Unfitness to Plead Consultation Responses - Law Commission ...

42. The difficulty lies in that the mental element frequently involves a
subjective assessment of the alleged offender’s state of mind. This is a
factor not only in those comparatively rare offences mentioned in
Paragraph 6.28 but much more frequently in cases of self-defence, arson
with intent, joint enterprise and inchoate offences.
43. However, if one introduced a trial in the traditional sense, where the
failure to prove a mental element resulted from the accused’s mental
disability and so he was acquitted, the consequences arising from that,
may affect the safety of the public. For example, a person charged with
an offence of violence may raise the issue of self-defence. The
substantive law provides that even if the accused may have had a genuine
but mistaken belief that he was about to be attacked, he is to be acquitted.
If that were to be applied to a person who was unfit to plead, even though
his belief was based upon a delusion which had given rise to him being
found unfit to plead, he would be acquitted. His action may have been
extremely dangerous yet he would be free to act in the same way again.
We do not consider that could be an acceptable situation even though that
there may be intervention under Section 3 Mental health Act 1983 in such
circumstances. It is therefore necessary to factor into any procedure an
acknowledgement that the accused’s mental state resulted from his
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