Unfitness to Plead Consultation Responses - Law Commission ...

court proceedings” (at para 149). Of course a court should be able to reverse the
decision to remit the case 2 .
Norman [2008] EWCA Crim 1810 This case is used to here to illustrate the
arguement for filling an ‘obvious technical lacuna’ that where a finding under s. 4A is
quashed and there has been no challenge to a finding under s. 4 (that the accused is
under a disability) there should be a power for the Court of Appeal to order a rehearing
under s. 4A 3 .
The Law Commission is also deeply (and unsurprisingly) critical of the decisions of
the House of Lords in Antoine [add ref] and in H [2003] UKHL 1. The defendant in
H was aged 13 when he was charged with two offences of indecent assault on a girl
aged 14. Before his trial in the Crown Court (at Bradford) he was examined by
psychiatrists instructed on his behalf and on behalf of the Crown, all of whom agreed
that he was unfit to stand trial. Yet rather than simply dealing with his case through
mental health services, he had to survive two jury trials (and indeed an appeal to the
House of Lords). First, a jury was empanelled to decide the question whether he was
fit to stand trial, and unsurprisingly, given the psychiatric evidence, they found that he
was indeed under a disability and so unfit. Then at a separate hearing a different jury
found that he had indeed done the acts alleged against him in the indictment. He was
then absolutely discharged on both counts and his father was directed to cause him to
be registered as a sex offender 4 . Were these proceedings really necessary in the
interest of public protection? More importantly, perhaps, were they in the interest of
welfare of this 13-year-old defendant 5 ? Here I question the choice of proceedings and
the relative role of social workers, psychiatrists, police and CPS. It is somewhat
chilling to read the judgment of the House of Lords, in the appeal against the second
jury’s verdict, which focuses (perhaps properly, but nonetheless chillingly) on the
narrow question under appeal, the applicability or otherwise of Article 6 of the
European Convention on Human Rights (the right to a fair trial). There is no
discussion of the welfare of the child, and no questioning of why this child was
subjected to this heavy-handed criminal justice process.
In contrast, the Law Commission rehearse key decisions of the European Court of
Human Rights (Stanford v United Kingdom App No 16757/90; T v United Kingdom
App No 24724/94 and V v United Kingdom App No 24888/94 (2000) 30 EHRR 121;
SC v United Kingdom (2005) 40 EHRR 10 (App No 60958/00)) to conclude that
“effective participation requires active involvement on the part of the accused rather
than just a passive presence” (at para 2.102).
(ii) The Law Commission’s paper makes good use of the academic and professional
literature.
2
Which is the sensible provisional proposal 12 made in this Consultation Paper. Nor should there have
to be a fourth jury, subject to the consent of the representative of the accused (provisional proposal 13)
3
Provisional Proposal 14
4
For my discussion of the implications of sex offenders’ register, see Padfield, N, ‘Discretion and
decision‐ making in public protection’ in Nash and Williams (eds) Handbook on Public Protection
Protection (Willan)
5
Section 44 of the Children and Young Persons Act 1933 still applies: Every court in dealing with a
child or young person who is brought before it, either as an offender or otherwise, shall have regard to
the welfare of the child or young person and shall in a proper case take steps for removing him from
undesirable surroundings, and for securing that proper provision is made for his education and training.
See also s. 9 of the Criminal Justice and Immigration Act 2008.
3