IHRC welcomes High Court Judgment in Fitness to Plead Case in which it acted as Amicus Curiae

The Irish Human Rights Commission (IHRC) has today welcomed the significant Judgment of the High Court in a case involving a potentially unfair prosecution faced by a person with a mental disability. The case is important in that it recognises that a person with a mental disability should not be unfairly disadvantaged when they face prosecution compared to people who have no such disability.

The case concerns a person with a significant mental disability facing criminal prosecution, who because of his disability had his case automatically moved from the District Court to the Circuit Court, where he would face a higher sentence. The case was heard over two days, from 22-23 November 2011 and the IHRC was permitted by the Court to make written and oral submissions as amicus curiae. The IHRC was represented by pro bono counsel.

Welcoming the Judgment today, IHRC President Dr Maurice Manning said:

"This reasoned Judgment by the High Court makes it clear that the protection of equality under the Constitution extends to people with disabilities in the criminal justice system and that both the legislature and the Director of Public Prosecutions must pay special care when dealing with disabled citizens. The IHRC was pleased to act as amicus curiae in this case and to draw the Court’s attention to the relevant principles under Constitutional and international law".

The IHRC’s submissions drew the Court’s attention to the relevant principles under the Constitution and the European Convention on Human Rights on the rights of people with disabilities, including the right to non-discrimination on the basis of their status. It also drew the Court’s attention to the principles which arise under the UN Convention on the Rights of Persons with Disabilities, soon to be ratified by Ireland.

In its Judgment in B.G. v District Judge Catherine Murphy, the Director of Public Prosecutions and the Judge of the District Circuit (No.2), Ireland and the Attorney General (Notice Parties) and the Irish Human Rights Commission (Amicus Curiae), the High Court declared that the Applicant should not face trial under the Criminal Law (Insanity) Act 2006 if he would receive a higher sentence following a guilty plea than he would otherwise receive in the District Court.

In his ruling, Mr Justice Hogan held that the application of the 2006 Act to the Applicant in this case, could result in him facing a higher penalty than a similar person who did not suffer from a mental disability and that were this to happen it would violate the Constitutional principle of equality. The Court held that this "unforeseen consequence" of the drafting of the law, "violated the constitutional requirement of equality before the law as required by Article 40.1 [of the Constitution]".

During oral arguments, all parties accepted that the 2006 Act was an enlightened piece of legislation designed to address the vulnerabilities of people with disabilities. Noting this, the Court held that the application of the law to the applicant resulted in an unintentional but unjustifiable anomaly ". Rather than strike down the relevant section of the Act – Section 4 – as being unconstitutional, the Court made a declaration to halt the injustice in the case "pending the appropriate repair and overhaul of the legislative scheme at some stage in the future by the Oireachtas".

The full text of the Court’s Judgment and the IHRC’s written submissions are now available on the IHRC’s website www.ihrc.ie.


For further information, please contact:
Fidelma Joyce Irish Human Rights Commission

Tel: 01 8589601 Mobile: 087 7834939


Notes to the Editor

Under section 8(h) of the Human Rights Commission Act 2000, the IHRC may, at the discretion of the High Court or the Supreme Court, appear as amicus curiae in proceedings that involve or are concerned with the human rights of any person.

Section 2 of the Human Rights Commission Act, 2000 defines "human rights" to include those rights conferred on or guaranteed to persons under the Constitution and under any agreement, treaty or convention to which the State is a party.

The IHRC first appeared as amicus curiae before the Supreme Court in April 2005 in the case of Dublin City Council v Fennell which involved issues regarding the interpretation and effect of the European Convention on Human Rights Act. Since then it has regularly been granted liberty to appear before the Supreme Court and High Court.

The IHRC was put on notice of these proceedings in October 2011 pursuant to section 6(1) of the European Convention on Human Rights Act 2003 which requires certain human rights cases to be notified to the Commission.

Michael Lynn BL and Colman Fitzgerald SC acted for the IHRC on a pro bono basis.

The statutory provisions which fell for consideration under the Constitution and European Convention on Human Rights in this case were Section 13(2) of the Criminal Procedure Act 1967 as amended, Section 2 of the Criminal Law (Rape) (Amendment) Act 1990 (as amended) and Section 4 of the Criminal Law (Insanity) Act 2006 as amended.

As the legislation required the case to be sent forward from the District Court to the Circuit Court for trial, the question before the High Court was whether the individual faced more severe penalties as a consequence, if convicted; if so, whether this was on the basis of his disability and if so; whether this would violate the guarantee of equality under Article 40.1 of the Constitution. It found in the affirmative: there was a violation of Article 40.1, the court noting that "objectively speaking, there [was] no constitutional justification" for the difference in treatment.

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