Unfitness to Plead Consultation Responses - Law Commission ...

acquittal save those arising from a mental disorder. That then permits
the court to distinguish between
(a) offences which would have been proved against the Defendant
had he not been suffering from a mental disorder (e.g. arson
where the subjective criterion prevents him appreciating the
consequences of his acts)
(b) offences which would have been proved against the Defendant
whether or not he was suffering from a mental disorder (i.e. he
may be unfit to plead, but his mental disorder did not affect
either his actions or intentions at the time of the offence). One
may note that a similar causation test now appears in the new
statutory provisions dealing with the statutory defence to
murder of diminished responsibility 4 ;
(c) offences which would not have been proved against the
Defendant in either case e.g. offences of alleged violence where
the prosecution have failed to show an unlawful act, or sexual
cases where evidence shows that the prosecution would have
failed to establish an absence of reasonable belief.
11. There seems to be no compelling reason why the jury cannot determine
all three questions, provided the relevant statutory provision is drafted.
The questions posed are no more complicated than those asked of a jury
in a case where issues of diminished responsibility arise, and much less
so than in many cases of “ loss of control” under sections 54-55 of the
Coroners and Justice Act 2009 5 . I do not accept that, if that approach is
adopted, such prejudice will be caused to the Defendant that s/he could
not receive a fair trial. That potential for psychiatric evidence to be
before a jury even though the carrying out of the offence is denied is
4 See the new section 1(1B) of the Homicide Act 1957, enacted by the Coroners and Justice Act 2009
5 Albeit that the complexities of summing up and jury consideration inflicted by that legislation as
enacted are to be seen as examples of what to avoid rather than of what to achieve.
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