Unfitness to Plead Consultation Responses - Law Commission ...

UNFITNESS TO PLEAD
Response by the Law Reform Committee of the Bar Council
and the Criminal Bar Association of England and Wales
own interpretation of the case cases that have shaped existing rules relating to unfitness
to plead.
35. We begin with Rex v Steel
(1787), 46
.... the prisoner was indicted at the Old Bailey for larceny, and upon being
arraigned she stood mute. A jury, duly sworn to inquire whether she stood
mute ute of malice or by the visitation of God, found that she stood mute by
the visitation of God God...the judges....were of opinion....that that the finding that
the prisoner was mute by the visitation of God was not an absolute bar to
her being tried upon the indict indictment, ment, and that a plea of not guilty should be
entered for her. The prisoner was accordingly tried and convicted.
36. By 1736, (the the date of publication of Hale’s treatise treatise, Historia Placitorum Coronæ,
i.e., The History of the Pleas of the Crown Crown) it was open to a judge to empanel a
jury to determine whether the accused was unfit to stand trial trial. Where a person
became insane after the commission of a capital offence by him, he would not be
tried, judged, or executed. . But there appears appears, at that time, to have been
species of insanity [emphasis added] added]: 47
Historia Placitorum Coronæ,
a judge to empanel a
. Where a person
he would not be
to have been various
If a man in his sound memory commits a capital offence, and before his
arraignment he becomes absolutely mad, , he ought not by law to be
arraigned during such his phrensy, but be remitted to prison until til that
incapacity be removed. The reason is, because he cannot advisedly plead
to the indictment.
And if such person after his plea, and before his trial, becomes of non-
sane memory, , he shall not be tried; or if after his trial he become of non
sane memory, he shall not receive judgment; or if after judgment he
become of non-sane sane memory memory, , his execution shall be spared; for, were he
of sound memory, he might allege somewhat in stay of judgment or
execution.
But because there may be great fraud in this matter, yet yet, , if the crime be
notorious, as treason or murder, the Judge before such respite of trial or
judgment, may do well to impannel a jury to inquire ex officio touching
such insanity, and whe whether it be real or counterfeit.
37. In his submissions to the Court in Padola,
historically the meaning of the word
that “sound memory” (actually the lack of it) was a factor of insanity, and that
anyone who was not of sound memory was unfit to plead:
48 Lawton QC 49 usefully traced
historically the meaning of the word “insane” at common law, 50 usefully traced
to demonstrate
(actually the lack of it) was a factor of insanity, and that
anyone who was not of sound memory was unfit to plead:
46
1 Leach, 451; the facts are summarised in Rex v The Governor of his Majesty's Prison at Stafford [1909] 2 K.B. 81.
47
Hale, Pleas of the Crown; Vol. i. p. 34.
48
On behalf of the appellant.
49
As he then was.
50
As well as for the purposes of the Criminal minal Lunatics Act 1800.
13