper.”
It should be noted that this Section could not apply directly to the present case since, on the applicant, the applicant was never “a patient detained pursuant to s.4” but had apparently subjected himself voluntarily, at the request of the prosecution, to examination by Dr. Kennedy. Accordingly it appears that Dr. Kennedy was never under an obligation to communicate his opinion to the Court but he was of course entitled to communicate his opinion to the prosecution and to act as a witness on their behalf.
Consistent with the above provision, s.4(5)(d) provides that:
“Where the Court determines that the accused person is fit to be tried the proceedings shall continue”.
Also consistently with the above, s.4(4)(e) of the Act of 2006 provides:
“Where the Court subsequently determines that the person is fit to be tried, the provisions of the Criminal Procedure Act, 1967 shall apply as if an order returning the person for trial had been made by the Court on the date the determination was made”.
It is clear from the context that the word “subsequently” means subsequent to a determination of unfitness to be tried. This determination is addressed in the previous sub-paragraph.
Accordingly, it seems to me to be clear that a determination that a defendant is unfit to be tried is not necessarily a determination that he will be so unfit for ever. On the contrary, it seems that the statute clearly envisages that a person who has been properly determined to be unfit to be tried may, subsequently, be determined to be “no longer” unfit to be tried i.e. to have become fit. I did not understand the applicant to dispute this proposition on the hearing.
It will be noted that the obligation on the Director of a designated centre to inform the Court that a person is no longer unfit to be tried” necessarily implies that the person was previously unfit to be tried but has to be ceased to be in that condition. Section 4(5)(d), quoted above, equally makes it clear that the Act envisages, very realistically, that a person, before a court, properly and correctly found to be unfit to be tried, may later become fit to be tried.
It is obviously very much in the public interest, firstly that a person should not be put on trial when he is in fact unfit to be tried due to a mental disorder and secondly that a person shall not escape trial indefinitely because, at a previous time he was unfit to be tried but is no longer so.
It also appears to me that a determination of whether a person before a court on a criminal charge is, or is not, or was but is no longer, unfit to be tried, is a judicial function and part of the administration of justice committed exclusively to the judiciary.
Was the statute observed in the present case?
It will be observed that the power and duty of the Director of a designated centre to inform a court that a person is no longer unfit to be tried exists exclusively in relation “to a patient detained pursuant to s.4”.
It does not appear to me that the applicant here was ever “a person detained pursuant to s.4”. The order of the Cork Circuit Court, which it did not prove possible to take up until the 19th June, 2008, simply records a finding that the accused is not fit to plead and an adjournment of the case “with the accused on bail as heretofore”.
By virtue of s.4(6) a court may commit a defendant in relation to whom there is an issue as to whether he is fit to be tried to a designated centre for a period of not more than fourteen days, for the purpose of being examined by an approved medical officer. This, however, was not done in the present case. The power which I have quoted above, arising under s.4(5)(c) is a discretionary power which may, but need not be, exercised after a determination that an accused is unfit to be tried and is for the purpose, solely, ascertaining whether the person is suffering from a mental disorder and is in need of inpatient care or treatment. Again, the accused here was never committed for that purpose. Precisely how he came to be examined by Dr. Kennedy is not clear but it appears to have been on a voluntary basis.
However that may be, it is a fact that he was examined by Dr. Kennedy who was of the view that he was not suffering from any mental illness, or from any mental disorder as these terms are defined in the statutes. Neither, in Dr. Kennedy’s view is he in need of inpatient or outpatient care or treatment at a designated centre. He disagreed with the psychiatrist who said otherwise. He is “no longer unfit to be tried” in Dr. Kennedy’s opinion.
In the course of his written opinion, at paragraph 6, Dr. Kennedy stated:
“The Court may now consider s.4(5)(d). This is the provision, quoted above, that allows proceedings to continue “where the Court” determines that the accused person is fit to be tried”.
Dr. Kennedy, somewhat curiously, then drew the attention of the Court to his own powers under s.13(3)(a), also quoted above. He introduced this Section with the words “in the alternative…”, i.e. in the alternative to s.4(5)(d) but s.13(3)(a) does not in any real sense provide an alternative to the Section 4 procedure with which it is juxtaposed. On the one hand there is the Director’s obligation to inform the Court if he considers that a committed person is no longer unfit to be tried. But, for proceedings to continue, the Court, and not only the Director, must be satisfied that the person is fit to be tried. No doubt, in considering this question, the Court will consider the Director’s opinion on the question. Equally it will consider any other evidence on the question and, in the present case, there was plainly scope for contradictory evidence to that of Dr. Kennedy, for example that of Dr. Dunne, the psychiatrist who had already reached a contrary conclusion.
