Unfitness to Plead Consultation Responses - Law Commission ...

Law Dept, LSE 14 January 2011
Dear
Unfitness to Plead: Consultation Paper no 197
First, I would like to congratulate you and your team on a most impressive piece of work. You have
done an excellent job in bringing together what is, to my mind anyway, a complex and problematic
area of law.
Since I am also broadly supportive of the recommendations, and the line of reasoning you so clearly
set out, I am confining my comments to one point only. And it relates to your proposal for a special
verdict: provisional proposal 9. Whilst I favour an integrated ‘fact and fault’ hearing and recognise
there is a problem where the acquittal is based on the prosecution’s inability to prove the necessary
fault element, I am hesitant about the notion that a further hearing could result in a special verdict
of an acquittal qualified by reason of mental disorder. This would seem to me to discriminate
unjustly between cases where the prosecution fails to prove intent in an ordered accused, and those
where the failure arises in cases of those with mental disorder. Needing subsequently to get into
the murky territory of whether the acquittal is because of mental disorder existing at the time
should, moreover, be a sufficient disincentive not to do this, without even raising the potentially
discriminatory elements. (It’s too early to tell if the causative elements now in diminished
responsibility are likely to prove equally problematic!)
But, my principal reason for opposing this is pragmatic. If the accused is both mentally disordered
and dangerous at the time of acquittal then admission to a secure hospital bed will presumably be
required, but even in the context of a special verdict this can only be achieved where the mental
disorder is of the requisite severity. Yet such an admission could equally be facilitated under the civil
sections of the MHA 1983 without the additional tag of a special verdict. Indeed, if admission cannot
be justified on grounds of health need (ie be Article 5 compliant with respect to ‘unsoundness of
mind’) then there will be no basis for intervening in such a substantial way (the supervision order
being sufficiently ‘light‐touch’ to make the accused arguably someone about whom a special
hearing/verdict would not be justified, and with respect to whom a judge would not agree to holding
such a hearing). So I would argue that you obtain the same result (hospital confinement and
treatment) without the special verdict.
There is, of course, one difference. Under the current provisions a judge can order admission of an
unfit accused found to have committed the act against medical advice – which remains an anomaly,
all other admissions to hospital beds requiring clinical support. And one disadvantage to those of a
protective mind: discharge from a civil order can be on the grounds of clinical authority alone – there
is not the additional safeguard of the restriction order in place. But this latter problem could be
addressed through your proposals under 6.155‐6.159 in the most serious cases. And probably
numerous other matters that you have thought of but I have not!
With best wishes, Jill