Unfitness to Plead Consultation Responses - Law Commission ...

case that a crime was committed. Suppose for example
that there was evidence from a number of witnesses that
H had held herself out to G and others as being 17, and
that G had believed that she was 17. It would be
obviously unjust if he were liable to an interference with
his liberty without that topic being explored at the
section 4A stage. However the current section 4A
would suggest that he would be liable to being the
subject of a hospital or supervision order or other
disposal. (One can exclude from the scope of the
anomaly those cases where his belief is unreasonable
and related to his disorder)
5. The appeal in Antoine was not concerned with a case where there could
be an issue over an ingredient which has to be proved to found a
conviction: it was concerned with whether a partial defence (where the
burden of proof lies on the defence 3 ) could succeed, which by definition
could only be considered if the jury were satisfied that all the other
relevant ingredients were present – i.e. they were bound to convict of
murder unless the statutory defence was proved. However the general
observations approved there means that the test under s 4A applies to
all types of offence, whether there is a risk of injury to the public or not,
and whether the burden of proof lies on the Prosecution or Defence..
6. But there may also be problems even if one deals with aspects of a crime
which fall much more readily into the “mens rea” description. Take the
example of the offence of “simple” theft (where, it should be noted, risks
to the safety of the public as per Antoine will be unlikely to occur);
(a) Suppose one is dealing with three Defendants J K and L, each
charged with stealing some clothes from M, which clothes were
3 Section 2(2) Homicide Act 1957
5