As this case demonstrates, consultant psychiatrists of high qualifications and considerable eminence may quite properly differ on a psychiatric question to which their expertise relates. Such a disagreement is not at all rare and is something the Courts are quite used to resolving, having considered the evidence of the professionals who are unable to agree. But in this case the Court never had an opportunity to consider the question after Dr. Kennedy’s evidence became available.
Why the Court did not consider the conflict of evidence.
It is plain from the factual summary offered above that:
(a) On the 6th July, 2006, the Court found that this applicant was unfit to be tried on the charges against him.
(b) Subsequently, the State obtained an opinion from Dr. Kennedy to the effect that in his opinion the accused was fit to be tried as of the 26th July, 2006. This offered scope to have the applicant found “no longer” to be unfit to be tried.
(c) The matter then came before the Circuit Court on numerous occasions, set out above. It was intended to call the evidence of Dr. Kennedy, but this was not done. Eventually a nolle was entered.
It is clear from the affidavit of both the applicant’s solicitor and the State’s solicitor, Mr. Boohig, that both sides considered it “necessary” to hear the evidence of Professor Kennedy. Dealing with this question, at para. 7 of his affidavit sworn on the 22nd February, 2009, Mr. Boohig said:
“When the matter came back before the Circuit Court on the 31st October, 2007, it was listed for the hearing of the State’s application to re-enter the matter and for the Court to hear the necessary evidence from Professor Kennedy”.
It appears, indeed, that the principal reasons for the numerous adjournments of this case was the need to secure the attendance of Professor Kennedy. Nevertheless, when Professor Kennedy turned up on the 22nd November, 2007, he was not called to give evidence. This was clearly a decision taken by the prosecution alone. At para. 8 of the affidavit already referred to Mr. Boohig said that, on that date:
“… a lengthy discussion took place between myself, the prosecution counsel and Professor Kennedy as to whether or not the Circuit Judge could make any further order in the matter. It was felt that no further order could be made at that point in time. Section 4(c) of the Act could not apply based on Professor Kennedy’s findings as to the state of the accused. Accordingly, the view was taken that it would be appropriate to enter a nolle prosequi to the charges and I believe that no further discussion took place before the Court.”
These events are described, from the defence point of view, in the affidavit of the applicant’s solicitor, Ms. Colette McCarthy as follows:
“I say that eventually on the 22nd November, 2007, the matter was again listed at the Cork Circuit Court and that the State applied for a nolle prosequi of the proceedings”.
Ms. McCarthy also says that on the previous date the matter was in court, the 31st October, 2007:
“the matter was listed for the hearing of the State’s application to re-enter the matter and to hear the necessary evidence from Dr. Harry Kennedy on behalf of the State on the 22nd November, 2007”.
Meaning of the foregoing.
The State’s affidavit accordingly says that the nolle prosequi was entered because, after a lengthy discussion between Mr. Boohig, prosecution counsel and Professor Kennedy as to whether or not the Circuit Judge could make any further order in the matter it was felt that the learned Circuit Judge could make no further order. This was apparently because “Section 4(5)(c) of the Act could not apply based on Professor Kennedy’s findings as to the state of the accused”.
This is very difficult to understand. The provision mentioned by Mr. Boohig, Section 4(5)(c) relates exclusively to the position which obtains when the Judge has made a finding of unfitness to be tried. By the time Dr. Kennedy had arrived in the Court to give evidence, that stage had been passed some years previously. But, on the affidavits filed on both sides of this case, it is clear that the stage that had been reached on the arrival of Dr. Kennedy at the Cork Circuit Court was one in which the prosecution were applying to re-enter the case for it to proceed in the ordinary way, and for that purpose to hear “the necessary evidence” of Dr. Kennedy. That is what the State itself says. We know that that evidence would have been to the effect that the applicant was “no longer unfit to be tried”. The learned trial Judge would also, of course, have had to hear the evidence of any other witness called by the prosecution and of any witness or witnesses called by the defence. Having done so he could, if he thought fit, have decided that the applicant was then fit to be tried, in which case “the proceedings shall continue”.
It appears to me that the foregoing is the effect of the statutory scheme in relation to a person who has been found unfit to be tried but in respect of whom the prosecution wish to assert that he has since become fit to be tried. For whatever reason, the prosecution in this case decided not to follow that scheme but simply to enter a nolle prosequi. Five months after doing so the Director of Public Prosecutions caused the applicant to be charged with the self same offences as those on which he was originally before the Court.
