Unfitness to Plead Consultation Responses - Law Commission ...

Provisional Proposal 8: The present section 4A hearing should be replaced
with a procedure whereby the prosecution is obliged to prove that the
accused did the act or made the omission charged and that there are no
grounds for an acquittal. (Paragraph 6.140)
We agree with proposal 8 and the requirement to clarify the procedure around section
4A hearings.
In summary we understand the piecemeal manner at which section 4A hearing has
somewhat evolved as a result of legislation and case law such as Antoine. Therefore
instead of providing clarity this has muddied the waters of certainty, in addition to the
debate surrounding exclusion of Art 6 in such circumstances. We understand the
requirement for a distinction between section 4A hearing and a trial. The modus
operandi of a section 4A hearing sits distinctly outside of the norms of criminal
proceedings. It was constructed as a mechanism within which to provide a just system to
protect the accused, as well as the public. There has been a classification debate as to
whether section 4A hearings are criminal or civil proceedings. We agree with the CP and
the view of Professors Mackay and Brookbanks,that in fact section 4A hearings are by
virtue of their substance and form, a “hybrid procedure” 12
However there have been inherent complications vastly due to the difficulty with certain
offences in separating the fault element from the conduct element of the act or omission.
The CP set out its reasoning in this regard with clarity. We agree with the CP in its
identification of the current problems that the present system of section 4A hearings
creates, namely: in consistent, arbitrary and incoherent decisions. In relation to new
criminal offences the separation of the mental element from the external element is
problematic when the external elements of an offence namely, the conduct and fault
element can be virtually impossible to separate. We agree that as part of these reforms
12 CP, (2010), p 120, para 6.25.
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