John Gallagher and mental health law

It has been reported this morning that John Gallagher has handed himself in to the Central Mental Hospital.
The Gallagher saga has had major implications for mental health law in Ireland over the years.
Now that he is back in the CMH, his case may well be reviewed by the Mental Health (Criminal Law) Review Board.

Gallagher was found guilty but insane on two murder charges in 1989.
The verdict at the time was governed by the Trial of Lunatics Act 1883.
The 1883 Act was probably in breach of article 5 of the European Convention on Human Rights, as it provided for automatic detention on an insanity verdict and because it failed to provide for reviews of detention. However, the ECHR did not become part of domestic law until 2003. It was reported in 2005 that Eamonn Daly was challenging the compliance of the 1883 Act with the ECHR.

Gallagher brought various challenges to his detention in the Central Mental Hospital.  In Application of Gallagher (No.2) (1996) the High Court found that he no longer had a mental disorder but had a personality disorder.  The court upheld his continuing detention on the basis of a personality disorder, and in spite of lengthy ministerial delays in acting on recommendations of a non-statutory review committee.
The court emphasised that he could not be detained on grounds of risk alone as this would be preventative detention.

The Criminal Law (Insanity) Act 2006 established the Mental Health (Criminal Law) Review Board.
This board has three members and reviews the detention of those detained on insanity verdicts, even if their trials took place prior to 2006.  Reviews take place every six months.
The board has various powers, e.g. to order that the person be released or conditionally discharged.
If the person was conditionally discharged (from 2006 to 2010), the Board did not have the power to recall them if they broke the conditions of their discharge. As a result, the Board had a policy of never ordering a conditional discharge.

There were two High Court cases concerning the powers of the Review Board - J.B. v Mental Health (Criminal Law) Review Board [2008] IEHC 303; High Court, Hanna J., July 25, 2008  -  www.bailii.org/ie/cases/IEHC/2008/H303.html - and L. v Kennedy [2010] I.E.H.C. 195 High Court, Peart J., May 5, 2010  http://www.bailii.org/ie/cases/IEHC/2010/H195.html.

In L. v Kennedy, Peart J. did not order that Mr. L. be released (as the case was a habeas corpus application under article 40.4 of the Constitution) but hinted that if it had been a judicial review case he might have quashed the review board's decision.

The two cases rely heavily on Johnson v UK, an ECHR case.  However, it is arguable that they fail to focus adequately on the delay aspect of the Johnson case.  In addition, there is little discussion of the Irish constitutional principle against preventative detention.

The 2006 Act was amended by the Criminal Law (Insanity) Act 2010, which provides a power of recall if a patient discharged conditionally breaches the conditions.