It is important to note that, as a matter of fact, no explanation whatever has been given for the entry of a nolle. It has merely been said that, after a discussion between the State Solicitor, Mr. McCarthy, the prosecuting counsel and Dr. Kennedy it was decided that the Court could make no further order. This is not the case. The reference to a particular statutory provision, - s.4(5)(c) - to the effect that it “could not apply based on Professor Kennedy’s findings as to the state of the accused” is literally meaningless. The time had come and gone for that Section to be applied and neither side thought that its provisions were now of any relevance. The relevant Section by the 22nd November, 2006, was s.4(5)(d), the Section allowing the Court to determine that the person who had previously declared unfit to be tried was now to be fit to be tried, and permitting the case to proceed. Since this Section and its application had already been identified by Dr. Kennedy in his report as being of relevance, it is very hard indeed to know how the triumvirate which on 22nd November, 2007, decided “that the learned Circuit Court Judge was unable to make any further order” can have arrived at that clearly incorrect conclusion. The matter should have been put before the Court but the State decided not to do this.
The question which now arises is as to whether the prosecution can cut through this Gordian knot of their own making by the entry of a nolle prosequi.
The nolle prosequi.
It is clear from the affidavits that the real and intensely felt dispute between the Director and the applicant and his representatives turns on the entry of a nolle followed by the reinstitution of identical proceedings. Ms. McCarthy says, at para. 6 of her affidavit on the 16th March, 2009:
“I say and believe that at no point was it stated to us by the prosecution that the matter would be re-entered by way of fresh prosecutions. There was no contemplation of the same in the Cork Circuit Criminal Court. No proceedings in the experience of my senior counsel or junior counsel or this solicitor have ever been instituted in any circumstances where a nolle prosequi has been entered in the Cork Circuit Criminal Court. There was no indication given in any conversation, either in court or indeed outside court, at any stage, that there was a contemplation of fresh proceedings”.
Mr. Boohig does not contradict this but puts the same set of facts in a different perspective in para. 8 of his affidavit of the 22nd February, 2009, where he says, at the end of para. 8 that:
“At no point was there any indication given that the charges were being abandoned or that a fresh prosecution would not recommence in due course”. (Emphasis added)
The legal nature of a “nolle prosequi”.
The entry of a nolle prosequi is so frequent an occurrence in our criminal courts that the statutory provisions that apply to it are often ignored and a sort of informal procedure substituted without objection. This, over a long period of time, has tended to obscure the true nature of the power to discontinue proceedings by the nolle prosequi procedure. The question was fully discussed in the leading case of
The State (O’Callaghan) v. ÓhUadhaigh [1977] IR 42. In view of the length of time that has passed since that judgment was delivered, I wish to record my respectful agreement with the judgment of Finlay P. (as he then was) in that case.
It appears that the power of the Attorney General as prosecutor to enter a nolle prosequi is of ancient origin. However, by s.12 of the Criminal Justice (Administration) Act, 1924 it is provided that:
“At the trial of a prisoner on indictment at the prosecution of the Attorney General of Saorstát Eireann, a nolle prosequi may be entered at the instance of the Attorney General of Saorstát Eireann at any time after the indictment is preferred to the jury and before a verdict is found thereon, and every such nolle prosequi shall be in the following form, that is to say:
‘on the day of …. at the trial of AB on the prosecution of the Attorney General of Saorstát Eireann on an indictment for , the said Attorney General in his proper person (or by his counsel) stated to the Court that he would not further prosecute the said AB on the said indictment, where upon it was ordered by the Court that the said AB be discharged of and from the indictment aforesaid’.”
No point arises about the transfer of certain functions of the Attorney General to the Director of Public Prosecutions, on the authority of O’Callaghan’s case.
It still remains the position, as was noted by Finlay C.J. in 1977, that “it has not been the practice (except in very exceptional circumstances) to prefer an indictment to the jury before the entry of a nolle… It has been a regular and usual feature at the trial of criminal trials for counsel on behalf of the [prosecution] to enter a nolle prosequi before the indictment has been preferred to the jury. It is also true to say that my experience as a practitioner as well as a judge would indicate that the making of an order in accordance with s.12 of the Act of 1924 is the exception rather than the rule”.
Finlay P. also held that the power now contained in s.12 is the only power now residing in the Director of Public Prosecutions to enter a nolle.
In O’Callaghan Finlay P. treated the purported entry of the nolle prosequi in that case, even though deficient in form having regard to the terms of the statute, as a valid entry of a nolle. The statute is, however, authoritative on the question of the circumstances on which a nolle may be entered: it is after the statement by or on behalf of the State prosecutor that “he would not further prosecute ‘[the defendant] on the said indictment, whereupon it was ordered by the Court that the said [prisoner] be discharged of and from the indictment aforesaid”.
It therefore appears that, over a period now of many decades, the practice has rather elided and obscured the procedure set out in the Act of 1924, firstly by a total want of form, secondly by entering the nolle prosequi before, and not after, the indictment is preferred and often in a situation where no indictment physically exists; and thirdly by not actually stating to the Court that the Director will not further prosecute the prisoner.
