Unfitness to Plead Consultation Responses - Law Commission ...

Option 4 which looks at reform to mirror the Scottish procedure, which revolves around
lowering the burden of proof. This is useful in relation to the issue that presently faces
section 4A hearings with respect to clarity and the problems encountered with separating
conduct and fault elements. We agree with the rationale set out in the CP that at present
it would not be in the interests of our client group for there to be a lower burden of proof.
At present we have no additional proposal to offer the Law Commission in relation to an
alternative option on this matter.
From the perspective of our client group having clarity and consist decision making
provides for fairer treatment. Legal professionals also like to have a clearer
understanding of the outcome of section 4A to give more effective advice to their clients.
Provisional Proposal 9: If the accused is acquitted provision should be
made for a judge to hold a further hearing to determine whether or not the
acquittal is because of mental disorder existing at the time of the offence.
(Paragraph 6.140)
We agree with this proposal.
In summary our position essentially follows on from our response to proposal 8. Where
the prosecution have proven all the elements of the offence there should be a further
determination by virtue of judicial discretion. This is only in the interest of public safety
but minimising the accused being wrongly subject to a disposal but allowing for a
determination where necessary to consider whether or not the acquittal is due to a
mental disorder existing at the time of the hearing. From our clients’ perspective, this
allows for a disposition where the accused may eventually receive further assistance
through accessing treatment for the mental disorder he or she may still exhibit.
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