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
basis to raise the defence or partial defence then the representative of the
accused can do so if he or she thinks that it is in the accused’s best
interests. If the accused is acquitted (because, for example, there is no
evidence of fault) then there may (but would not necessarily be) a further
hearing to consider whether or not the acquittal is because of mental
disorder existing at the time of the offence offence.
6.130 As envisaged, there would be three possible outcomes to th this th
procedure:
(1) a finding that the accused has done the act or made the omission
and that there are no grounds for acquitting him or her;
(2) an outright acquittal; or
(3) an acquittal which is qualified by reason of mental disorder.
110. The Commission’s thinking hinking is summarised at CP para.6.138, namely, “In In our view,
option 5 strikes the most appropriate balance between protecting the accused and
the public interest. By requiring the prosecution to prove all elements of the
offence, it ensures greater fairne fairness ss to an unfit accused. It also means that the
difficulties resulting from the decision in Antoine are avoided and would mean that
an unfit accused would benefit from the protection of article 6 of the European
Convention on Human Rights. The provision for a qualified acquittal, however,
ensures that the public can be protected from an accused who may be dangerous. dangerous.” dangerous.
111. At first sight Option 5 (and its underlying reasoning
However, a hearing along such lines is barely distinguishabl
jury trial. On the one hand the defendant would be advantaged to the extent (a)
that the burden of proof would be on the prosecution throughout (and presumably
in all cases), 133 and its underlying reasoning) has much to commend it.
a hearing along such lines is barely distinguishable from a traditional
On the one hand the defendant would be advantaged to the extent (a)
the burden of proof would be on the prosecution throughout (and presumably
(b) that his/her legal representative would be free to put
answers and defences in the accused’s best interest,
be subject to special measures.
is acquitted, he might find that a further hearing takes place, the acquittal
“qualified”, and he is then made the subject of an order under s.5 of the 1964 Act.
In short, he may find that his acquittal is a ‘Pyrrhic Victory’
worse position than if he had held out for a traditional trial
that he lacked decision-making capacity
up to two hearings, and possibly three (i.e. determination of capacity, trial of the
facts, qualified acquittal determination). The impact of such hearings on the
public purse and court time
134 and (c) that the accused may
special measures. The ‘sting in the tail’ is that even if the defendant
he might find that a further hearing takes place, the acquittal
, and he is then made the subject of an order under s.5 of the 1964 Act.
In short, he may find that his acquittal is a ‘Pyrrhic Victory’ and that he is in a
worse position than if he had held out for a traditional trial or declined to
making capacity. 135 much to commend it.
e from a traditional
On the one hand the defendant would be advantaged to the extent (a)
the burden of proof would be on the prosecution throughout (and presumably
(b) that his/her legal representative would be free to put forward
that the accused may
is that even if the defendant
he might find that a further hearing takes place, the acquittal becomes
, and he is then made the subject of an order under s.5 of the 1964 Act.
and that he is in a
or declined to assert
The Commission’s proposals involve
up to two hearings, and possibly three (i.e. determination of capacity, trial of the
facts, qualified acquittal determination). The impact of such hearings on the
time is obvious.
133
What would be the position in relation to strict liability offences?
134
Whether this is actually an “advantage” to the accused is subject to the submissions we have made regarding the
right to self-determination determination (personal autonomy).
135
References to the he masculine include the feminine gender gender.
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