The Gazette 1974

Spring Seminar—Galway Society of Young Solicitors

established that, at the time of committing the act, the accuscd was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong. In Hayes's case (1967), the first inroad into the McNaghten Rules was laid by Henchy J. who directed the jury to return a verdict of "Guilty—but Insane" if they were satisfied that, at the time of attacking his wife with a hatchet, the accused was so affected by ill- ness that he was unable to restrain himself. Kenny J. followed this direction in the Coughlan case. The Supreme Court, per Griffin J., in Doyle v Wicklow Co. Council (see Gazette, p. 117), has followed this, by stating that the McNaghten Rules do not provide the sole or exclusive test of determining the sanity or in- sanity of an accused. Infancy At the age of 7, a boy or girl in the Republic is in theory capable of being deemed fully responsible at law for any crime committed. The former law was very strict, and hanging of children under 16 was only abolished in 1908; here since 1941 it is not lawful to hang anyone under 17. There is, however, a rebuttable presumption that anyone between 7 and 14 is incapable of committing a crime, but it is for the prosecution to rebut the presumption of doli incapax. However, in ordinary cases, from the nineteenth cen- tury, it has become clear that the raising of the insanity plea would not lead to an acquittal, but rather to a liability to undergo an indeterminate sentence—deten- tion at pleasure—in special mental hospitals. The Jud- ges now know only too well that a finding of insanity means that administrative arrangements can be made to cope with people who have manifested an intention to act dangerously. In People (A.-G.) v Messitt (1972) I.R. 204, Kenny J., in delivering the judgment of the Court of Criminal Appeal, said : "While the onus of establishing insanity rests on the accused, it is in our view the duty of the prosecution to give any evidence they have of which the jury might reasonably come to the conclusion that the accused was insane." In this case there was evidence available not given to the jury which established that the accuscd was an aggressive psychopath who was prone to episodes of uncontrollable violence. There are four appendices to the lecture. Mr. Ian Hart, B.A., psychologist attached to the Economic and Social Research Institute, delivered the second lecture on "Modern Views on Penal Institu- tions". An institution is an impersonal social process designed to meet a collective need and imposing obli- gations as much on those using the service as on those administering it. Insofar as it is impersonal, penal imprisonment is a form of "civilised revenge"—it is difficult to achieve any rehabilitation in an atmosphere where a prisoner becomes less than human. We need institutional measures providing a wide 214

There was an attendance of 150 members at the eighteenth seminar of the Society of Young Solicitors which was held in the Great Southern Hotel, Galway, on Saturday, 27th, and Sunday, 28th April 1974. The first lecture was delivered on Saturday by Mr. Niall Osborough, LL.M., Lecturer in Law, University College, Dublin, on "Criteria of Criminal Responsi- bility". He stated that the Criminal Law as such, can- not be made to ensure that the actual wrongdoer will in fact be made to answer, either due to (1) the wrong- doing being undetected, or that (2) a prosecution may not follow a detected wrongdoing, or (3) that a Court may enter a finding of "not guilty" against a man who was in fact responsible. The function of the Criminal Law Rules is thus to help delineate the circumstances in which the wrongdoer is in theory to be treated as answerable for his wrongdoing. These rules exert an important influence over the whole process of Criminal Law. The rules on criminal responsibility necessarily change from time to time. It is proposed to examine the defences of self-defence, insanity and infancy. Self-defence In this connection, it is proposed to examine the cases of Bernadette Devlin v Armstrong (1971) N.I. 13, and The People (A.-G.) v Dwyer (1972) I.R. 416. Miss Devlin had been charged with riotous behaviour and incitement to riotous behaviour in the Bogside of Derry. Her essential defence was a plea of justification—i.e. that she had acted as she had because she believed honestly and reasonably that the police, on account of previous incursions were about to assault people and damage property in the Bogside. The Court of Appeal dismissed this argument, mainly on the ground that there was no justification in law to incitement to a crime, which is itself considered unjustifiable, as the dangers anticipated should be specific and imminent, whereas Miss Devlin's intentions were too aggressive and too premature. The force used had to be reason- able, and the throwing of petrol bombs was an un- warranted reaction. The argument that there existed a collective right of self-defence arising out of some collective necessity was also rejected. In Dwyer's case, the Supreme Court followed the Australian case of R. v Howe, and substituted a verdict of manslaughter for murder. It was held that a person, who has a right to protect himself from unlawful attack does not commit any crime if lie uses as much force as is necessary for this purpose. If he uses more force than is necessary, his act is unlawful and, if he kills, the killing is unlawful. If, however, his intention in doing the unlawful thing is primarily to defend himself, he should not be held to have the intention to kill and is thus guilty of manslaughter. Insanity The most celebrated test of insanity are the McNaghten Rules of 1843, by which it had to be clearly