Unfitness to Plead Consultation Responses - Law Commission ...

uilds upon the disposal of the case being by a Hospital Order under
Section 37(1). There are, however, many cases which do not require such
an order but may be properly dealt with by a Community Order with an
appropriate requirement. At present this would only be possible if there
had been a conviction whether by plea or by trial. The result is that there
are likely to be defendants who should not be standing trial but without a
trial would be unlikely to be offered any assistance. This approach is
inappropriate.
60. In our view, when considering the approach which should be taken, one
should have in mind the programme which has been set out following the
Bradley Report. Lord Bradley envisages a system in which those alleged
to have committed an offence but who may be suffering from a mental
disorder or learning disability should be identified and “diverted” from
the criminal justice system. He applied a wide definition to “diversion”
to include removal altogether from the criminal justice system but also to
providing support to address their problems before any sentence were
imposed. This has led to schemes being developed in some areas to
identify those who may fall within these categories and their needs,
irrespective of guilt. He was also supportive of the use of Community
Orders with appropriate conditions. He was highly critical of the lack of
use of the “Mental Health Treatment” requirement. We support this
28