Unfitness to plead: the fall (and rise?) of mens rea

Kerrigan, Kevin and Wortley, Natalie (2015) Unfitness to plead: the fall (and rise?) of mens rea. In: Society of Legal Scholars Annual Conference, 1st - 4th September 2015, York.

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Abstract

There has long been controversy about the process for dealing with a defendant who is unfit to plead to a criminal charge. Although an unfit accused cannot be convicted of an offence, the current law requires a “trial of the facts” to establish whether s/he, “did the act or made the omission charged” (Criminal Procedure (Insanity) Act 1964, s.4(A)2). The accused is entitled to an acquittal if this cannot be proved to the criminal standard (s.4A(4)) but may be subject to coercive orders, including hospital detention, if it is (s.4A(3) and s.5). The leading case of R v Antoine [2000] 1 AC 340 established that the mental element of the offence was not relevant at this stage of the process so that the Crown only had to prove the conduct associated with the offence. This has been subject to extensive academic and professional criticism, including most recently the Law Commission identifying risks of, “considerable unfairness”, “lack of consistency” and “problems of coherence”. Overall it was said to be “demonstrative of a fundamental unfairness in the current law.” (Law Commission, Unfitness to Plead: An Issues Paper, 2 May 2014.)
In R v Wells [2015] EWCA Crim 2 the Court of Appeal considered and rejected four appeals based on claimed restrictions on the accused’s ability to raise defences during the trial of the facts process. While applying the Antoine approach, the Court of Appeal noted the Law Commission’s critique and recognised that the current formulation generates of number of problems. The Court emphasised the flexibility in the current law and intriguingly suggested that further protections for the accused could be devised so long as the Crown is not required to prove all the ingredients of the offence.
This paper will test the limits of the current law to establish whether a coherent and fair process is feasible given a flexible approach to Antoine or whether, as suggested by the Law Commission and others, a new statutory regime is required which brings back consideration of mens rea.

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