The trial of the facts and unfitness to plead

Criminal Law Review

Volumn 1997, Issue 9, 1997, Pages 644-652

  Mackay, R D ^a   Kearns, Gerry ^a  

^a DE MONTFORT UNIVERSITY   (United Kingdom)

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EID: 3042972808     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (32)

1. See s.4A(2) of the Criminal Procedure (Insanity) Act 1964 inserted by s.2 of the 1991 Act. The term "trial of the facts" is not actually used in the Act.
2. See Stephen White, "The Criminal Procedure (Insanity and Unfitness to Plead) Act" [1992] Crim.L.R. 4 at pp.8-9.
3. By way of contrast a finding of unfitness to plead does not require proof of mental illness or severe mental impairment but is instead based on the criteria laid down in Pritchard (1836) 7 C. & P. 303 which broadly requires that the accused has sufficient intellectual ability to understand the course of the trial proceedings. For discussion of this test see R.D. Mackay, Mental Condition Defences in the Criminal Law (Clarendon Press, Oxford, 1995), Chap. 5.
4. Alec Samuels, "Hospital Orders without Conviction" [1995] Crim.L.R. 220, 222.
5. ibid. at 221. Emphasis in original.
6. Funded by Economic and Social Research Council Grant No. R00023 3773 and conducted with the co-operation of the Mental Health Unit and the Research and Statistics Directorate of the Home Office, the Lord Chancellor's Department, the Court Service and the Crown Prosecution Service.
7. R. D. Mackay, "The Decline of Disability in Relation to the Trial" [1991] Crim.L.R. 87; R. D. Mackay, Mental Condition Defences in the Criminal Law (Clarendon Press, Oxford, 1995), Chap. 5.
8. R. D. Mackay, "The Decline of Disability in Relation to the Trial" [1991] Crim.L.R. 87; R. D. Mackay, Mental Condition Defences in the Criminal Law (Clarendon Press, Oxford, 1995), Chap. 5.
9. R. D. Mackay and G. Kearns, "The Continued Underuse of Unfitness to Plead and the Insanity Defence" [1994] Crim.L.R. 576. See also R.D. Mackay, Mental Condition Defences in the Criminal Law, op. cit.
10. R. D. Mackay and G. Kearns, "The Continued Underuse of Unfitness to Plead and the Insanity Defence" [1994] Crim.L.R. 576. See also R.D. Mackay, Mental Condition Defences in the Criminal Law, op. cit.
11. See below at p.646.
12. The Act is silent over burden of proof although Home Office Circular 93/1991 dealing with the Act states at para. 9 "the test in regard to burden of proof should be consistent with other criminal proceedings (beyond reasonable doubt)."
13. [1996] 1 Cr. App. R. 286 where the trial judge mistakenly allowed a conventional guilty verdict to be recorded after the trial of the facts had concluded that an unfit defendant had committed the act of indecent assault.
14. O'Donnell [1996] 1 Cr. App. R. 286 at 294.
15. Home Office Circular 93/1991 at para. 8, emphasis added.
16. [1970] 1 All E.R. 642.
17. See s.6 of the Criminal Procedure (Insanity) Act 1964.
18. This is an exception to the rule that diminished responsibility is an "optional defence". See Campbell (1986) 84 Cr.App.R. 255 at 259-260; Arnold (1996) 31 B.M.L.R. 24 at 35. See also Strata [1995] 1 All E.R. 187 at 191 where the accused refused to plead diminished responsibility despite convincing psychiatric evidence, a decision of which the Court of Appeal said she "was sufficiently capable on the medical evidence . . . ".
19. This is the word used in the 1991 Act, see ss.2 and 3.
20. For the original proposal recommending such a change see the Butler Report, as in n. 20, Report of the Committee on Mentally Abnormal Offenders, 1975 Cmnd. 6244 para. 19.19.
21. See R. A. Duff, "Fitness to Plead and Fair Trials: (1)A Challenge" [1994] Crim.L.R. 419 at 420.
22. Report of the Committee on Mentally Abnormal Offenders, 1975 Cmnd. 6244 para. 10.24.
23. Hansard, March 1, 1991, Volume 196, No. 67, column 1280.
24. [1997] Crim.L.R. 225.
25. Lexis transcript. The implications of this decision for s.37(3) of the Mental Health Act 1983 remain to be considered, see Samuels, op. cit. at p.222.
26. See s.174ZA(4).
27. Clare Connelly, "Insanity and Unfitness to Plead" [1996] Juridical Review 253 at 255, emphasis added.
28. R. A. Duff op. cit.
29. R. D. Mackay and G. Kearns, "The Continued Underuse of Unfitness to Plead and the Insanity Defence" [1994] Crim.L.R. 576.
30. This presumably required an investigation as to whether what he did was "more than merely preparatory to the commission of the offence" under s.1(1) of the Criminal Attempts Act 1981.
31. op. cit.
32. Of course if this is the case then why should the prosecution not be able to adduce evidence of diminished responsibility in response? The answer seems to be that s.6 of the 1964 Act requires a "trial for murder" which surely cannot extend to a "trial of the facts".