Unfitness to Plead Consultation Responses - Law Commission ...

mental disorder or learning difficulty to allow steps to be taken for the
protection of the public.
44. We accept that criticisms can be made of the approach set out in R v
Antoine [2001]1AC 340 though experience shows that in many cases the
procedure works satisfactorily. There are, however, cases where that is
not so. We consider it worthwhile therefore, to try and find a more
comprehensive approach which is fair to the accused whilst providing
that opportunity for protection of the public.
45. It follows that we do not consider that Option 1 is appropriate. For the
reasons set out in the Consultation Paper, we agree that Options 2 and 3
are not appropriate. They add little if anything to the present regime.
46. We consider that any approach should be on the premise that the burden
should be on the prosecution to prove the elements of the offence. To
impose the burden on the defence to prove that there are no grounds for
acquitting the accused seems to us to impose a burden which would not
lie on a person who is fit to plead. As this is the centre of Option 4, we
find that unattractive.
47. This leads us to Option 5. We consider that this is the most suitable
option of those presented. However, we do consider that the two stage
approach to the mental element is unnecessarily cumbersome. It
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