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
It might work great injustice in many cases to put a prisoner against
whom such a finding was recorded upon his trial as if he were perfectly
sane, and if he was found guilty to punish him as an ordinary criminal; or
it might be the cause of much mischief if he were found no not t guilty and
were allowed to go free. I am glad to say that we are not driven to accept
the argument.
47. The Court accepted as “perfectly perfectly true true” that section 2 of the 1800 Act used the
word “insane” and that the words “inability to plead”, “inability inability to understand under the
proceedings”, and “inability inability to communicate with other persons persons”, are not to be
found in the Act. But, , the Court reasoned that the word “insane” was qualified by
the words which followed it it:
It seems to me that when one looks at the words which fo follow llow the word
“insane” in s. 2 of the Act of 1800 - “ so that such person cannot be tried
upon such indictment indictment” - we ought to construe the word “insane” with
reference to the question whether the prisoner can or cannot be tried upon
the indictment; and we ought not to say that Parke J. and Alderson B. and
the other judges who considered the matter misdirected the jury as to the
test of insanity for the purpose of this Act. I cannot find in any text text-book book
which I have seen that any doubt has ever been thrown upon the view
acted upon by those learned judges.
48. The Court found its reasoning to be supported by the decision of the
Crown Cases Reserved in Berry (1876)
insanity “but only of insanity from the point of
nature of the proceedings”
the 1800 Act was held to have been
60 its reasoning to be supported by the decision of the Court for
where there was no question of general
but only of insanity from the point of view of not understanding the
” and yet an order that B be detained under section 2 of
have been correctly made.
49. The Criminal Procedure (Insanity) Act 1964, as originally enacted, made a number
of procedural al amendments
amendments, but it did not modify the test for determining whether
the defendant is unfit to plead or not. The 1964 Act has been amended by the
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and by the
Domestic Violence, Crime and Victim Victims s Act 2004, but neither of those amending
enactments has modified the common law test of unfitness to plead plead: : see Erskine
[2009] EWCA Crim 1425, para. 85. Unfitness is now determined by a judge
rather than by a jury: s.4(5), DVCVA 2004.
Is the Pritchard test st unsatisfactory?
50. It is true that the application of the Pritchard test has produced some hard cases,
but we doubt whether the Commission’s proposals would produce different results
60 (1876) 1 Q. B. D. 447
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