Unfitness to Plead Consultation Responses - Law Commission ...

purposes of s. 37 [see MHA 1983, s. 2A and 2B). Supervision orders, by
contrast, are available as a disposal under the Criminal Procedure (Insanity)
Act 1964, s. 5(2) and Sch. 1, and are available to any defendant found to be
unfit and have done the act (there is no age restriction or mental disorder
requirement, although medical treatment can be part of the order) and can
include requirements for medical treatment or residence and can be overseen
by a social worker or a provider of probation services. Lastly, there is no
option for an absolute discharge in the magistrates’ courts. This means that
youths, who should be entitled to greater protection under the law are, in fact,
discriminated against. Youth Courts hear more serious charges as they are
considered the most appropriate venue for trials of youths and have
sentencing power of up to 2 years detention and training order. In the current
system there is no community option available if an under sixteen year old is
found ‘unfit to plead’ and to have done the act in the youth court, nor is there a
possibility of an absolute discharge.
Secondly, there are difficulties with the current system of hospital orders and
supervision orders in the Crown Court, with the possibility of no entity taking
responsibility for the supervision order (see text box below).
Thirdly, there needs to be a robust alternative to supervision order so the
judiciary can feel, when handing down a disposal for a defendant who has
been found to have done the act but a hospital order is not appropriate, that
suitable and appropriate work and treatment is being undertaken with that
individual – perhaps an intensive supervision order, in the same vein as an
intensive referral order is now available.
Case Study
BP a 17 year old youth was charged with a Grievous Bodily Harm with
Intent, contrary to s.18 of the Offences Against the Person Act. He was
found unfit to plead due to a severe learning difficulty but to have done the
act. A hospital order was not appropriate as he was not found to have a
treatable mental disorder. His local CAMHS service would not take him on
a supervision order under the CPIA as he did not have a treatable mental
disorder. His local learning disability project would not take him on a
supervision order as they did not have forensic capability. His Youth
Offending Team would not take him on a supervision order as he turned 18
during the course of the proceedings. Probation would not take him on a
supervision order as he would not be able to understand and participate in
their programs. Eventually after many months on stringent bail conditions
(all of which he complied with) BP was given an absolute discharge as the
Court felt it had no other options available
Just for Kids Law
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