Fitness to Plead in UK Law

The fact that the issue to which the fresh evidence relates was not raised at trial does not automatically preclude its reception. However it is well understood that, save exceptionally, if the defendant is allowed to advance on appeal a defence and/or evidence which could and should have been but were not put before the jury, our trial process would be subverted.

Unless there is contemporaneous evidence to suggest that notwithstanding his plea and the apparent satisfaction of his legal advisers and the judge that he was fit to tender it, and participate in the trial, it will be very rare indeed for a later reconstruction, even by distinguished psychiatrists who did not examine the appellant at the time of trial, to persuade the court that notwithstanding the earlier trial process and the safeguards built into it that the appellant was unfit to plead, or close to being unfit or that his decision to deny the offence and not advance diminished responsibility can properly be explained on this basis.

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.

We do not consider that we should determine, as the position currently stands and in the light of our decision in relation to s.91, what conclusion on the issue of fitness for trial might be open to the court in South Africa at an appropriate time, given the limited nature of the respects in which the appellant is unfit to stand trial and the prospects of the appellant's recovery: (cf Re Davies (transcript, 30 July 1997), R(Warren) v Secretary of State for the Home Department [2003] EWHC 1177 Admin at paragraphs 26–28, United States of America v Tollman [2008] 3 All ER 150 at paragraphs 162–172 and Lynch v The High Court in Dublin [2010] EWHC 109).

The words "in an appropriate case" are important, because the Board sees considerable force in the observations of both Archie CJ in Pitman and Narine JA in Hernandez that it is unsatisfactory that the mental condition of defendants should be raised for the first time only on appeal, and often many years after the trial. Not only must the evidence appear credible but the explanation for its absence at trial is very relevant to the exercise of the discretion.

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.

In the context of a defendant with communication problems, when every sensible step taken to identify an available intermediary has been unsuccessful, the next stage is not for the proceedings to be stayed, which in a case like the present would represent a gross unfairness to the complainant, but for the judge to make an informed assessment of whether the absence of an intermediary would make the proposed trial an unfair trial.