Unfitness to Plead Consultation Responses - Law Commission ...

such insanity may have been or may be found not guilty of such offence, and it
may be dangerous to permit persons so acquitted to go at large: . . ."
The problem for the Courts has been the same for centuries.
The treatment of psychiatric disorders has, however, advanced. And the involvement
of the psychiatric profession in the resolution of the problem has increased.
The justification for CP proposal (9) is said to be protection of the public against an
accused who may be “dangerous” [CP 6.138 final sentence].
In the passage from Antoine quoted at paragraph CP 6.17 Lord Hutton did not use the
word “dangerous”.
It is perhaps unnecessary to create a new power in criminal proceedings when a
power to detain the dangerous, mentally disordered, acquitted, accused already
exists.
The decision to detain at the proposal (9) stage is more psychiatric than judicial.
The Commission has already recognised the importance of the psychiatric input at
the proposal (7) stage.
The Court could not arrive at the proposal (9) stage without having had the opinion of
two registered medical practitioners, at least one of whom is duly approved under
section 12 of the Mental Health Act 1983, at both the unfitness stage [CP paragraph
5.21 penultimate sentence] and at the proposal (9) stage [CP 6.148 penultimate
sentence] .
And even at the proposal (9) stage the Judge cannot make an order under section 37
(2) (a) (i) Mental Health Act (1983) without the further evidence of two registered
medical practitioners.
In the notional proceedings to this point the Judge’s inquiry has concentrated on :
(i) the present ability of the accused to deal with the issues at trial
(ii) the facts surrounding the alleged offence(s), which may have occurred
many years before the current proceedings; and
(iii) the accused’s mental state at the time of the alleged offence(s)
Whereas, the psychiatrists have considered the whole medical history - (iii ) and the
aetiology of that disorder, his present condition, the aetiology thereof and the
appropriateness of treatment in the future - section 37 (2) (a) (i) Mental Health Act
1983.
In short, the notional judicial inquiry has concentrated on specific issues arising at
two points in time. Whereas the psychiatrists in arriving at their diagnosis(es) and
opinions will have had to consider more of the accused’s medical history and they
will also have been required to look into the future.
The material part of section 3 Mental Health Act 1983 provides :