An upturn in unfitness to plead? Disability in relation to the trial under the 1991 Act

Criminal Law Review

Volumn , Issue JULY, 2000, Pages 532-546

  Mackay, R D ^a   Kearns, Gerry ^a  

^a DE MONTFORT UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 25144437640     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (48)

1. R. D. Mackay, Mental Condition Defences in the Criminal Law (1995, Clarendon Press), pp. 221-224.
2. This updates an earlier study, see R. D. Mackay "The Decline of Disability in Relation to the Trial" [1991] Crim.L.R. 87.
3. R. D. Mackay, "Fact and Fiction about the Insanity Defence" [1990] Crim.L.R. 247.
4. The exception, retained by section 2 of the 1991 Act, gives the judge discretion to delay the trial of unfitness to plead until the close of the prosecution case thus enabling the defence to submit that there is no case to answer. For a recent and rare example of this see O'Donnell [1996] 1 Cr.App.R. 286 discussed in note 16 below.
5. R. D. Mackay and G. Kearns, "More Facts about the Insanity Defence" [1999] Crim.L.R. 714.
6. See section 2 of the 1991 Act substituting new provisions for section 4 of the 1964 Act.
7. The research was funded by the Economic and Social Research Council.
8. R. D. Mackay and G. Kearns, "More Facts about the Insanity Defence" [1999] Crim.L.R. 714 at 715.
9. See Statistics of Mentally Disordered Offenders in England and Wales 1997 (Home Office Statistical Bulletin - Issue 19/98) at Table 3. It should also be noted that the Home Office figures are based on the date of the hospital warrants rather than the date of the finding.
10. We gratefully acknowledge the assistance we received throughout the research from these three agencies together with additional help from the Crown Prosecution Service.
11. Although there were 13 recorded findings of a defendant being UTP in 1992, two of these cases were disposed of under the 1964 Act because the arraignment had occurred in 1991. Accordingly, the correct totals for 1991 and 1992 are 10 and 11 respectively.
12. "Trial of the Issue" refers to the proceedings leading to a formal finding by a jury that the defendant was unfit to plead, as opposed to the "Trial of the Facts" which now automatically follows all such findings.
13. Two male defendants were found UTP twice during the research period. As a consequence, all tables treat these individuals, as a single entity when the value is consistent, i.e. sex and ethnicity, which results in a total number of 123 individuals. However, when the value for the variable changes it is recorded as such, i.e. offence, disposal and age, leading to a total of 125.
14. Other included one Croatian, Dutch, Egyptian, French, Iranian, Lebanese, Turkish Cypriot and two Polish.
15. This may not be true in practice. The disincentives of running the issue of UTP have already been noted when the offence charged is murder.
16. See section 4A(5) of the Criminal Procedure (Insanity) Act 1964, inserted by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.
17. See, e.g. O'Donnell [1996] 1 Cr.App.R. 286. On appeal it was ruled that the appropriate remedy was to order a "venire de novo" principally because the defendant was wrongly convicted. However, for the purposes of the research this case could not be ignored as a finding had been reached that the defendant was UTP. The case is therefore included in the sample. One other case under similar circumstances is also included when the defendant was found UTP, but no trial of the facts followed and the defendant was made subject to an admission order with restrictions. The defendant was brought back to court when the mistake was discovered and the charge relating to UTP was ordered to lie on file. A "normal trial" then ensued in relation to another charge the defendant was facing.
18. (In another case (discussed by Cripps & James, "An Insane Way to Behave?" (1995) 6 J. Forensic Psychiatry 605) a verdict of UTP was erroneously returned after a finding that the defendant was NGRI. This is not included in the sample and instead is recorded as a finding of insanity).
19. The concept of UTP dates back to Pre-Norman times when deaf mutes were exempt from trial as they were not liable to forfeitures and later evolved into a procedure to determine whether the defendant was "mute by malice or by visitation of God". For a comprehensive discussion of the historical aspects of this see N. Walker, Crime and Insanity in England (1968, Edinburgh University Press), Vol. 1.
20. (1836) 7 C. & P. 303.
21. [1997] 2 All E.R. 1012 at 1018.
22. The psychiatric reports were analysed in this way in order to avoid giving undue weighting to any particular criteria. For example, if multiple reports in a case indicated that the defendant's central deficit in relation to his trial was that he had paranoid delusions about his counsel, then the ability to instruct a lawyer would be likely to be mentioned in all the reports. Accordingly, this particular criterion would then receive undue weighting simply because multiple reports relating to it were available in this case. Selecting one random report from each case overcomes this difficulty.
23. See R. D. Mackay, Mental Condition Defences in the Criminal Law (1995, Clarendon Press), pp.224-225.
24. See also Don Grubin, Fitness to Plead in England and Wales (1996, Psychology Press), pp.64-65.
25. See Podola [1960] 1 Q.B. 325. The Butler Committee (1975, Cmnd. 6244) at paras 10.4-10.11 gave a full consideration to including amnesia within the scope of UTP but the majority considered that the objections to including it outweighed the arguments in favour.
26. This case is discussed in R. D. Mackay and G. Kearns, "The Trial of the Facts and Unfitness to Plead" [1997] Crim.L.R. 644.
27. One of these cases (R. v. Southwark Crown Court, ex p. Koncar [1998] 1 Cr.App.R. 321) went to judicial review on the basis that the disposal of an admission order for an offence, which is normally only triable summarily, was unlawful. This submission was rejected.
28. For a more comprehensive discussion of this matter see R. D. Mackay & G. Kearns, "The Trial of the Facts and Unfitness to Plead" [1997] Crim.L.R. 644.
29. See also S. White, "Acts and Facts" (1998) 62 J. Criminal Law 360.
30. Home Office Circular 93/1991 at para. 8, emphasis added.
31. [1998] 1 Cr.App.R. 121.
32. ibid. at 125.
33. Report of the Committee on Mentally Abnormal Offenders (1975) Cmnd. 6244, para. 10.24, emphasis added.
34. [1999] 3 All E.R. 40.
35. ibid. at 49.
36. [1999] 3 W.L.R. 1204.
37. ibid. at 1213.
38. Antoine [2000] 2 All E.R. 208 at 221.
39. ibid. at 222.
40. ibid. at 222-223.
41. See Brany v. An.-Gen. for Northern Ireland [1963] A.C. 386.
42. See Sullivan [1984] A.C. 156.
43. It should be noted that one defendant charged with murder was given an ordinary admission order by mistake. This defendant died before the error came to light.
44. See R. D. Mackay and G. Kearns, "More Facts about the Insanity Defence" [1999] Crim.L.R. 714 at 723, table 7.
45. [1998] 1 Cr.App.R. 121.
46. [2000] 2 All E.R. 208.
47. R. D. Mackay, op. cit., at note 1.
48. We are continuing to monitor the operation of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and will report on future developments in five yearly intervals.