Unfitness to Plead Consultation Responses - Law Commission ...

unfitness was an order for admission to hospital, which was distinct from a hospital
order.
Supervision and treatment order and an absolute discharge were introduced as
alternatives to an order for admission to hospital by the Criminal Procedure (Insanity
and Fitness to Plead) Act 1991. The admission order was replaced with a hospital
order, with or without a restriction order, and the supervision and treatment order was
replaced with a supervision order by the Domestic Violence, Crime and Victims Act
2004. The statutes neither restrict nor reserve the trial of an offender who becomes fit
to plead after an order is made.
Section 4A (2) CP (I) A 1964 provides that a finding of unfitness will have the effect
that the trial “shall not proceed or proceed further. Although the fitness to plead
procedure can result in an acquittal, a finding that the offender did the act or made the
omission charged is not a conviction and does not amount to the determination of a
criminal charge. It does not preclude a full trial of the accused if he becomes fit to be
tried. (R v H [2003] UKHL 1)
The Reference Guide to the Mental Health Act 1983 (Department of Health 2008:
pares 11.8 to 11.10 states that “because patients admitted to hospital when found unfit
to plead have not (by definition) received a full criminal trial, they may be sent back
for trial by the prosecuting authority if that authority is satisfied, after consulting with
the responsible clinician, that they can now properly be tried. The Secretary of State
for Justice may also do this, if the patient concerned is still subject to a restriction
order and still detained in hospital.”
There is no duty on the responsible clinician or supervising officer to advise the CPS
if an offender subject to a hospital order (without a restriction order) or supervision
order becomes fit to plead. The CPS is therefore unlikely, in reality, to be made aware
of such circumstances. However, such a situation may come to light if a person is
subsequently charged with a further offence and their previous fitness to plead
becomes known. In such cases, prosecutors should carefully consider whether the
public interest requires a prosecution. The fact that the original Judge decided that a
restriction order was not necessary for public protection may well indicate that
offence was not so serious as to now require prosecution and that the public interest
has been satisfied by treatment rather than punishment.
7. Should an accused who is found to be unfit to plead (or to lack decision
making capacity) be subject to the section 4A hearing in the same
proceedings as co defendants who are being tried?
Yes. We agree with the approach taken by the Court of Appeal in R v B and others
[2008] EWCA Crim 1997 that the court should be able to determine whether the trial
of fit defendants and the determination of whether unfit defendants did the act or
made the omission alleged should proceed at the same time before a single jury.
We appreciate that a full trial is a different issue to a section 4A hearing, but consider
that the usual rules of joiner and severance should apply, so that in the majority of
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