Unfitness to Plead Consultation Responses - Law Commission ...

5. Should a jury be able to find that an unfit accused has done the act and
that there are no grounds for acquittal in relation to an act other than
that specifically charged?
We disagree that Option 5 is the best option for reform. However, if Option 5 was
adopted, we cannot envisage any circumstances in which it would be useful to allow a
jury to find that an unfit defendant has done the act and that there are no grounds for
acquittal in relation to an act other than that specifically charged.
6. Are there circumstances in which an accused person who is found to have
done the act and in respect of whom there are no grounds for an acquittal
should be able to request remission for trial?
The difficulty experienced in Ferris v DPP [2004] EWHC 1221 Admin could be
avoided by an amendment to section 5A(4) Criminal Procedure (Insanity) Act 1964
(CP(I)A 1964) to delete the sentence “On the person’s arrival at the court or prison,
the hospital order and the restriction order shall cease to have effect.” In our view
both orders should remain in place unless and until the court finds that the defendant
is now fit to plead. We suggest that there should be a procedure for determining
fitness that mirrors the original procedure for determining unfitness. The issue of
fitness should not be decided by a single responsible clinician, but by the court,
informed by the evidence of two medical practitioners. This would enable a person
detained in hospital after a finding of unfitness to ask a court to decide whether he can
be remitted for trial.
The case of Ferris v DPP [2004] EWHC 1221 (Admin) also highlights the gaps in the
legislation and the absence of guidance on the use of the Secretary of State’s power to
remit a person to court or to prison if he becomes fit to plead while detained in
hospital under a hospital order and a restriction order made under section 5(2) CP (I)
A 1964.
The CP(I)A 1964 pre dates the establishment of the Crown Prosecution Service
(CPS), and has not been amended to reflect the role of the CPS in the decision to
resume the prosecution of a person who becomes fit to plead and participate in his
trial. There is no guidance to explain the consultation with the CPS or to assist the
Secretary of State to decide whether the defendant should be remitted to prison rather
than to court.
The current power of the Secretary of State to remit for trial is exercised by the Lord
Chancellor and Minister for Justice, who conducts regular checks with the responsible
clinician on the progress of the offender. The CPS will be consulted by the Secretary
of State, through the Public Protection and Mental Health Group of NOMS (National
Offender Management Service) when the responsible clinician has advised that the
offender is now fit to plead. Reports from the responsible clinician are not routinely
supplied, but will be forwarded in high profile cases or on request by the CPS. The
CPS may need to seek further information from the responsible clinician to determine
whether the prosecution should be resumed.
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