Unfitness to Plead Consultation Responses - Law Commission ...

CONSULTATION RESPONSE TO
THE LAW COMMISSION CONSULTATION PAPER NO 197
“UNFITNESS TO PLEAD”
By HH Judge Andrew Gilbart QC
Honorary Recorder of Manchester
1. This response is concerned with the question of how one proceeds once
there is a finding of unfitness – i.e. the issues addressed in section 6 of
the Consultation Paper.
2. The starting point must be that the State should only have the power to
impose a constraint on liberty as a result of an allegation that the
accused has committed a criminal act, where it has been shown by the
State 1 that the accused has committed the crime in question.
3. While the traditional approach of English and Welsh Law is to divide
the elements into the act (actus reus/conduct) and the intention (mens
rea/fault), that distinction is not easy to apply to some situations which
may arise which can affect the question in issue. But at the same time
one must be alive to Lord Hutton’s observations in Antoine [2001] 1 AC
340 about the need for protecting the public from harm inflicted by
those who would have been convicted of an injurious act if committed
with the requisite mens rea. I do suggest however that the clarity of the
distinction between conduct and fault elements of an offence is more
apparent than real, and varies from offence to offence.
1 There are almost certainly no, or almost no, cases where a private prosecution involves issues of
unfitness to plead
1