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Spring Seminar—Galway
Society of Young Solicitors
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
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
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