Unfitness to Plead Consultation Responses - Law Commission ...

this issue in relation to the conduct and fault elements needs to be rectified, so that a
section 4A hearing is fit to carry out the function and task it was constructed to do.
The CP outlines five potential options; the fifth being the above proposal. We would
submit that the CP have correctly identified the most workable and just option in the
circumstances. This option balances as best it can in the circumstances, the need to
protect the accused, public interest, whilst also providing a solution to the dilemma
posed by Antoine and allowing for Art 6 protection to be afforded to the accused.
We therefore briefly address the other four options and why we view them as unviable.
Option 1, effectively seeks to maintain the status quo in relation to section 4A hearings,
which while it currently functions, for the reasons outlined above would be unsatisfactory
in the context of reforms to other aspects of unfitness to plead.
Option 2 which is to adopt the recommendations that the Butler Committee, which
effectively would mean that the accused would have a “special hearing” akin to a full trial
as all the elements of the offence are raised. The issue in relation to potential acquittal
would not only leave the accused without assistance of treatment but also is not in line
with the interest of public safety. This option whilst it may have offered some assistance
at the time it was written, is now outdated.
Option 3 proposes that section 4A hearing should be abolished altogether, which whilst
is the most simple option of the five, it is not the fairest in that it subjects an unfit
accused to plead at a full trial. It our view this option would be reverting into the past and
not be in line with the rest of the proposals for reform laid out in the CP.
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