The Assizes
| Published date | 01 October 1957 |
| DOI | 10.1177/002201835702100402 |
| Date | 01 October 1957 |
| Subject Matter | Article |
The
Assizes
BURDEN OF PROOF MUTENESS OF
MALICE:
FITNESS TO PLEAD
ON
loth
and
r
rth
July, 1957, Salmon, J., in a case tried by
him at Birmingham Assizes, decided several points
relating to
burden
of proof and other matters where issues of
muteness of malice and fitness to plead are raised.
The
prisoner,
on
being arraigned on an indictment containing a
number
of
counts charging
him
with indecent offences on young girls,
stood mute. A
jury
was
then
sworn to
try
the preliminary
issue whether he was
mute
of malice or by visitation of God.
Salmon, J. ruled
that
the onus was on the prosecution to prove
malice
and
that
the
standard of proof was
that
normally
resting on
the
prosecution to prove guilt in a criminal case
and
not
the
mere balance of probabilities.
The
prosecution opened
their case on this issue
and
the defence, after also calling
witnesses, made the first address to the jury.
The
jury
found
that
the prisoner was mute by visitation of God.
The
prosecution then submitted to the judge
that
there
were two further questions which should be left separately
to the
jury:
(I) whether the prisoner was fit to plead, and
(ii) whether he was fit to stand his trial. Salmon, J. ruled
that
there was one issue only:
"whether
the prisoner is capable of
pleading to
and
of taking his trial on the indictment",
and
that
aprisoner is usually presumed to be fit to plead;
but
that,
if in any particular case
the
court has reason to
doubt
his
fitness, it is its duty to inquire into the matter and
that
the
onus is then on the Crown to begin
and
to prove fitness. He
further said
that
he proposed to direct the
jury
that, if they
should find
that
the prisoner was incapable of communicating
with his legal advisers, they should find
that
he was unfit to
plead.
The
same
jury
as had tried the issue of malice were
resworn to
try
this further issue,
but
Salmon, J. directed that,
as this further issue was entirely different from the earlier one
and
might have been tried by a fresh jury,
the
prosecution
must
again adduce the evidence given on the earlier issue.
The
jury
found that the prisoner was capable of pleading
to and of taking his trial on the indictment,
and
the trial
then
proceeded on the general issue.
3°2
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