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
of f Mr Barry George at the Central Criminal Court in August 1998, a psychologist
had sat with him in the dock. 131
f Mr Barry George at the Central Criminal Court in August 1998, a psychologist
Question 3
105. Question 3: Do consultees agree that we have correctly identified the options
for reform in relation to the section 4A hearing? If not, what other options for
reform would consultees propose? (Paragraph 6.153)
106. We remind ourselves that the s.4A hearing was “intended intended to counter the problems
which arise when an accused cannot participate effectively in his or her trial by
giving appropriate instructions to his or her lawyers, following the proceedings
and, if he or she wishes, giving evidence in his or her own defence defence” [CP, para.6.4].
107. The Commission state that the statutory procedure “has has more or less consistently
succeeded in achieving th that at objective. Broadly speaking, it does what it was
intended to do which is to enable the prosecution’s evidence to be properly tested
and to allow any points which can be properly made in the accused’s favour to be
put before the jury for their considera consideration” [CP, para. 6.5]. We have no reason to
doubt the correctness of that statement.
108. The s.4A hearing is a limited enquiry, namely, to determine whether the defendant
“did did the act or made the omission charged against him as the offence offence”
1964 Act). We recognise that a significant problem with that formulation is
whether and in what circumstances it is necessary for the jury to have regard to the
fault element of the offence in question question.
respect of which the conduct element of the offence possesses a mental ingredient
of some kind: examples of these are set out in CP, para.6.28 (e.g. failing to
disclose knowledge or suspicion of money laundering
132 a limited enquiry, namely, to determine whether the defendant
(s.4A(2),
We recognise that a significant problem with that formulation is
whether and in what circumstances it is necessary for the jury to have regard to the
It is clear that there are offences in
e conduct element of the offence possesses a mental ingredient
examples of these are set out in CP, para.6.28 (e.g. failing to
disclose knowledge or suspicion of money laundering, , s.330, s.331, POCA 2002).
109. The Commission’s preferred option for reform is Option 5 [emphasis added]: added]
6.129 One way would be to have a procedure where, in so far as is
possible, all the elements of the offence are considered. The prosecution
would have the burden of proof in relation to this. In determining whether
all l elements of the offence are proved, it should be possible to consider
defences in so far as this is consistent with the fact that decisions about
the section 4A hearing are made by the accused’s appointed legal
representative. In other words, as long as there is a sufficient evidential
131 http://news.bbc.co.uk/1/hi/uk/7537797.stm
http://news.bbc.co.uk/1/hi/uk/7537797.stm Mr George was tried and acquitted of the murder of the television
presenter, Jill Dando.
132
CP, para. 6.7.
37