Supreme Court dismisses appeal where detention became unlawful due to failure to hear medical evidence before indefinite order.

THE SUPREME COURT

Appeals No. 315 & 318/12

Denham C.J.

Murray J.

Hardiman J.

O’Donnell J.

McKechnie J.

Between/

F.X.

Applicant/Respondent

and

The Clinical Director of the Central Mental Hospital

Appellant

and

The Director of Public Prosecutions

Notice Party

Judgment delivered on the 23rd day of January, 2014, by Denham C.J.

Appeals

1. This is an appeal by the Clinical Director of the Central Mental Hospital, referred to as “the appellant”, from the judgment of the

High Court (Hogan J.), delivered on the 3rd July, 2012, where it was held that the detention of F.X., the applicant/respondent,

referred to as “the respondent”, was not in accordance with law.

2. There is also a cross appeal on behalf of the respondent from the order of the High Court (Hogan J.) made on the 8th July, 2012,

granting a stay on the order for release. On the 8th July, 2012, Hogan J. held that the respondent be released at 5 p.m. on the 10th

July, 2012. This short stay was said to be designed to enable the authorities to take such steps as they thought fit in the meantime

to ensure that in advance of that time and date the respondent’s custody would henceforth be a regular and lawful one.

3. These appeals raise a number of issues regarding Article 40.4.2 of the Constitution of Ireland and the interpretation of s.4(5)(c)

and s.4(6) of the Criminal Law (Insanity) Act, 2006, as amended.

Background Facts

4. The respondent is alleged to have seriously assaulted a fellow patient at Tallaght Hospital on the 11th May, 2010.

5. The respondent was arrested and brought before Tallaght District Court on the 14th May, 2010, and charged pursuant to s. 4 of

the Non-Fatal Offences Against the Person Act, 1997.

6. The respondent was initially remanded by the District Court to Cloverhill Prison. However, Dr. Moola certified that the respondent

was suffering from a mental disorder for which he could not get appropriate care in Cloverhill Prison.

7. The respondent was transferred by the Governor to the Central Mental Hospital in accordance with s. 15 of the Criminal Law

(Insanity) Act, 2006, referred to as “the Act of 2006”.

8. On the 10th June, 2010, the District Court remanded the respondent to the Circuit Criminal Court for the purpose of a fitness

assessment in accordance with s. 4(4) of the Act of 2006.

9. The victim died from his injuries on the 11th January, 2011.

10. On the 14th October, 2011, the respondent was charged with murder and sent forward to the Central Criminal Court.

11. On the 4th November, 2011, the Mental Health (Criminal) Review Board, referred to as the “Review Board”, reviewed the

respondent’s detention in the Central Mental Hospital and decided that he was appropriately detained there.

12. On the 26th March, 2012, the Central Criminal Court (Carney J.) held that the respondent was unfit to be tried. The Central

Criminal Court ordered:-

“THE COURT DOTH FIND pursuant to section 4(5)(c)(i) of the Criminal Law Insanity Act 2006 that the accused herein is

unfit to be tried and is suffering from a mental disorder (within the meaning of the Act of 2001) and THE COURT DOTH

FIND, having heard the evidence of an approved medical officer, that the accused F.X. is in need of in-patient care or

treatment in a designated centre and THE COURT DOTH ORDER pursuant to section 4(5)(c)(i) of the Criminal Law Insanity

Act 2006 (as amended by section 4 of the Criminal Law Insanity Act 2010) that the proceedings herein be and the same

are hereby adjourned until further Order and that the accused F.X. be and is hereby committed to the Central Mental

Hospital, being a designated centre pursuant to the said Criminal Law Insanity Act 2006 until an order is made under

section 13 of the said Criminal Law (Insanity) Act, 2006 (as amended by section 7 of the Criminal Law Insanity Act,

2010).”

13. The Central Criminal Court made its decision having heard evidence from Dr. Brenda Wright, a Consultant Psychiatrist, who was

called by the Director of Public Prosecutions, the notice party, referred to as “the DPP”.

14. Dr. Paul O’Connell, a Consultant Psychiatrist, attended the Central Criminal Court on behalf of the respondent, but he was not

called to give evidence. There was no dispute between the respondent and the DPP on the evidence of Dr. Wright.

15. It was common case that the respondent was unfit to be tried and that he suffered from a mental disorder within the meaning of

the Mental Health Act, 2001, referred to as “the Act of 2001”, and that he required treatment in the Central Mental Hospital.

16. On the 27th April, 2012, the Review Board reviewed the respondent’s detention. In the opinion of that Board the respondent

continued to suffer from a mental disorder that required in-patient treatment in the Central Mental Hospital.

The E.C. case

17. On the 5th April, 2012, after an inquiry under Article 40, the High Court (Hogan J.) delivered a judgment in E.C. v. The Clinical

Director of the Central Mental Hospital [2012] IEHC 152. The High Court’s interpretation of s. 4 of the Act of 2006 in E.C. took a

different view as to how the section was to be operated than that taken by the Central Criminal Court in this case.

18. After the decision of the High Court in E.C., this case was re-entered by the DPP before the Central Criminal Court (Carney J.) on

the 24th May, 2012, for the purpose of informing the Court of the decision in E.C..

19. On the 24th May, 2012, there was no specific request to the Central Criminal Court to vary or amend the earlier order or

alternatively, to make a fresh order. However, counsel informed the Central Criminal Court that, in light of the E.C. decision, he

considered it his duty to seek an Article 40 inquiry. Judge Carney told counsel that he was entitled to go to any serving judge of the

High Court. He did not consider it appropriate that he would hear the inquiry.

Application for an inquiry under Article 40 of the Constitution

20. On behalf of the respondent an application was made to the High Court (Hogan J.) on the 21st June, 2012, for an inquiry under

Article 40.4.2 of the Constitution.

21. The High Court (Hogan J.) delivered a reserved judgment on the 3rd July, 2012, where it was held that the detention was not in

accordance with law, and the matter was adjourned to the 6th July, 2012, pending further argument as to the appropriate remedy.

22. The case resumed on Friday 6th July, 2012, on which date the respondent’s counsel indicated that he would be opposing the

application for a stay. There was legal argument on the issue of a stay.

