Unfitness to Plead Consultation Responses - Law Commission ...

or made the omission charged and that there are no grounds for an
acquittal.
[Paragraph 6.140]
This seems the best compromise as it will more fully protect the unfit to plead.
However, I am not convinced that such a new “hearing” will give Article 6 protection,
see my draft paper.
(9) If the accused is acquitted provision should be made for a judge to hold a
further hearing to determine whether or not the acquittal is because of
mental disorder existing at the time of the offence.
[Paragraph 6.140]
Agreed but there are possible complications, see my draft paper.
(10) The further hearing should be held at the discretion of the judge on the
application of any party or the representative of any party to the
proceedings.
[Paragraph 6.152]
Agreed.
(11) The special verdict should be determined by the jury on such evidence
as has been heard or on any further evidence as is called.
[Paragraph 6.152]
Agreed.
(12) Where the Secretary of State has referred a case back to court pursuant
to the accused being detained under a hospital order with a section 41
restriction order and it thereafter becomes clear beyond doubt (and
medical evidence confirms) that the accused is still unfit to plead, the
court should be able to reverse the decision to remit the case.
[Paragraph 7.21]
Agreed.
Para. 7.14 – Data on remission for trial is available from Mental Health Casework
Section of the MOJ.
See also at para. 7.16 – the rationale for limiting remission to section 41 disposals is
as follows. Originally all unfitness to plead (and insanity) cases resulted in the
equivalent of a section 41 disposal. This meant that C3 Division of the Home Office,
now the MOJ, had jurisdiction in all such cases and was notified of them all. When
flexibility of disposal was introduced this ceased to be true. The MOJ only has
jurisdiction and is notified of those cases which result in restriction orders. In all
other cases they have no locus standi which means in turn that for all practical
purposes remission cannot be made in such cases. However, there seems to be
nothing in principle to prevent the CPS from mounting a trial in non-restriction order
cases once the unfit D has recovered, if it considers that this is in the public interest.
As I understand it the CPS has an internal Circular to this effect or did have.
(13) In the event of a referral back to court by the Secretary of State and
where the accused is found to be unfit to plead, there should not be any
need to have a further hearing on the issue of whether the accused did
the act. This is subject to the proviso that the court considers it to be in
the interests of justice.
[Paragraph 7.21]
Agreed.
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