Unfitness to Plead Consultation Responses - Law Commission ...

The current section 4A procedure requires the prosecution to prove beyond reasonable
doubt that the defendant has done the act or made the omission charged. This includes
disproving accident, self defence or mistake where there is objective evidence to this
effect. In our view it is inappropriate to allow such an issue to be raised on the
instruction or evidence of a person who has been found unfit or to lack decision
making capacity. We accept that a defendant may have killed or injured a victim
whilst under a genuine but mistaken belief caused by a mental illness that the victim
was attacking him. However, we do not agree that the current procedure places a
defendant who is unfit at a significant disadvantage compared with a fit defendant
who may be able to obtain an acquittal on this basis. The unfit defendant is not denied
this outcome, as it will still be available if and when he becomes fit to plead.
We do not think it necessary or helpful for a jury to consider mens rea, as its
relevance is confined to conviction and passing a sentence that reflects culpability,
which are not potential outcomes of a section 4A hearing. It would not be in the
interests of justice to require the prosecution to prove beyond reasonable doubt all the
elements of the offence, as required by option 5, because the unfitness of the
defendant would make it impossible to test mens rea, including the genuineness of a
mistaken belief, by cross examination. This could result in the acquittal of a person
who, because of his delusional belief, continues to present a danger to the public. We
think that the risk of acquittal because the prosecution cannot establish mens rea to the
criminal standard is higher than set out in the Consultation Paper.
In many cases, the prosecution seeks to prove the requisite mens rea by proving the
actus reus and asking the jury to infer mens rea from those actions. If the defence
considers that the facts relied upon do not give rise to the prima facie inference that
the defendant had the requisite mens rea for the offence charged, it may request that
the trial proceeds and a submission of no case to answer is made at the conclusion of
the prosecution case.
We think that the special verdict is problematic. As paragraph 6.105 Consultation
Paper points out, the defendant may have had the necessary mens rea at the time of
the offence but later becomes unfit. It is unclear from the proposal whether the special
verdict requires the defendant to have a diagnosis of a mental disorder at the time of
the offence or at the time of his plea. It is also unclear whether a defendant who is
acquitted by way of mental disorder could face a trial if he becomes fit to plead. If
not, a defendant who admits his guilt in interview, is unfit for trial but recovers soon
afterwards, will never be held to account by the criminal law.
The current system permits the defendant to receive a full criminal trial, in which his
Article 6 ECHR rights are protected, if and when he becomes fit to plead. It also
meets the positive obligations on public authorities to ensure that the criminal law
provides adequate protection for individuals against the infliction of inhuman or
degrading treatment by other individuals that Article 3 ECHR imposes.
Option 5 would render the prosecution case indistinguishable from a full trial, without
the possible outcome of a conviction. This may undermine public confidence in the
criminal justice system, and provide insufficient protection to the victims of crime.
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