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
The old phrase hrase used was “in sana memoria”; “memoria” means memory,
not mind, while “sana sana” means sound, and a man could not be tried unless
he had a good and “sound sound memory memory”: see Hale's Pleas of the Crown, , vol.
1, pp. 34-35. 35. That was a factor of insanity, and anyone who did not have
it was “insane” and unfit to plead.
The emphasis on a “ “good and sound” memory runs through the law on
this matter: see Beverley's Case
Somervile's Case] Sir John Hawles in his remarks on the trial of Charles
Bateman [Bateman's Case
51 [Reference was also made to
] Sir John Hawles in his remarks on the trial of Charles
Bateman's Case] said 52 memory runs through the law on
[Reference was also made to
] Sir John Hawles in his remarks on the trial of Charles
that the true reason of the law was that
“a a person of 'non sana memoria', and a lunatick during his lunacy,
is by an act of God....disabled to make his just defence. There
may be circumstances lying in his private knowledge, which
would prove his innocency, of which he can have no advantage,
because not known to the persons who shall take upon them his
defence,”
and criticised the “cruel cruel and inhumane law law” 33 Hen. 8, c.20, enacting,
inter alia, that a man who fell mad after he committed high treason should
notwithstanding be tried, but repealed by 1 & 2 Philip and Mary, c.10, so
that the law was as it was at common law, and if Bateman was of “non non
sanae memoriae he ought not to have been tried, much less executed. executed.”
38. However, in Padola, , the Court of Criminal Appeal declined to treat a mere loss of
memory as coming within Hale Hale’s s statement of the criteria applied at Common Law
for determining whether a defendant was unfit to plead. It observed that the
expression “sound sound memory memory” was to be contrasted with “absolutely mad” ” and with
“frenzy”: 53
It is to be observed....
Sir Matthew Hale is considering
lunacy” in reference to criminal offences. It will als
first passage quoted,
mad” and with “frenzy.
“memory” there used does not relate to recollection but to a state of mind.
We think that this meaning
only in the passages in Hale but also in the passage in
Beverley's Case, 54 ....that that the above passages occur in Chapter IV where
Sir Matthew Hale is considering “the the defect of idiocy, madness and
in reference to criminal offences. It will also o be seen that in the
first passage quoted, “sound memory” is contrasted with “absolutely absolutely
frenzy.” Accordingly, in our judgment, the word
there used does not relate to recollection but to a state of mind.
We think that this meaning is to be attached to the word “memory” not
only in the passages in Hale but also in the passage in Coke's Notes on
and in other authorities previous to the Act of 1800 to
which we were referred.
51 (1603) 4 Co.Rep. 123b , 124b.
52 (1685) 11 State Trials 467, 474, 476.
53 [1960] 1 Q.B. 325, at p.353.
54 (1603) 4 Co.Rep. 123b
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