23. The matter was adjourned to Sunday 8th July, 2012, at 7 p.m. when a further judgment was delivered in which the learned High

Court judge ordered that the respondent must be released from the order of the Central Criminal Court made pursuant to s. 4(5)(c)(i)

of the Act of 2006 on the 26th March, 2012, at 5 p.m. on Tuesday 10th July, 2012. It was stated that the delay was designed in line

with the decision in J.H. [2007] 4 I.R. 242 namely, to enable the authorities to take such steps in the meantime as they think fit to

ensure that from that time and date the respondent’s custody was henceforth regular and lawful.

24. On the 9th July, 2012, the DPP re-entered the matter before the Central Criminal Court (Carney J.). The Central Criminal Court

referred the matter back to Hogan J. who indicated that, as he was not a nominated member of the Central Criminal Court, he was

unable to make an order pursuant to the Act of 2006 in the proceedings brought by the DPP against the respondent.

25. The President of the High Court directed that the matter be listed before Sheehan J.

26. At that time counsel for the respondent appeared before the Supreme Court requesting an immediate appeal against the granting

of a stay by Hogan J. The application was refused by this Court.

27. On the 9th and 10th July, 2012, Sheehan J. heard an application by the DPP seeking a committal of the respondent to the Central

Mental Hospital pursuant to s. 4(6)(a) of the Act of 2006, so as to comply with the statutory process as determined by Hogan J. in

his judgment in this case. The Central Criminal Court ordered on the 10th July, 2012:-

“This matter coming into the list for mention on this day and AND THE COURT having heard the evidence tendered and the

submissions on behalf of the respective parties including the evidence adduced of an approved medical officer in respect

of F.X. in accordance with Section 4(6) (a) of the Criminal Law (Insanity) Act 2006 as amended DOTH ORDER that the

accused F.X. be and is hereby ordered to be committed to a designated centre being The Central Mental Hospital,

Dundrum, Dublin 14 pursuant to Section 4 (6) (a) (i) of the Criminal Law (Insanity) Act 2006 until the 16th day of July

2012 being a period of not more than 14 days AND THE COURT Doth Direct that during such period he be examined by an

approved medical officer in accordance with section 4 (6) (a) (ii) of the Act and that the said approved medical officer

shall report to the Court pursuant to Section 4 (6) (b) of the Act.

Stand adjourned to the 16th day of July 2012.”

28. In other words, Sheehan J. made an order of committal of the respondent to the Central Mental Hospital pursuant to s. 4(6)(a) of

the Act of 2006 until the 16th July, 2012. It was directed that the respondent be examined by an approved medical officer in

accordance with s. 4(6)(a)(ii) of the Act of 2006, and that the said approved medical officer should report to the Court pursuant to s.

4(6)(b) of the Act of 2006 on the 16th July, 2012.

29. On the 16th July, 2012, the matter was returned to the Central Criminal Court (Carney J.) which heard evidence and received a

report from Dr. Damien Mohan, Consultant Psychiatrist. Carney J. made an order pursuant to s. 4(5)(c)(i) of the Act of 2006,

committing the respondent to the Central Mental Hospital pending further order of the Review Board under section 13. The order

stated:-

“THE MATTER coming on for trial of the issue of fitness to be tried pursuant to Section 4 (5) of the Criminal Law

(Insanity) Act, 2006 (as amended by Section 4 of the Criminal Law Insanity Act, 2010)

AND having heard the evidence adduced and the submissions made on behalf of the respective parties and having heard

the evidence of an approved Medical Officer namely Dr. Damien Mohan

THE COURT DOTH FIND, pursuant to Section 4(5)(c)(i) of the Criminal Law Insanity Act, 2006 that the accused herein is

unfit to be tried and is suffering from a mental disorder (within the meaning of the Mental Health Act of 2001) and

THE COURT DOTH FIND, having heard the evidence of an approved Medical Officer, that the accused F.X. is in need of in-

patient care or treatment in a designated centre and

THE COURT DOTH ORDER, pursuant to Section 4(5)(c)(i)of the Criminal Law Insanity Act, 2006 (as amended by Section 4

of the Criminal Law Insanity Act, 2010) that the proceedings herein be and the same are hereby adjourned until further

Order and that the accused F.X. be and is hereby committed to The Central Mental Hospital, being a designated centre

pursuant to the said Criminal Law (Insanity) Act, 2006 until an Order is made under Section 13 of the said Criminal Law

(Insanity) Act, 2006 (as amended by Section 7 of the Criminal Law Insanity Act, 2010).”

Grounds of Appeal of the Appellant

30. The appellant appealed against the order and judgment of the High Court (Hogan J.) of the 3rd July, 2012, on the grounds that

the learned High Court judge had erred in law, or alternatively on a mixed question of law and fact, in holding:-

(i) That the High Court’s jurisdiction to conduct inquiry under Article 40.4.2 extends to considering orders for the

detention made by the High Court, whether sitting as the Central Criminal Court or otherwise (subject to certain

intrinsic limits);

(ii) That the existence of the respondent’s right of appeal to the Court of Criminal Appeal against the Order of the

Central Criminal Court does not preclude the respondent from applying in the alternative to the Court for an inquiry

under Article 40.4.2;

(iii) That the legal basis for the respondent’s custody at the time of the inquiry was the order of the Central Criminal

Court of the 26th March, 2012;

(iv) That the Order of the Central Criminal Court of the 26th March, 2012, was not superseded by the periodic and

independent statutory reviews carried out by the Review Board pursuant to s.10, 11, 12 and 13, respectively, of

the Act of 2006, as amended, in respect of the respondent’s detention as a patient for psychiatric treatment and

care in the custody of the clinical director of the Central Mental Hospital;

(v) That the determinations of the Review Board upon the conclusion of its periodic and independent statutory

reviews not to order the discharge of the respondent from the Central Mental Hospital were not orders for the

purposes of s.13 of the Act of 2006, as amended;

(vi) That the determinations of the Review Board made pursuant to s. 13 of the Act of 2006, as amended, did not

authorise the respondent’s continued detention as a patient in the Central Mental Hospital;

(vii) That the Central Criminal Court cannot make an Order committing a person accused of a criminal offence for in-

patient treatment and care into the custody of the Clinical Director of the Central Mental Hospital following upon a

determination that such person is unfit to be tried, unless there has been a prior committal of that person into the

custody of the Clinical Director of the Central Mental Hospital for a period of not more than 14 days during which

period of time such person must be examined by a consultant psychiatrist prior to the making a valid order under

s.4(5)(c)of the Act of 2006, as amended;

