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
116. It follows from the above tha that t whilst we are content to proceed on the basis that
the Commission has correctly identified options that merit consideration, we are
not yet persuaded that Option 5 is needed or desirable.
Question 4
117. Question 4: If consultees ddo
o not agree that option 5 is the best option for
reform, would they agree with any other option? (Paragraph 6.153)
118. We have acknowledged the complexity of this topic in our response to Question 3.
For the moment (pending further consultation and reflectio reflection) n) we confine ourselves
to the representations that we have made thus far.
Question 5
119. Question 5: Should a jury be able to find that an unfit accused has done the
act and that there are no grounds for acquittal in relation to an act other than
that specifically cally charged? (Paragraph 6.159)
120. We find the expression “ “no grounds for acquittal” potentially confusing. confusing It is
submitted that a question answered positively is to be preferred to one that is
couched in the negative. We tentatively suggest that the correct course is for the
indictment to be carefully drafted, including (if appropriate) alternative lternative charges.
Judges are now encouraged to draft ‘routes to verdict’ and we are inclined to the
view that a similar approach could/ought to be taken in relation to a section 4A
hearing. One member of the Working Group (whose views are likely to be shared
by many legal practitioners) suggests that a jury should also determine whether a
defendant has decision-making making capacity.
Question 6
121. Question 6: Are there circums circumstances tances in which an accused person who is found
to have done the act and in respect of whom there are no grounds for an
acquittal should be able to request remission for trial? (Paragraph 7.26)
122. Our provisional view is that there ought to be provision that enables a defendant
who has been found to have ‘done the act’ to apply for a remission for trial.
Despite the procedure proposed in Option 5, there may be circumstances in which,
subsequent to the section 4A hearing, information relevant to the trial of the t
facts/issue becomes available (e.g. the accused recovers sufficiently to provide it).
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