Unfitness to Plead Consultation Responses - Law Commission ...

Response to Consultation Paper on UNFITNESS TO PLEAD
(8) The present section 4A hearing should be replaced with a procedure whereby the prosecution is obliged to
prove that the accused did the act or made the omission charged and that there are no grounds for an
acquittal.
We disagree with this. We prefer the option 3 (Abolish the section 4A hearing altogether and allow the accused to
stand trial. This would be subject to the proviso that once an accused has been found to lack decision-making
capacity, then a legal representative would be appointed by the court to represent his or her interests in the trial) in
part. We would like to see that once the accused is declared not competent to stand trial, he should be sent to a
psychiatric hospital for treatment for restoration of capacity, regardless of how long it takes. We believe from our
extensive experience in Criminal Courts and Forensic Facilities that proving that the accused ‘DID the Act’ is not
enough to establish guilt in more serious offenses where mens rea is an issue. Moreover if the defendant is not
competent to stand trial, how is he going to refute the prosecution case that he ‘did the act’. The Scottish model we
believe in this regard to be punitive and discriminatory by abolishing acquittal. It protects the public but puts a criminal
record on the accused which the accused would not have a chance to challenge.
(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.
See above.
(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.
See above. We object to ‘special hearing’ on grounds of justice and fairness. We appreciate that cases need to be
closed but public policy should not be dependent on expediency. We have seen that Antoine was not good law. It
should be on the Parliament to decide what is the right balance between protecting the public from someone ‘who
did the act’ which would have been an offense if the accused had mens rea’ and ‘someone who didn’t do the act at
all but unable to prove this because of mental disability’.
(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.
See above. We believe the right balance is to remand the case when capacity is restored (provided steps are being
taken to restore it). If capacity can’t be restored (such as in Erskine and Sureda (Dr. Sarkar had personally treated
both patients while he served at Broadmoor Hospital), they should continue with indefinite detention under s. 48/49.
Such cases are happily rare.
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