(viii) That in proceedings before the Central Criminal Court where a determination is made by that Court that a

person accused of a criminal offence is unfit to be tried and in circumstances where the said Court has heard

sufficient evidence to the effect that the person is suffering from a mental disorder within the meaning of the Act of

2001 and requires in patient treatment in the Central Mental Hospital, the Court is required by the provisions of

s.4(5)(c) of the Act of 2006, as amended, to adjourn its proceedings before committing the person to the Central

Criminal Court for the purposes of receiving in-patient treatment;

(ix) That following a determination that a person accused of a criminal offence is unfit to be tried the Central

Criminal Court is required first to make an order under s.4(6)(a)(as amended) providing for the accused either to be

detained for a 14 day period or that he or she attend the Central Mental Hospital as an out-patient within that 14

day period and to subsequently receive a further report from a consultant psychiatrist on the issues of mental

capacity and the necessity for in-patient treatment pursuant to section 4(6)(b);

(x) That the report Dr Brenda Wright, and dated the 23rd March, 2012 was not a report adduced pursuant to s.4(6)

of the Act of 2006, as amended;

(xi) That the learned trial judge did not, prior to making his order on the on the 26th March, 2012, consider the

evidence of an approved medical officer adduced pursuant to s.4(6)(b) as the Court had not first made an order

providing for the detention of the respondent at the Central Mental Hospital for an initial period of 14 days despite

the fact that the respondent had been a patient in the Central Mental Hospital continuously since the 14th May,

2010;

(xii) Further and/or in the alternative, that in circumstances where it is undisputed that the respondent’s mental

health condition required his continued detention, treatment and care in the Central Mental Hospital, the learned

trial judge erred in law, or in the alternative erred in a mixed question of law and fact, in holding that it was

necessary for evidence to be adduced pursuant to section 4(6)(b);

(xiii) Further and/or in the alternative, that in circumstances where it is undisputed that the respondent’s mental

health condition required his continued detention, treatment and care in the Central Mental Hospital, the learned

trial judge erred in law, or in the alternative erred in a mixed question of law and fact, in holding that it was not

within his discretion to refuse the relief sought by the respondent at the inquiry;

(xiv) That the respondent’s detention became unlawful after the initial fourteen day period of detention;

(xv) That there was a failure (of jurisdiction) apparent on the face of the order of the Central Criminal Court of the

26th March, 2012.

Grounds of cross appeal of the respondent

31. The respondent filed grounds of cross appeal as follows:-

(i) That the learned trial judge erred in law and in fact in granting a stay on the release of the respondent in

circumstances where he had not been satisfied that the respondent was being detained in accordance with the law.

(ii) That the learned trial judge erred in law in holding that he had jurisdiction to grant a stay on the release of the

respondent in circumstances where he had not been satisfied that the respondent was being detained in accordance with

law.

(iii) That the learned trial judge erred in law in holding that he had jurisdiction to grant a stay on the release of the

respondent, where he had not been satisfied that the respondent was being detained in accordance with the law, for the

purpose of enabling, and in order to enable, the appellant (detainer) take steps in advance of the time set for his release

to ensure that his custody continue henceforth in a regular and lawful manner.

Submissions on behalf of the Appellant

32. Counsel on behalf of the appellant submitted that the practical effect of the decisions of the High Court on the 3rd July, 2012,

and the 8th July, 2012, declaring the respondent’s detention as unlawful was to adjudicate on the legality of the order of the Central

Criminal Court and that the High Court ought to have refused jurisdiction. It was submitted that the jurisdiction of the High Court to

conduct an inquiry under Article 40.4.2 of the Constitution does not extend to orders for detention made by the High Court, whether

sitting as the Central Criminal Court or otherwise.

33. In addition, it was submitted on behalf of the appellant that whilst a literal interpretation of s.4 of the Act of 2006 would require

the Court to engage in a two-stage process, this requirement, however, would only arise in circumstances where limited medical

evidence was available to the court when determining whether an accused person was fit to be tried. The appellant submitted that it

could be argued that the adoption of a literal interpretation of the Act of 2006 leads to a futile or pointless result. The appellant

submitted that whilst there may be circumstances where such a two-stage process would have a meaningful effect, that this did not

apply in respect of the respondent.

34. The appellant submitted that there was abundance of undisputed reliable clinical evidence available before Carney J. at the

fitness hearing on the 26th March, 2012, which enabled him to conclude that the person suffered from a mental disorder as defined by

the Act of 2001, that it was highly unlikely that this diagnosis was going to change in the immediate short term future, and that he

required treatment as an in-patient at the Central Mental Hospital.

35. It was submitted that the literalist approach to the section required that time and resources of the court and the mental health

services be taken up with the empty exercise of adjourning a matter to facilitate the examination of the respondent and preparation

of a report which was already before the Court. This, it was submitted, is an absurd outcome which not only was not intended by the

Oireachtas, and also overlooks the fact that the respondent had not sought to be released in this case.

36. The appellant submitted that the primary purpose behind the requirements for committal under s.4(5) and s.4(6) of the Act of

2006 is the welfare of the patient and his need, or otherwise, for treatment in the Central Mental Hospital. It was submitted that the

imposition of an inflexible mandatory requirement to adjourn the proceedings in order to seek a fresh report from a consultant

psychiatrist, in circumstances where that evidence is already available to the court, is to seek to prioritise form over the welfare of

the patient.

37. In the alternative, were this Court not to accept the construction argument advanced above, and were it to consider that there

has been a breach of the requirements of the Act of 2006, it is suggested that the Court should nonetheless disregard this finding, in

the absence of a breach of fundamental requirements.

38. The appellant submitted that the decision of the Review Board at its Fifth Review hearing, which occurred on 27th April, 2012,

superseded the order of the Central Criminal Court dated the 26th March, 2012, as the basis for the detention of the respondent and

remained the basis for the respondent’s detention until the next decision. It was submitted that the respondent ceased to be

detained pursuant to the order of the Central Criminal Court when the Review Board had its fifth hearing, after which he was detained

under s.13 of the Act of 2006 pursuant to a decision of the Review Board.

