Unfitness to Plead Consultation Responses - Law Commission ...

Response to Consultation Paper on UNFITNESS TO PLEAD
These are already in practice. We have never came across a case where the Judge refused special measures when it
was deemed appropriate by lawyers.
(3) Do consultees agree that we have correctly identified the options for reform in relation to the section
4A hearing? If not, what other options for reform would consultees propose?
Please see response to paragraph 8. Our preferred option is to abolish s. 4A altogether and have a Competency to
stand trial hearing by jury. If the person is incompetent to stand trial, he is ordered measures to restore competence.
When he regains competence (in vast majority of cases) he stands trial in normal way. There is no need (from a
practical clinical point of view) to complicate matters.
(4) If consultees do not agree that option 5 is the best option for reform, would they agree with any other
option?
We agree partly with option 3. We reject option 5 as it is not a vast improvement on current muddle. Why acquit?
Considering that Insanity acquittees are always remanded to hospital for life (or till cured) what is the point of
acquittal? As a matter of common sense, acquittal comes after trial. If the accused with suspected mental illness is
stopped at the trial stage from participating any further for reasons of mental illness (which one hopes can be
remedied), the question of acquitting would not arise, whether by ‘reasons of insanity (NGRI)’ or ‘Guilty but Insane’ or
other insanity practised elsewhere. The matter, as we see it is simple. Criminal trial is a two stage process. We can’t
reach the second stage (of determination of Guilt - by jury, judge or whatever) unless the First Stage is cleared
(Capacity to stand trial). Why make it so complicated.
The extant arrangements are muddled (with the need for three different legislations to navigate this single issue) is no
one since ‘Pritchard’ ever bothered to see capacity as a principle. Now we have MCA 2005 and (although belatedly)
the Law Commission has woken up to address the issue, why can’t we strive to make it simple? True that treatment
costs of restoring capacity would increase but it is in our view a price one pays for fairness in a civilized society. What
benefit has the society seen since s.4A was introduced? Is there an empirical basis to continue with this complicated
way? What is the benefit of determining someone ‘guilty but insane’ or NGRI where the end result is the same. The
patient goes to hospital for treatment and does not come out till he is safe to do so (in the intractable cases of
Erskine and Sureda),the rest gets better and face their action in a properly organized trial.
(5) Should a jury be able to find that an unfit accused has done the act and that there are no grounds for
acquittal in relation to an act other than that specifically charged?
This question in our view, in light of the above discussion, should not even arise.
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