Unfitness to Plead Consultation Responses - Law Commission ...

whether there is a reasonable prospect that treatment would increase
capacity or render a defendant fit to participate in his trial.
Where the court is satisfied that the defendant is unfit or lacks decision making
capacity, it should consider using its powers under the Mental Health Act 1983
(MHA 1983) to order hospital treatment prior to trial if there is a prospect of
recovery within a year. Section 36 MHA 1983 allows an accused to be remanded
to hospital for treatment, instead of being remanded in custody, pending trial or
sentence. Section 38 MHA 1983 gives the Crown Court and magistrates’ courts
the power to make an interim hospital order for a period not exceeding 12 weeks.
The order can be renewed for 28-day periods, subject to an overall maximum
period of twelve months. These powers may be used in cases where the defendant
might otherwise be found unfit to plead, to provide treatment prior to trial, which
may proceed at a later date when his or her condition has improved.
We suggest that greater regard should be had to the duty of the court and the
parties to proceedings to further the overriding objective of the Criminal
Procedure Rules 2010 (CPR 2010) to deal with criminal cases justly (1.1 (1) CPR
2010) by actively managing the case , in particular by:
the early identification of the real issues (3.2 (2) (a)CPR 2010); and
ensuring that the evidence, whether disputed or not, is presented in the
shortest and clearest way. (3.2 (2) (e) PR 2010).
The defence should be required to identify to the prosecution the matters that are in
issue and make admissions pursuant to section 10 Criminal Justice Act 1967 in
regard to all matters that are not contested. This should simplify the trial process
and enable the evidence to be presented in the shortest and clearest way. This
should maximise the defendant’s understanding of the trial and increase his
capacity to participate effectively in the trial.
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?
We have no suggestions for other options for reform of the section 4A hearing.
4. If consultees do not agree that option 5 is the best option for reform,
would they agree with any other option?
In our view the approach taken in Antoine [2000] UKHL 20 strikes the correct
balance between the need to protect a defendant who is unfit to plead and therefore
cannot advance a defence, or in the case of murder, a partial defence to the charge;
and the need to protect the public.
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