Unfitness to Plead Consultation Responses - Law Commission ...

indefinite restricted hospital order under sections 37 and 41
of the MHA. This is, in fact, a criminal disposal.
11. We agree that the section 4A procedure should be
reformed as it does not allow for an assessment of the
defendant’s state of mind nor, in many cases, does it allow
for a defence to be made to the charge. We therefore agree
that as far as possible a trial of all the relevant issues should
be held with a jury. If the defendant is found not to have done
the act then he or she should be acquitted. If the defendant
is found to have done the act then an appropriate disposal
can be made (your Provisional Proposal 8).
12. With regard to your Provisional Proposal 9, we can see
why, following the acquittal of a defendant after a section 4A
hearing, it might be necessary to determine the issue of
whether the defendant was suffering from mental disorder at
the time of the alleged offence. However, holding a further
hearing would create uncertainty for the defendant. We
therefore think that the issue of mental disorder should be
determined at the original section 4A hearing.
Conclusion
We have not addressed all the questions put in your Consultation
Paper as we do not have the appropriate experience in relation to
criminal law. However, we are broadly in agreement with those
proposals we have commented upon. Please feel free to contact
us for any further comments.
Yours faithfully
Pauline Dall
Head of Legal
Mind Legal Unit
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