Unfitness to Plead Consultation Responses - Law Commission ...

mental disorder existing at the time of the offence. This further hearing
would be a trial in which the accused could not participate. If the mental
element needs to be proved at the initial hearing then the court would be
bound to have considered the accused’s mental state at the time of the
offence and could make a finding at that hearing as to whether any
acquittal was on the grounds of lack of capacity. There will, of course,
be practical problems in ascertaining the accused’s mental state at the
time of the offence; any psychiatric examination will usually not be
contemporaneous and the accused will not give evidence.
In considering the other options we consider that the current procedure
needs revision and would not therefore support option1.
The second option (Butler Committee recommendations) could result in
dangerous offenders being acquitted and not liable to be sectioned and
we would not therefore support this approach.
The Scottish procedure is one that we consider could merit further
consideration.
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 charged?
We can envisage circumstances in which this could be worthy of
consideration. However, if any reforms are introduced in the
Magistrates’ Court as well as the Crown Court this would represent
fundamental change in Magistrates’ Courts procedure as alternative
verdicts are only available in a very small number of cases.
6. Are there circumstances 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?
We consider there is force in the arguments against the accused having
a right to request remission for trial. The reformed Section 4A test
proposed would require all elements of the offence to be proved and all
potential defences considered. There would be obvious difficulties in
locating witnesses and, in any such witnesses then recalling events
accurately as any subsequent remittal would be likely to be some time
after the incident in question. However, we consider that there may be a
case for a very limited grounds upon which an accused could seek
remittal; for example if new evidence came to light which cast doubt on
the original finding.
7. Should an accused who is found to be unfit to plead (or to lack decision-
making capacity) be subject to the section 4A hearing in the same
proceedings as co-defendants who are being tried?
2