Unfitness to Plead Consultation Responses - Law Commission ...

7. It is objectionable for a rule of law to deprive a Defendant, albeit one
unfit to plead, of the protection afforded all citizens by the principle that
a deprivation of liberty consequent on criminal conduct only occurs if
the Prosecution has proved all the requisite elements of an offence.
8. Section 4A, as currently enacted, undoubtedly involves a finding that a
Defendant has committed a criminal act (however defined), and where
such a finding is made, results in a significant deprivation of liberty,
albeit to varying possible degrees. It would surely be illogical to insist
that as against accused persons of sound mind, the Prosecution had to
disprove a defence to the criminal standard, whereas in the case of the
especially vulnerable and mentally ill, the burden lay on the Defendant
to show that there were grounds for acquitting him or her. Section 4A as
currently enacted does not shift the burden of proof. The test is “
whether (the jury) are satisfied, as respects the count or each of the
counts on which the accused was to be or was being tried, that he did
the act or made the omission charged against him as the offence.” That
puts the legal and evidential burden on the Prosecution.
9. Paragraphs 6.129 and 6.130 of the Consultation Paper as currently
drafted imply a shifting of the burden of proof. The current proposals
would also mean that in the arson example cited above, if the
prosecution failed to prove recklessness , then A would be acquitted and
suffer no penalty, while B would be “ acquitted by reason of mental
disorder” (see consultation paper 6.136.) and would suffer a deprivation
of liberty, even though the case against them was identical, and even
though the prosecution could not show R v G recklessness against him.
10. The nettle must therefore be grasped that the new replacement
procedure must reflect the usual incidence of the burden of proof. It
would then be for the prosecution to prove (a) that the offence was
committed by the Defendant, and (b) that no grounds existed for an
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