Acts and Facts
| Author | Stephen White |
| DOI | 10.1177/002201839806200407 |
| Published date | 01 August 1998 |
| Date | 01 August 1998 |
| Subject Matter | Article |
ACTS
AND
FACTS
Stephen
White
Summary: Since the Criminal Procedure (Insanity and Unfitness to Plead) Act
1991 there has had to be a 'trial
of
the facts' to determine whether a defendant
found unfit to be tried 'did the act or made the omission chargedagainst him as
the offence' In Egan (below) the Court
of
Appeal held that by the 'act' was
meant all elements
of
the
offence.
This
holding,
whilemeritorious, plainly violates
the intention
of
the 1991 Act, ignores the history
of
the phrase 'act charged as
an offence', and is inconsistent with themeaning that has to be attributed to the
phrase when the jury are considering whether to return a special
verdict
of
insanity. It also makes for a further anomaly when a defendant unfit to be tried
seeks an acquittal on the ground that he lacked mens rea because
of
insanity.
The proposals
of
the Law Commission'sCriminal Law Team for 'Counts in an
Indictment' will go some, but not necessarily the
whole,
way to helping courts
identify exactly what is the 'act chargedas the offence'.
'An act charged as an offence'
What has to be proved when a defendant has been found unfit to be tried
and an inquiry ('a trial of the facts') is embarked upon, under the Criminal
Procedure (Insanity and Unfitness to Plead) Act 1991, to determine
whether he 'did the act or made the omission charged against him as the
offence'? Although in Bradford Crown Court,
ex
parte
Bottomley' the
Divisional Court said, obiter, that such an inquiry is limited to the actus
reus of the offence, in Egan' the Court of Appeal ruled that the inquiry
may extend to its mens rea as well. Mackay and Kearns' drew attention to
the fact that this departs from the Act's intention.
It
is clear from the
parliamentary debates that both the sponsor of the Bill, which was a
private member's one, and the Home Office, which supported it, intended
that the trial of the facts should be limited to the actus reus" and, as
Mackay and Kearns point
out,'
this understanding informed the
advice given in the Home Office circular consequent upon the passage of
the Act.
1This does not appear from the report at
[1994]
Crim LR 753, but can be found in
LEXIS, Enggen Library, Cases File (16 March 1994).
2(1997) 35 BMLR 103:
[1997]
Crim LR 225.
JRD Mackay and G Keams, 'The Trial of the Facts and Unfitness to Plead'
[1997]
Crim
LR 644.
'Cf
Professor Smith's comment on Egan at
[1997]
Crim LR 226.
sOp cit, note 3 above.
360
To continue reading
Request your trial