Unfitness to Plead Consultation Responses - Law Commission ...

4. Antoine probably reflects a reasonable interpretation of section 4A as
enacted 2 . However the narrow definition of “act” in section 4A does not
accord well with the complexities of the offences which come before the
courts. While I note the examples chosen in paragraph 6.28-29, there are
examples of much more commonplace offences where the traditional
actus reus/mens rea or conduct/fault distinctions can be hard to apply.
(a) Criminal Damage/Arson. Arson is an area where issues of
unfitness to plead and/or insanity are very likely to arise. The
law now regards it as wrong in principle to criminalise those
committing the offences of criminal damage or arson where the
Defendant would be shown to be reckless on an objective test,
but not shown to be so on a subjective test: see R v G [2003]
UKHL 50. Criminality now only occurs where the Defendant is
reckless, assessed on a subjective basis. If one applies Antoine
without qualification, then the mindset of the accused is
irrelevant. If a person who is stupid or thoughtless (but fit to
plead) is tried, and would be acquitted and free from any loss of
liberty if one applied the subjective test, why should a person
who is unfit to plead, and therefore ill rather than dim, be in a
worse position ?
(b) Suppose A and B are each charged with arson, reckless as to
whether life would be endangered, in circumstances where each
has set light to scrap paper in a wastebasket in his own flat, and
which got out of control and then spread to the flat next door.
The prosecution cannot prove any crime against either A or B (it
was after all in each case his own paper in his own wastepaper
basket) unless it can prove that he had the requisite intent or the
2 See also Attorney-General's Reference (No. 3 of 1998) [1999] 2 Cr.App.R. 214 and R. (Surat Singh)
v. Stratford Magistrates' Court [2008] Cr.App.R. 2
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