The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00931.x |
| Published date | 01 July 1992 |
| Author | Phil Fennell |
| Date | 01 July 1992 |
July
19921
The Criminal Procedure (Insanity und Unfitness to Plead) Act
I991
The
Criminal
Procedure
(Insanity
and
Unfitness
to
Plead)
Act
1991
Phil
Fennel1
*
Introduction
In
recent years, the procedures and criteria by which defendants are found
unfit
to plead
or
not guilty by reason of insanity (the special verdict) have come
in
for
frequent criticism. Under the Criminal Procedure (Insanity) Act
1964
the automatic
consequence of a finding of unfitness to plead
or
a special verdict has been that
the defendant is made subject to a hospital order
with
restrictions without limit of
time under sections
37
and
41
of the Mental Health Act
1983.
The effect of a
restriction order is that the patient may be detained indefinitely, and may only be
discharged by the Home Secretary
or
a Mental Health Review Tribunal (MHRT).
Hence, a defendant found unfit to plead under the
1964
Act lost his right to be tried
and faced potentially indefinite detention
in
hospital for a crime which he might
not have committed.'
Two cases highlighted the potential injustices. The first was that of Glenn Pearson,
a mentally handicapped man who was found
unfit
to plead to an indictment of stealing
three light bulbs and five pounds. He was ordered to be detained under a restriction
order at a mental handicap hospital. His appeal against his detention was heard by
a MHRT after three months. His discharge was ordered by the tribunal because,
although mentally handicapped, he was not suffering from mental impairment, which
requires abnormally aggressive
or
seriously irresponsible conduct.2 Because a
tribunal has a duty to discharge a patient who is not suffering from mental disorder
within the meaning of the Mental Health Act
1983,
Glenn Pearson was discharged
to his home..' The second case was that of Valerie Hodgson who is mentally
handicapped and lived
with
her father. One morning she found her father's body.
He had been stabbed in the chest. During interviews with the police, she confessed
to the murder. She was found
unfit
to plead and was detained
in
a secure hospital.
Fourteen months later, new evidence emerged, and her nephew was convicted of
the murder.
The insanity defence lost its attraction after the introduction of the plea of
diminished responsibility to murde~,~ and because under the
1964
Act the auto-
matic consequence of a special verdict was the imposition of a hospital order without
limit
of time.' Defendants were therefore unlikely to raise the defence.
In
fact, the
*Lecturer in Law. Cardiff Law School.
1
should like to thank my colleague Stephen White and the anonymous MLR reader for their helpful comments
on
an earlier draft.
Between
1976
and
1988, 295
defendants were found unfit to plead. For an analysis of these cases,
see D.H. Grubin. 'Unfit to Plead
in
England and Wales.
1976-88
-
A
Survey'
(1991)
Briti.sh Journal
of
Psychiatry
158. 540-548.
Mental Health Act
1983,
s
I(2).
Christopher Emmins, 'Some Thoughts Prompted by Glenn Pearson's Case'
119861
Crim LR
604:
Paul
Bacon, 'Unnecessary Detention: The Criminal Procedure (Insanity) Act
1964' (1989) 86
LCIw
Soc
Guz
19.
Homicide Act
1957,
s
2.
Report
ofrhe
Committee
on
Mentally Disordered Off?nders
(The Butler
Committee)
(1975)
Cmnd
6244.
at pp
218-219.
R.D. Mackay. 'Fact and Fiction about the Insanity Defence'
119901
Criin
LR
247-255.
I
2
3
4
5
Tlit
Modern
LUW
Re~ien,
55:4
July
1992 0026-7961
547
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