Submissions on behalf of the Respondent

39. Counsel for the respondent made oral submissions stating that what was at issue was the constitutional right of a citizen not to

be deprived of liberty save in due course of law and that the release of the respondent was sought, on his instructions. Counsel

argued that this would be in the respondent’s best legal interest. He stated that simply because it was perceived by clinicians that it

was in the respondent’s interest to be deprived of his liberty that that was not a basis for such an order. He did not dispute that the

respondent had severe mental problems, and he took no issue with the medical evidence. Counsel confirmed that the application for

an Article 40.4.2 inquiry was being made by the respondent and that he, counsel, was acting on his instructions. Counsel for the

respondent informed the Court that the lawyers for the respondent had not thought it appropriate to address the issue of his

capacity. Counsel informed the Court that the respondent said that he wanted an application brought as he believed he was

unlawfully detained.

40. Counsel for the respondent submitted that the High Court does have jurisdiction to conduct an Article 40.4.2 inquiry in relation to

an order of the High Court, whether sitting as the Central Criminal Court, or otherwise. It was submitted that if the Article 40.4.2

procedure could not be invoked in respect of orders of the Central Criminal Court, that this would lead to a situation in which those

who are detained on foot of an order of the Central Criminal Court could not challenge the legality of their detention. Further, it was

submitted that to find otherwise would be to preclude a large class of persons from the Article 40.4.2 remedy, and would create an

inequality between those charged in the Circuit Court and those in the Central Criminal Court, as relief under Article 40.4.2 of the

Constitution would be available to the former and not the latter.

41. It was submitted on behalf of the respondent that the wording of the legislation is clear and unambiguous. The Act of 2006

requires two distinct and separate judicial hearings. The respondent submitted that s. 4(5)(c) of the Act of 2006 requires that the

Court having found an accused unfit to be tried, adjourn the proceedings until further order. It was submitted that an adjournment is

the only mandatory consequence of a finding of unfitness. The respondent submitted that the legislation provides, separate to the

initial fitness hearing, for a “liberty hearing” which requires the court to consider the evidence of an approved medical officer, from a

designated centre, who has medically examined the accused and reported on whether that person requires in-patient or out-patient

treatment at the designated centre. On foot of this report, it was submitted, a court could then order either in-patient treatment,

out-patient treatment or make no order for treatment.

42. The respondent submitted that the Act of 2006 is penal in nature, and as a result the purposive approach urged by the appellant

ought not to be adopted by the Court when interpreting same. It was submitted that the best interests of the accused, subject to

the provisions of the Act of 2006, are best served by an observance of the statutory safeguards. Further, that should this Court find

that the provisions of the Act of 2006 are paternalistic in nature, that this cannot prevent adherence to a statutorily required second

liberty hearing. It was submitted that to adopt a paternalistic interpretation of the legislation, and failing to adjourn the proceedings

and obtain an expert report pursuant to s.4(6)(b) of the Act of 2006, is to usurp the role of the Oireachtas. It was submitted that

the clear purpose of the Act of 2006 is to hold two separate hearings, first a hearing as to the fitness of the accused to be tried and

second, on foot of the report adduced pursuant to s. 4(6)(b), a separate hearing as to the liberty of the accused.

43. It was submitted on behalf of the respondent that the argument that the decisions of the Review Board supplant earlier decisions

lacks foundation as there has been no “order made under section 13 or section 13A.”

44. The respondent submitted that the High Court judge erred in law in holding that the Court had jurisdiction to place a stay on the

order for release of the respondent. It was submitted that the wording of the Constitution does not permit the High Court, once

satisfied that an applicant is being unlawfully detained, to do anything other than direct the immediate release of that person. The

respondent relied on authorities of this Court to the effect that the historical position was that it is inconsistent with the terms of the

Constitution to place a stay on an order for release. It was submitted that the High Court judge in the instant case incorrectly

interpreted the ratio of this Court in N v. HSE [2006] 4 I.R. 374 in finding that welfare considerations of the respondent permitted the

High Court to place a stay on the order for release.

Submissions on behalf of the Notice Party

45. The submissions of the Director of Public Prosecutions were largely akin to those of the appellant. The DPP submitted that it was

not necessary for the Central Criminal Court to adjourn the fitness hearing in circumstances where there is no disagreement between

the experts. It was submitted that such an interpretation may lead to results which are contrary to the purpose of the legislation.

The DPP argued that the decision of the High Court failed to give weight to the inquisitorial nature of the fitness to be tried

procedure. The DPP adopted the appellant’s submissions regarding the Act of 2006 and the necessity to give the legislation a

purposive interpretation which permits the two-stage process to be compressed into one stage in such circumstances where the

parties both consent to procedures to be adopted by the court and where the court already has all of the necessary evidence before

it.

46. The DPP submitted that it was not the intention of the Oireachtas that an inadvertent error made in the process leading to the

committal could be relied upon months, or even years, later to declare the committal void in circumstances where there is no

contention as to whether or not the detained person requires the treatment which they are receiving.

47. It was submitted that the orders of the Review Board supersede the order of the Central Criminal Court, or in the alternative,

supersede a procedural error in the making of the order of the Central Criminal Court.

48. It was submitted on behalf of the DPP that, in all of the circumstances of the case, the respondent was in lawful detention at all

times and that the Article 40.4.2 application ought to have been refused by the High Court.

49. The DPP argued that should this Court find in the alternative, however, that the High Court was entitled to place a stay on the

order for release.

Issues arising for determination in this Appeal

51. It follows that the appeal raises the following issues for determination:-

(i) Whether the High Court had the jurisdiction to conduct an Article 40.4.2 inquiry into the lawfulness of a detention

ordered by the Central Criminal Court.

(ii) Whether the High Court, satisfied that the detention of the respondent was unlawful, was permitted to place a stay

upon the order for release under Article 40.4.2 of the Constitution.

(iii) Whether s.4(5)(c)(i) of Criminal Law (Insanity) Act 2006, as amended required the Central Criminal Court, once

satisfied that the accused was unfit to be tried, to adjourn the proceedings in order to consider the evidence of an

approved medical officer adduced pursuant to s.4(6)(b) of the Act of 2006.

(iv) Whether the decision of the Review Board dated 27th April, 2012 replaced the order of the Central Criminal Court

dated 26th March, 2012 as the basis of the respondent’s continued detention.

Whether the High Court has jurisdiction to conduct an Article 40.4.2 inquiry into the lawfulness of a detention ordered by

the Central Criminal Court

52. The right to personal liberty is a longstanding and, as acknowledged by this Court in The State (Quinn) v. Ryan [1965] 1 I.R. 70,

it:-

“goes back a long way in the history of the law. Formerly it was said to have been enshrined in the Charter of Magna

Carta, and received further statutory recognition in the Habeas Corpus Act of 1849, and had a prominent place in the

Constitution of Saorstát Eireann, 1922, and, of course, now in our Constitution of 1937. Prior to the establishment of this

State the way in which a person sought to enforce his right to liberty in the Courts was governed by procedure then in

force.”

53. While the remedy of habeas corpus has deep roots in the common law, at issue in this case is the great remedy under Article 40.4

of the Constitution. Article 40.4 provides:-

“1° No citizen shall be deprived of his personal liberty save in accordance with law.

2° Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such

person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall

forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce

the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and

the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose

custody he is detained an opportunity of justifying the detention, order the release of such person from such detention

unless satisfied that he is being detained in accordance with the law.”

3° Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an

order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance

with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the

question of the validity of such law to the Supreme Court by way of case stated and may, at the time of such reference

or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High

Court shall fix until the Supreme Court has determined the question so referred to it.

4° The High Court before which the body of a person alleged to be unlawfully detained is to be produced in pursuance of

an order in that behalf made under this section shall, if the President of the High Court or, if he is not available, the senior

judge of that Court who is available so directs in respect of any particular case, consist of three judges and shall, in

every other case, consist of one judge only.

54. Henchy J. described the operation of the Article 40.4.2 procedure in The State (Royle) v. Kelly [1974] I.R. 259, where he stated

at p. 269:-

“The mandatory provision in Article 40, s.4, sub-s.2, of the Constitution that the High Court must release a person

complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a version of

the rule of habeas corpus which is to be found in many Constitutions. The expression ‘in accordance with the law’ in this

context has ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of the

test is to ensure that the detainee must be released if-but only if- the detention is wanting in the fundamental legal

attributes which under the Constitution should attach to the detention.”

55. The first issue arising for determination in this appeal is whether the High Court may grant an order pursuant to Article 40.4.2 of

the Constitution in circumstances where the order under which the applicant is detained has been made by the Central Criminal Court,

a court of equal jurisdiction.

Traditional Approach

56. There was a traditional understanding under the common law that habeas corpus is not, except in exceptional circumstances,

available to review the decision of a judge of co-ordinate jurisdiction: See Costello, The Law of Habeas Corpus in Ireland, Four

Courts Press, 2006.

57. Traditionally, the common law habeas corpus did not run to co-equal courts. In Re Aylward (1860) ICLR 448 it was held by the

Court of Common Pleas that it entertained “no doubt but that we should far transcend our authority, as Judges of the land, in

assuming to ourselves the power of overruling a decision of the Court of the Queen’s Bench.” It was held that the Court of Common

Pleas had no power to consider the proprietary of the decision of the Queen’s Bench. The above was quoted with approval by the

Queen’s Bench Division in Re Aikin (1881) ICLR 50 in which it was held that:-

“It should be remembered that the present case comes before it as a Division of the High Court of Justice, and there is a

comity between the several Divisions of the High Court of Justice exercising co-ordinate jurisdiction which ought to lead

us in the present case from questioning the procedure or practice of another Division.”

Constitutional Remedy

58. However, at issue is the constitutional right to habeas corpus governed by Article 40.4.2 of the Constitution of Ireland. The

wording of Article 40.4.2 of the Constitution is clear and unambiguous and grants to the High Court a broad jurisdiction.

59. While the issue of whether an inquiry under Article 40.4.2 may be taken against an order of the High Court, or the Central Criminal

Court, has not been addressed expressly previously, the courts have on occasion granted an order of habeas corpus in circumstances

where the order of detention was made by the High Court.

60. In The State (O.) v. O’Brien [1973] 1 I.R. 50, the applicant had been convicted of murder while a juvenile after a trial in the

Central Criminal Court. The High Court (O’Keefe P.) directed the release of the applicant on the grounds that the sentence imposed

was unlawful. This decision was subsequently appealed to the Supreme Court. Walsh J., upholding the decision of the High Court, held

that “the learned President of the High Court was correct in directing the release of the applicant.”

61. In The State (McDonagh) v. Frawley [1978] I.R. 131 the prosecutor was convicted and sentenced by the Central Criminal Court.

Although an application for an inquiry pursuant to Article 40.4.2 of the Constitution was dismissed by the High Court, and the

subsequent appeal dismissed by this Court, O’Higgins C.J. stated at pp. 136 - 137 that:-

“The stipulation in Article 40, s.4, sub-s.1 of the Constitution that a citizen may not be deprived of his liberty save ‘in

accordance with law’ does not mean that a convicted person must be released on habeas corpus merely because some

defect or illegality attached to his detention…. For habeas corpus purposes, therefore it is insufficient for the prisoner to

show that there has been a legal error or impropriety, or even that jurisdiction has inadvertently been exceeded. For

example, if a judge at a murder trial in which the accused was convicted were to impose a sentence of imprisonment for

life, instead of a penal servitude for life as required by the statute, the resulting detention would be imposed technically

without jurisdiction. But the prisoner would not be released under Article 40, s.4, for it could not be said that the

detention was not ‘in accordance with the law’ in the sense indicated. In such a case the court would leave the matter of

sentence to be rectified by the Court of Criminal Appeal; or it could remit the case to the court of trial for the imposition

of the correct sentence.”

The application was refused on the basis of the valid warrant in execution of a sentence, and not on the basis that the High Court

lacked jurisdiction to hear an Article 40.4.2 application in respect of an order of the Central Criminal Court.

62. Also, in O’Brien v. The Governor of Limerick Prison [1997] 2 I.L.R.M. 349, an application for habeas corpus was successful against

a sentence imposed by the Central Criminal Court.

63. Brennan v. The Governor of Portlaoise Prison [2008] 3 I.R. 364 was relied upon by the appellant in its submissions to this Court.

This case concerned five appeals in respect of five orders made by the High Court (Ó’Néill J.) refusing to grant an order for release

under Article 40.4.2 of the Constitution. The Article 40.4.2 application was grounded on the basis that none of the applicants were

lawfully brought before the Special Criminal Court and, as a result, the Special Criminal Court had no jurisdiction at any stage to deal

with them. In particular, the appellant placed reliance upon the following passages at pp.381-384:-

“No application was made under s. 29. Accordingly, the decision of the Court of Criminal Appeal was and is final and that

finality is prescribed by statute. Since the jurisdictional issue was included in the grounds of appeal and the particular

point on which Mr. O'Brien was successful in his case was considered and determined by the Court of Criminal Appeal, the

finality of the decision clearly covers that issue. Indeed normally where the route of appeal rather than judicial review is

pursued, the finality of the decision of the Court of Criminal Appeal will cover any potential ground of appeal including a

jurisdictional point which could reasonably have been included in the appeal even if it was not. Interestingly, that seems

to be the strong view of Mr. Kevin Costello as expressed in his excellent and helpful book The Law of Habeas Corpus in

Ireland (Four Courts Press, 2006). In his treatment of the use of Article 40.4.2 as a means of post-conviction review at p.

210 he says the following:-

‘It is implicit in the appellate scheme created by the Courts of Justice Act 1924 that the legislative intention was

that there be merely a single appeal to the Court of Criminal Appeal: instead of constituting a free-standing

renewable right of appeal available throughout the entire post conviction period an application for leave to appeal

must be based on an application submitted to the trial judge. It is unlikely that the legislature, if it intended there to

be a continuous, free-standing right of appeal, would have restricted the facility of appeal to an application made

to the trial judge (who might then be dead, or have retired)... A conviction may only be impeached on new grounds

in the circumstances described in s. 2 of the Criminal Procedure Act 1993. The principle of finality under s. 29 would

be subverted if a complaint could, notwithstanding a prior determination by the Court of Criminal Appeal, be

submitted under Article 40.4.2.’

I believe that that statement of the law is correct subject to the proviso that there may be very exceptional cases where

some fundamental jurisdictional defect is established in an Article 40 application which through nobody's fault had not

been raised or considered in the appeal processes. I make that proviso partly in the context that the learned author

criticises in no uncertain terms eight cited cases in which he claims the principle was breached by the High Court and/or

the Supreme Court. I do not propose to analyse those cases except to say that, on my perusal of them, they for the

most part appear to be distinguishable from this case.

I am satisfied that in no sense could this case be regarded as an authority against the sound principles put forward by Mr.

Costello [in The Law of Habeas Corpus in Ireland referred to above].

It follows therefore that I am of the view that the Article 40 application does not lie in this case, as the jurisdictional

issues have already been determined to the point of statutory finality.

In case there be any doubt, I should make it clear that nothing which I have said is intended in any way to question the

well established jurisprudence clearly expressed in The State (McDonagh) v. Frawley [1978] I.R. 131 that in certain

exceptional circumstances, but only in exceptional circumstances, will an Article 40 application lie in relation to post-

conviction detention. Disgraceful prison conditions is the oft cited example of a situation where habeas corpus does lie.”

64. The above decision was made where an appeal to the Court of Criminal Appeal had already been exhausted. Hence, the reliance

of Geoghegan J. on the academic commentary of Costello to the effect:-

"It is implicit in the appellate scheme created by the Courts of Justice Act, 1924 that the legislative intention was that

there be merely a single appeal to the Court of Criminal Appeal: instead of constituting a free-standing renewable right of

appeal available throughout the entire post conviction period an application for leave to appeal must be based on an

application submitted to the trial judge.”

65. In general, if there is an order of any court, which does not show an invalidity on its face, then the correct approach is to seek

the remedy of appeal and, if necessary, apply for priority. Or, if it is a court of local jurisdiction, then an application for judicial review

may be the appropriate route to take. In such circumstances, where an order of the court does not show any invalidity on its face,

the route of the constitutional and immediate remedy of habeas corpus is not the appropriate approach.

66. An order of the High Court which is good on its face should not be subject to an inquiry under Article 40.4.2 unless there has been

some fundamental denial of justice. In principle the appropriate remedy is an appeal to an appellate court, with, if necessary, an

application for priority. Thus, the remedy under Article 40.4.2 may arise where there is a fundamental denial of justice, or a

fundamental flaw, such as arose in The State (O.) v. O’Brien [1973] 1 I.R. 50, where a juvenile was sentenced to a term of

imprisonment which was not open to the Central Criminal Court.

67. In Costello, the Law of Habeas Corpus in Ireland, it is stated that “The institutional precedence of the Court of Criminal

Appeal over habeas corpus is long established.” (Four Courts Press, 2006, p. 207). In The State (Cannon) v Kavanagh [1937] I.R.

428, Maguire P. dismissed an application for habeas corpus where the applicant could appeal to the Court of Criminal Appeal. In the

The People (A.G.) v. Edge (1942) 76 ILT & SJ 199, an application for habeas corpus by a prisoner convicted of the offence of

kidnapping, which he subsequently established was not known to the law, was adjourned until the appeal in the case was determined

by the Court of Criminal Appeal. In Kelleher v. The Governor of Portlaoise Prison (30th October, 1997, Hamilton, O’Flaherty, Murphy

JJ.) while accepting that in exceptional circumstances the court could entertain a point under a complaint under Article 40.4.2 while

there was an appeal pending, this Court, in an ex tempore decision, dismissed the application. It was stated:-

“If there is any validity in the submissions made by [counsel for the applicant] in this regard the proper venue for the

determination of these issues is the Court of Criminal Appeal which the [applicant] has already applied for leave to appeal

against his conviction and sentence. It is submitted by [counsel for the applicant] that there are exceptional

circumstances in the case which would justify this Court directing the High Court to conduct a full inquiry into the

lawfulness of the detention… These are questions that occur regularly in the course of proceedings in the Criminal Courts

and before the Court of Criminal Appeal and in my opinion there is nothing exceptional about the circumstances of this

case.”

68. The existence of an appeal procedure capable of correcting errors is itself a part of the due course of law. In The State

(McDonagh) v. Frawley [1978] I.R.131, O’Higgins C.J. observed that when a person is detained for execution of sentence after a

conviction on indictment he is prima facie detained in accordance with law, and:

“The stipulation in Article 40, 5.4, sub – 5.1, of the Constitution that a citizen may not be deprived of his liberty save ‘in

accordance with law’ does not mean that a convicted person must be released on habeas corpus merely because some

defect or illegality attaches to his detention. The phrase means that there must be such default of fundamental

requirements that the detention may be said to be wanting in due process of law.”

69. In cases involving detention under the Act of 2006, orders of detention may be subject to appeal under s.9 of the Act to the

Court of Criminal Appeal which may consider the evidence and make any order which was open to the court of trial to make.

70. Consequently, the High Court has jurisdiction under Article 40.4.2 to inquire into the lawfulness of a detention ordered by the

Central Criminal Court, subject to the limitations as set out above.

Whether the High Court, satisfied that the detention of the respondent was unlawful, could place a stay upon the order for

release under Article 40.4.2 of the Constitution.

71. The next issue is whether the High Court, satisfied that the detention of the respondent was unlawful, could place a stay upon

the order for release under Article 40.4.2 of the Constitution.

72. There is well established jurisprudence that no stay could be put in place on an inquiry under Article 40.4.2. Walsh J. in The State

(Browne) v. Feran [1967] 1 I.R. 147 considered the process under Article 40.4.2 as laid down by the Constitution at p. 166 and

stated:-

“All successful complaints or claims are followed by a court order implementing the decision which upholds the complaint

or claim. Undoubtedly these constitutional provisions do not permit any qualification or stay upon the order for release,

but that is something which does not justify writing in a provision to the effect that the decision on the question of the

lawfulness of the detention cannot be the subject of an appeal.”

(emphasis added)

73. The existence of a power of the court to place a stay on an order for release pursuant to Article 40.4.2 of the Constitution was

also rejected in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550. In that case the prosecutor was not in

court, for reasons associated with his physical health, at the time of the making of the order for release, and as a result was not

immediately released. An application was made on behalf of the respondent for a stay on the order of release. Finlay C.J. stated at

p.570 that:-

“… having regard to the express obligation imposed by Article 40, s.4, sub-s.2 upon the High Court, unless satisfied as to

the legality of the detention of a person seeking an inquiry under that Article to order his release, that it would be

inconsistent with the Constitution for this Court to exercise any right to stay such an order …”

74. It was contended by the respondent, in the cross-appeal, that the ex tempore judgment of this Court in S.C. v. The Clinical

Director Jonathan Swift Clinic James Hospital (5th December, 2008, Hardiman, Kearns, Finnegan JJ.) is an authority which “disposes of

the issue” as to the legality of a stay on an order for release under Article 40.4.2 of the Constitution. In S.C. the applicant

successfully appealed the decision of the High Court to grant a stay on the order for her release. However, in that case this Court

emphasised that neither on appeal nor in the High Court was it disputed that the applicant had full capacity to institute the

proceedings and to instruct her lawyers. Further, it relied upon the fact that there was no evidence, or even a suggestion, that the

applicant was a danger to herself or to any other person. Thus, the Court held that it did not:-

“…consider it necessary, in those circumstances, to decide whether or not there may be ever a stay on an order for

release from psychiatric detention. It is sufficient to say firstly that the Trimbole decision suggests strongly that such

release must be immediate and, secondly, that evidence which only goes as far as the medical evidence of which we have

been informed could not conceivably form the basis for a continuation of a detention admitted to be unlawful.” (emphasis

added)

75. However, this Court has found that it was inappropriate to make a simple order for release on foot of a successful application in N.

v. Health Service Executive [2006] 4 I.R. 374. In that case the birth parents of a child, who was placed in the custody of the second

and third respondents with a view to adoption, sought custody of the child by way of proceedings brought pursuant to Article 40.4.2

of the Constitution. Satisfied that the interests and welfare of the child required the child to be returned to the custody of her birth

parents, the Court had regard to the issue of the immediate care and welfare of the child and considered it necessary “to address the

form of the order which the court should make.” The Court did not consider it necessary, or appropriate, for it to make a simple order

for release on foot of a successful application under Article 40.4.2 of the Constitution.

76. In N. v. HSE Murray C.J. stated at p.470 that the normal rule was that of immediate release and held that:-

“A successful application pursuant to Article 40.4 concerning an unlawful detention would normally lead to an order for the

release of the person concerned from the unlawful detention with no further order being necessary.”

(emphasis added)

He continued, however, to find that:-

“In this case there are special circumstances, namely the welfare of a infant of tender years, to be taken into account

when determining the manner in which effect may be given to the order of this court pursuant to Article 40….In my view

the court has jurisdiction, in the circumstances of a case such as this, involving as it does a minor of very tender age, to

make ancillary or interim orders concerning the immediate custody of such infant which are necessary in order to protect

her rights and welfare pending effect being given to the substantive order of the court.”

77. In coming to this view, Murray C.J. referred to the constitutional duty upon the courts to, as far as practicable, vindicate the

personal rights of the child. He held that where there is a transfer of custody of the infant, such as in N. v. HSE, the interests of the

child required that the transfer takes place “in a manner and circumstances which, as far as practicable, protects that welfare so

that any adverse effects on the child are obviated or minimised.” In the interests of the child, therefore, this Court in N. v. HSE made

an interim order authorising the child to remain in the custody of the second and third named respondents.

78. The Constitution describes the procedure in Article 40.4.2, concluding:-

“… and the High Court shall, upon the body of such person being produced before the Court and after giving the person in

whose custody he is detained an opportunity of justifying the detention, order the release of such person from such

detention unless satisfied that he is being detained in accordance with the law.”

79. There is no provision in the Constitution for a stay. Consequently, any order, such as was made in N. v. HSE, is made in the

process of controlling the release, for the purpose of protecting the person who is incapable of protecting themselves.

Whether s. 4(5)(c)(i) of the Criminal Law (Insanity) Act 2006, as amended, required the Central Criminal Court, once

satisfied that the accused was unfit to be tried, to adjourn the proceedings in order to obtain the evidence of an approved

medical officer adduced pursuant to s. 4(6)(b) of the Act of 2006

80. The next issue on this appeal is the interpretation of ss. 4(5)(c)(i) and 4(6)(b) of the Act of 2006.

81. The learned High Court judge (Hogan J.) held in his decision in F.X. v The Clinical Director of the Central Mental Hospital [2012]

IEHC 271 on the question of statutory interpretation that:-

“The present case is accordingly governed by s. 4(5)(c) of the Act of 2006 (as amended). Once Carney J. had determined

that the [respondent] was unfit to be charged, he was obliged by virtue of this sub-section to adjourn the proceedings.

The trial judge also had the option of either committing the [respondent] to either in-patient or out-patient care.

30. Where, as here, the [respondent] was committed to a course of in-patient treatment in the Central Mental Hospital,

the trial judge is then required to consider "the evidence of an approved medical officer adduced pursuant to subsection

6(b)." Section 4(6)(b) requires the approved medical officer to prepare a report within a time period stipulated by the

court on the question of whether the [respondent] is suffering from a medical disorder and is need of in-patient care or

treatment.

…

32. Section 4(5)(c)(i) of the Act of 2006 was amended by s. 4(e) of the Act of 2010 so that the reference in the former

sub-section is now to s. 4(6)(b). What was the effect of this change and what was its purpose? It is not clear that this

change has had any particularly significant effects. After all, the fact that s. 4(5)(c)(i) refers now to s. 4(6)(b) (as

opposed to s. 4(6) simpliciter) cannot really be regarded as having effected any really significant change, not least given

that s. 4(6)(b) refers back to s. 4(6)(a)("...the approved medical officer who examined the accused person pursuant to

[s. 4(6)(a)(ii)]"), so that it would seem that s. 4(6)(b) cannot be operated if the court does not make an order under s.

4(6)(a) for either in-patient detention and subsequent assessment or for out-patient assessment.

33. If that is so, then this suggests that the object of the legislative change was largely for reasons of presentational

clarity and accuracy. No evidence is capable of being adduced pursuant to s. 4(6)(a)- as distinct from s. 4(6)(b)- and by

making a change which makes this clearer, the Oireachtas must therefore be understood as wishing to be more precise

and accurate regarding the scope of the legislative references to the adducing of evidence in these circumstances.

34. This change nevertheless provides further evidence that the Oireachtas considered that this obligation was of some

importance. If this were not so, one might ask why the Oireachtas went to the trouble which it did in order to put this

matter beyond doubt. While one may readily accept that the Act of 2006 should be given a paternalistic interpretation

(see, e.g., by analogy the comments of McGuinness J. in Gooden v. St. Otteran's Hospital [2005] 3 I.R. 617 and those of

Kearns J. in EH v. Clinical Director of St. Vincent's Hospital [2009] IESC 46, [2009] 1 I.R. 774, albeit that these comments

were made in respect of the Mental Health Act 2001 and its predecessor), one cannot effectively re-write key procedural

safeguards prescribed by the Oireachtas under the guise of paternalism.

35. If we now return to the facts of the case, it is clear that Carney J. made an order on 26th March 2012 committing the

[respondent] to the Central Mental Hospital pursuant to s. 4(5)(c)(i). To this end, Carney J. heard the evidence of an

approved Medical Officer, Dr. Brenda Wright, prior to the making of the order. Dr. Wright confirmed in her evidence that

the applicant was seriously disturbed and required treatment at the Central Mental Hospital. As I have already indicated,

these findings are not in doubt and there is, one imagines, very little prospect that the [respondent] will quickly recover

from such a grievous illness.

36. The fact remains, however, that Carney J. did not consider the evidence of an approved medical officer adduced

pursuant to s. 4(6)(b), since this would have required the court to make an order providing for the detention of the

[respondent] at the Central Mental Hospital for an initial period of 14 days (s. 4(6)(a)(i)), his examination there by Dr.

Wright (s. 4(6)(a)(ii)) and the subsequent presentation of a report for the benefit of the Central Criminal Court (s. 4(6)

(b)). In other words, what the Oireachtas had prescribed as a two stage process seems to have been compressed

through inadvertence into a single stage.” (emphasis in original)

82. The High Court held that the Oireachtas had added a layer of protection for the benefit of an accused person found unfit to plead

and had established core protections for vulnerable persons. The learned High Court judge acknowledged that in this case compliance

with the two stage procedure would have been most unlikely to have altered the result. However, he held:-

“43. In summary, therefore, I am left with the inescapable conclusion that the [respondent’s] detention became unlawful

after the initial fourteen day period of detention, inasmuch as the section precludes the making of an order for indefinite

detention in the Central Mental Hospital (subject to the making of an order by the Review Board under s. 13 or s. 13A)

under s. 4(5)(c)(i) without the court first having heard the evidence of the approved medical officer adduced pursuant to

s. 4(6)(b). This failure is apparent on the face of the order of the Central Criminal Court.” (emphasis in original)

83. I agree with the statutory interpretation given by the learned trial judge, and would affirm the judgment of the High Court on this

aspect of the case.

Whether the decision of the Review Board of the 27th April, 2012, replaced the order of the Central Criminal Court dated the

26th March, 2012, as the basis of the respondent’s continued detention

84. Both the appellant and the notice party made submissions that, notwithstanding any finding of the Court as to the validity of the

order of the Central Criminal Court, that order had been superseded by the decision of the Fifth Review of the respondent’s detention

by the Board on the 27th April, 2012. However, in essence, this application for an inquiry pursuant to Article 40.4.2 arises from the

order of the Central Criminal Court on the 26th March, 2012, which has been superseded by subsequent orders of the Central Criminal

Court. A considerable time has elapsed since then and, in all the circumstances of the case, it is neither necessary nor appropriate to

address this issue.

Decision

85. In this case, while counsel referred to the fact that the matter might be moot when seeking a date for the hearing, there was no

legal argument on the issue of a moot appeal.

86. However, the claim under Article 40, and the cross appeal are moot as the orders of Hogan J. of the 3rd and the 8th July, 2012,

were superseded by orders of Sheehan J. of the 10th July, 2012, and Carney J. of the 16th July, 2012 respectively.

87. In this appeal the issue as to the interpretation of the statutory powers under s. 4(6)(a)(i) and s. 4(6)(a)(ii) of the Act of 2006

had given rise to conflicting judgments in the High Court. Consequently, it was important that this conflict be resolved by the Court.

88. The Central Criminal Court on the 10th and 16th July, 2013, applied the two stage process described by Hogan J. in his judgment

of the 3rd July, 2012, so no order is needed on this issue.

89. The Court raised concerns as to the appropriate action of counsel in taking instructions from a person whom it was accepted

needed to be detained in the Central Mental Hospital, without addressing the issue of that person’s capacity.

90. In all the circumstances now pertaining, no issue of habeas corpus arises, thus no issue of a stay arises. Further, as the Central

Criminal Court applied the two-stage process prescribed by Hogan J. when it made its decisions of the 10th and 16th July, 2012, no

issue needs to be determined in relation to the earlier decision of the Central Criminal Court. Thus, I would dismiss the appeal and the

cross appeal.