Unfitness to Plead Consultation Responses - Law Commission ...

succeed in doing so, but at the cost of two fractured
skulls, one inflicted by each of the two. Both are charged
with the s 18 offence of causing grievous bodily harm
with intent, and each wishes to contend that he was
acting in reasonable self defence, saying that he thought
that he was about to be stabbed and receive serious
injury. The jury will be directed by the trial judge that it
is only if they find that the blows were not inflicted in
lawful self defence that they need to go on and consider
the specific intent under section 18. E is fit to plead, but
F is not. If the state of mind of F is excluded from
consideration, then he will be deprived of a good
defence which addresses whether there was an
unlawful act, not whether he had the requisite mens
rea/degree of fault.
(d) In the case of certain common sexual offences the belief of the
accused is relevant to whether there was a crime at all.
(i) For example in the case of sexual activity with a child
aged between 13 and 16 under section 9 of the Sexual
Offences Act 2003, the prosecution must prove against G
a sexual touching of H
which was intentional
and that G did not reasonably believe that H was
over 16.
(ii) If the evidence is not such that a jury finds itself able to
be sure that G lacked such a reasonable belief, then it
would be anomalous, and unfair on the unfit accused, if
the jury could not determine in the section 4A
procedure that the prosecution had failed to prove its
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