A consequence of this unfortunate informality has been the phrase “nolle prosequi” has become just that, merely a phrase, and the precondition for its entry viz. a decision by the prosecutor, communicated to the Court, not further to prosecute the indictment, has become obscured. Such a decision, whether articulated or not, is nonetheless as a result of the provisions of s.12 of the Act of 1924 a necessary precondition to the entry of a nolle.
In those circumstances, Finlay P. concluded, at p.51 in the report of O’Callaghan:
“The terms of s.12 of the Act of 1924 relevant to this issue mean that effectively the accused person in respect of whom the nolle prosequi has been entered is discharged of and from the indictment specified. This is not conclusive of the question whether he is freed or immune from any subsequent indictment in respect of the offence which is the subject matter of the indictment.
It can be argued plausibly that in addition to this specific statutory power the Director of Public Prosecutions has the same right as any other litigant before the Courts of not proceeding with the case and that where, for example, as occurs in practice upon the arraignment of an accused and the preferring of an indictment against him to the jury, the Director of Public Prosecutions by his counsel indicates that he does not wish to tender any evidence an undoubted acquittal is achieved which is an undoubted bar to any further proceedings arising out of the same matter. The existence of this alternative method of procedure, which is sometimes experienced in practice, does tend to suggest that the discharge created by the entry of a nolle prosequi under s.12 of the Act of 1924 does not of necessity free the accused person from anything other than the proceedings under the precise or identical indictment concerned and does not free him from the institution of entirely fresh proceedings arising out of the same alleged offence.”
Finlay P. did not in fact have to resolve the issue because, in the circumstances of O’Callaghan’s case, it was possible to conclude that the entry of a nolle prosequi in the circumstances of that case, where the prosecution had been about to lose an important legal argument before the trial judge, was an unfair exercise of the power which conferred an improper advantage on the prosecution.
The prosecution in the present case strongly contend that the finding of His Honour Judge Moran as to the unfitness of the applicant to be tried did not constitute any form of advantage to the applicant of which he is being wrongly deprived. After serious consideration of this issue, I am satisfied that the prosecution contention is correct. I do not believe that a finding of unfitness to be tried can fairly or reasonably be described as an advantage to the applicant.
The effect of the entry of the nolle prosequi has been, however, radically to change the situation which previously obtained. I say that for the following reasons.
Before the entry of the nolle prosequi, the applicant had been found by His Honour Judge Moran to be unfit to be tried. This was a judicial determination. In my opinion it could be displaced only in the manner envisaged by s.4(5)(d) of the Act of 2006, by a subsequent finding of the learned trial judge that the applicant was no longer unfit to be tried. This was at one stage the view of the prosecution themselves and it was for that reason that they arranged for a motion to re-enter the proceedings to be issued, designed to be heard before His Honour Judge Moran. But the prosecution aborted this proceeding. Had they proceeded with it, relying on the evidence of Dr. Kennedy, it appears clear to me that the onus of proof would have been upon the prosecution as the party attempting to disturb a previous finding of the Court.
When the nolle prosequi was entered, the prosecution considered that its effect was to permit them to prefer new charge sheets alleging the self same offences against the applicant. These charges are now before the Circuit Court. But, in the view of the prosecution, the previous finding of Judge Moran that the applicant is unfit to be tried does not apply to these new charges. It was however (they said) open to the applicant to raise the issue of fitness to be tried afresh.
As I have already stated, the finding that the applicant is unfit to be tried was a judicial finding entrusted by statute to a judge and constituting an administration of justice by that judge. In my view, the proposition that that determination can be set aside or rendered nugatory by the entry of a nolle prosequi and the subsequent preferring of identical charges, pays insufficient respect to the judicial determination thereby deprived of effect. It ignores its status as a judicial determination, capable of being displaced, as the Act envisages, only by another judicial determination. It is based on a serious and effectively unexplained error by the prosecution. Its effect is to require the question of fitness to be tried to be litigated afresh. The defendant is not thereby deprived of a legal “advantage” but he is deprived in an irregular manner of the finding of a judge of competent jurisdiction and is transformed from being a party resisting an application to discharge a previous order, and bearing no onus of proof to a party who (the State contends) would bear the onus of proof, and therefore have to set up and reargue an issue which has already been decided in the manner that he wished.
In my view, the principal value at stake in these proceedings is not that of protecting a litigious advantage which has accrued to the defendant, but that of protecting the integrity of a decision of a court of competent jurisdiction and thus the greater value that determination of fitness or unfitness to be tried, is a judicial function. I do not believe that the prosecution can, without any judicial process, discharge such an order and then proceed afresh as though it had never been made, merely by the entry of a nolle prosequi. I would therefore grant an order restraining the prosecution from further prosecuting the applicant upon the new charges.
