Unfitness to Plead Consultation Responses - Law Commission ...

Provisional Proposal 10: The further hearing should be held at the
discretion of the judge on the application of any party or the representative
of any party to the proceedings. (Paragraph 6.152)
Provisional Proposal 11: The special verdict should be determined by the
jury on such evidence as has been heard or on any further evidence as is
called. (Paragraph 6.152)
We agree with proposals 10 and 11 in relation to special verdicts.
In summary our view is in line with the CP’s argument for a further hearing to be held at
the discretion of the judge. We agree with whilst there is a cost benefit argument for
using the same jury to determine both issues on the same occasion, the question of
whether they are best qualified to make this decision is also a relevant consideration.
Our view would be that in fact procedurally the two questions would conflict with each
other, if they were to be thought about concurrently. Evidentially, having a jury would
also be problematic, as it could lead to risk of prejudice from evidence given by the
medical practitioners in relation to unfitness. The two stage approach suggested
provides a role for the jury to effectively signpost possible issues and whilst also offering
the accused a route to acquittal because of mental disorder. It also provides clarity in
relation to mental state at the time of the offence and unfitness to stand trial. The options
raised within paragraphs 6.75 – 6.79 have been considered and we do not think that in
the structure of the proposed reforms that would be the best option with which to move
forward.
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