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The vast majority of criminal cases conclude in the Magistrates’ Court, yet the rules and procedure for defendants with serious mental health difficulties (i.e. those who are ‘unfit to plead’) are opaque and somewhat non-sensical. What follows is a quick guide.

Fitness to plead in the Crown Court… for context

The procedure for fitness to plead in the Crown Court is well established and neatly codified in the (somewhat antiquatedly titled) Criminal Procedure (Insanity) Act 1964. The test for fitness to plead is set out in Pritchard (1836) 7 C & P 303.

In short, the issue should be dealt with as soon as it arises, but determination may be postponed up until the opening of the defence case (to allow an prosecution case insufficient for conviction to be so adjudged). The determination of fitness by the Judge can only be made on the evidence of two medical practitioners, one of whom is duly approved by the Secretary of State.

If the Defendant is judged not fit to stand trial, a jury are empaneled to determine whether ‘he did the act or made the omission charged against him’ (a thorny issue discussed below). This is colloquially known as an ‘actus reus’ trial or a ‘fact finding’. A positive response empowers the Crown Court to make a hospital order, supervision order, or order an absolute discharge.

Capacity to Give Instructions

Having identified that a client may not be fit to plead, the first hurdle is often determining whether they have capacity to give instructions. If the conclusion is that they do not, guidance should be sought from either the SRA or Bar Council (For those to who the Bar Standards Board code of conduct applies, there is useful guidance on the Bar Council website).

(Non) applicability of Crown Court Regime

Confusingly, and for no particularly apparent reason, the neatly codified regime in the 1964 act is not applicable in the Magistrates’ Court. Instead a ‘complete statutory framework’ for matters subject to summary jurisdiction (including mode of trial proceedings) is found in a combination of:

  1. 11(1) Powers of Criminal Courts Sentencing Act 2000 –

If, on the trial by a magistrates’ court of an offence punishable on summary conviction with imprisonment, the court—

(a) is satisfied that the accused did the act or made the omission charged, but 

(b) is of the opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined,

the court shall adjourn the case to enable a medical examination and report to be made…

  1. 37(3) Mental Health Act 1983 –

Where a person is charged before a magistrates’ court with any act or omission as an offence and the court would have power, on convicting him of that offence, to make an order under subsection (1) above in his case, then, if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.

The Magistrates Court can only exercise these powers where the summary offence is imprisonable – the position for lesser offences is not at all apparent.

The most important (and confusing) difference…

… is the order of events. The Magistrates Court must first determine that the Defendant carried out the acts alleged then hear medical evidence about the Defendant.

It follows that there is no framework within which a ‘fact finding’ hearing is triggered – it is simply a matter of case management.

Bizarrely, it is entirely possible for the Court to hold a full fact-finding hearing only to subsequently conclude that the Defendant does not require treatment, thus triggering a ‘retrial’ of the same events.

Scope of the ‘fact-finding’ hearing

As the Court is only concerned with whether the actus reus of the offence was committed, the Defendant’s mental state is irrelevant.  This would seem to preclude issues of mistake, self-defence, belief in lawful authority, duress and the like. However, the situation is far tricker, and in fact depends on the extent to which the prosecution case discloses such a defence per se. For example, if a witness saw the Defendant walk absent-mindedly around a shop before leaving without payment, it would be entirely proper for the Court to conclude that Crown had not proved the act was not the result of a mistake.

Whether the Defendant can give any cogent evidence of the alleged acts will of course vary from case to case, but there is not hard and fast rule that the Defendant cannot give evidence in a trial of fact – see R v Antoine [2000] 2 WLR 703. Similar considerations may apply to the reading of a Defendant’s interview – which should be treated with extreme care – particularly where there is doubt as to the understanding of the caution.

The usual rules of evidence should be applied during fact-finding hearings, and it is not appropriate for the Crown to adduce evidence other than through the proper channels – i.e. the calling of witnesses, statutory hearsay and agreement through s.9 or 10 of the Criminal Justice Act 1967.

‘Sentencing’ Options

Importantly, a fact-finding hearing does not necessarily result in a conviction, as any mental element of the offence has not been proved. The usual sentencing options do not apply, and the only options are those set out in s.37 above – a hospital order or a supervision order.

Before imposing either option, the Court must receive evidence from two medical practitioners, one of whom is duly registered, and be of the view that ‘having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section’.

s.11 of the Powers of Criminal Courts Sentencing Act allows the court upon adjourning to remand individuals on bail for a maximum of four weeks at a time, or in custody for a maximum of three. In addition to the usual concerns as to bail, the Court must impose conditions ensuring the individual make himself available for enquiries and / or reports, and must explicitly require the Defendant to attend for and undergo medical examinations. The explicit wording can be found in s.11(3) PCC(S)A.

Unlike the powers of the Crown Court, the ‘complete statutory framework’ for the Magistrates’ Court does not allow for an absolute discharge. However, their imposition appears to have become common practice and it is very unlikely any appeals will follow. Technically however, the power to absolutely discharge under s.12 Powers of Criminal Courts (Sentencing) Act 2000 is only available where a defendant has been convicted. It is therefore unlikely to be appropriate to make submissions urging this order.

Smoothing the process

Given that individuals with mental health difficulties are far more likely to find themselves involved in the Criminal Justice System than those without, being alive to possible issues early after instruction is crucial. Where there is sufficient concern, prior authority from the Legal Aid Agency for reports can significantly mitigate against the common refusal of the Magistrates to grant adjournments, and ensure that mentally unwell defendants are not subjected to inappropriate penalties.

Authorities:

a) R v Metropolitan Stipendiary Magistrate ex parte Aniifowosi, Times, August 5, 1985 – no power to commit to Crown Court for fitness to be determined;

b) R (on the Application of P) v Barking Youth Court [2002] EWHC Admin 734 – ‘complete statutory framework’ also applicable in the Youth Court;

c) R v Lincolnshire (Kesteven) Justices, ex parte O’Conner [1983] 1 WLR 335 – summary regime applies to mode of trial;

d) R v Antoine [2000] 2 WLR 703 – limit to defences that can be advanced in a fact-finding hearing, Defendant’s role;

e) R v Swinbourne [2013] EWCA Crim 2329 – where a finding of unfitness had been made in the Crown Court and the Defendant gives evidence and / or his interview is admitted, the Court should be satisfied by expert evidence that his account is likely to be reliable.


Mike Blitz is well regarded for his thorough knowledge of criminal law and procedure, and is happy to assist with any enquiries arising out of this article.

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