Unfitness to Plead Consultation Responses - Law Commission ...

The CPS then re-reviews the case in accordance with the Code for Crown Prosecutors
and the principles set out in the Legal Guidance on Mentally Disordered Offenders. A
prosecution will not be resumed, and therefore the defendant will not be tried unless
the Full Code Test is satisfied. The Full Code Test has two stages: the evidential stage
followed by the public interest stage. The evidential stage is satisfied if there is
sufficient evidence to provide a realistic prospect of conviction, which means that an
objective, impartial and reasonable jury or magistrates’ court is more likely than not
to convict the defendant of the charge alleged. A case which does not pass the
evidential stage must not proceed, no matter how serious or sensitive it may be.
If the evidential stage is satisfied, the CPS must decide whether a prosecution is
required in the public interest. A prosecution will usually take place unless the
prosecutor is sure that there are public interest factors tending against prosecution
which outweigh those tending in favour. The more serious the offence or the
offender’s record of criminal behaviour, the more likely it is that a prosecution will be
required in the public interest. Some factors that the CPS may take into account are:
The views of the victims and witnesses;
The impact of a prosecution on the health of the victim, witnesses and
defendant;
The seriousness of the offence;
The risk of reoffending and the risk of harm. The length of any delay between
the offence, resumption of fitness to plead and the likely trial date;
The fact that the offender was suffering from significant mental ill health at
the time of the offence;
The effect of the hospital treatment on the offender’s mental health and
behaviour;
The likely sentence or order of the court on conviction;
The duration of the hospital order/restriction order, and whether it is
commensurate with the seriousness of the offending.
The legislation is also silent as to whether a person can be prosecuted if he becomes
fit to plead after he has been the subject of a hospital order ( without a restriction
order), a supervision order or an absolute discharge made after a section 4A hearing.
In R v Birch [1989] 11 Cr. App R (S) 202, the Court of Appeal held that “once the
offender is admitted to hospital pursuant to a hospital order without restriction on
discharge, his position is almost exactly the same as if he were a civil patient. In effect
he passes out of the penal system and into the hospital regime. Neither the court nor
the Secretary of State has any say in his disposal.” However, these comments referred
to the effect of a hospital order made on conviction as an alternative to a custodial
sentence. At the time, the only order that could be made following a finding of
6