Fitness to be Tried in UK Law

I accept that it may be wrong or oppressive to do so if the inevitable result will be that he will be found unfit. But even in those circumstances, there may be countervailing considerations.

Article 49(3) is also, in my judgment, important in the context of deciding whether or not the Article, as a whole, authorised arbitrary detention. Article 49(3)(a) allowed the court to postpone the issue of unfitness to be tried to any point in time until the beginning of the case for the defence.

An assessment of whether a defendant has the capacity to participate effectively in legal proceedings should require the court to have regard to what that legal process will involve and what demands it will make on the defendant. It should be addressed not in the abstract but in the context of the particular case. (See, for example, Walls [2011] EWCA Crim 443; [2011] 2 Cr App R 6) The effectiveness of such measures can only be assessed in the context of the particular proceedings.

Whether one views the matter through domestic or European spectacles, the answer is the same: the purpose and function of the section 4A procedure is not to decide whether the accused person has committed a criminal offence. The procedure can result in a final acquittal, but it cannot result in a conviction and it cannot result in punishment.

Section 2 of the 1957 Act only comes into play where all the ingredients of murder are established against the defendant. Section 2 of the 1957 Act only comes into play where all the ingredients of murder are established against the defendant.

In the circumstances of the present case, however, it is unnecessary for us to reach any conclusion on that issue, since we are satisfied on the particular facts that the conditions for detention, albeit not considered in terms under the statutory procedure, were in fact met. All the experts who gave evidence in the s.4A proceedings were of the view that the appellant suffered from mental impairment within the meaning of the Mental Health Act 1983.

If there is objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the "act" unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence.