Unfitness to Plead and the Trial of Facts: A Critical Review of the Law Commission's Proposals and the Decision in R v MB

AuthorHelen Howard
DOI10.1350/jcla.2012.76.5.796
Date01 October 2012
Published date01 October 2012
Subject MatterArticle
Unf‌itness to Plead and the Trial
of Facts: A Critical Review of the
Law Commission’s Proposals and
the Decision in Rv MB
Helen Howard*
Abstract The Law Commission published Consultation Paper No. 197 in
October 2010 on unf‌itness to plead. This article will focus on the trial of
facts hearing and the Law Commission’s proposals in this regard. An
examination will also be made of the Court of Appeal’s judgment in Rv
MB given since the publication of the Law Commission Consultation
Paper. The preferred route chosen by the Law Commission will be advo-
cated, subject to concerns of properly balancing the need to protect both
the vulnerable defendant from an unfair hearing and the public from the
dangerous individual.
Keywords Unf‌itness to plead; Actus reus; Law Commission Con-
sultation Paper No. 197; Trial of facts; Criminal Procedure (In-
sanity) Act 1964, s. 4A
Previous articles have examined the current law on the test for unf‌itness
to plead: the proposed test based on a lack of decision-making capacity,1
and the potential for overlap with the doctrine of doli incapax.2This
article will consider the current law on the trial of facts, the s. 4A
procedure,3which takes place where an individual has been found unf‌it
to plead in order to examine its shortcomings and the reasons behind the
need for reform. It will then go on to examine critically the Law
Commission’s proposals for a new type of hearing. Critics4and the Law
Commission5agree that the current s. 4A hearing is no longer appro-
priate in its current form and that it is time to incorporate consideration
of at least some aspects of mens rea into the hearing. The recent judgment
of the Court of Appeal in R v MB,6made subsequent to the LCCP, aptly
illustrates the problems of artif‌icially separating the terms actus reus and
* Senior Lecturer in Law, Teesside University; e-mail: H.A.Howard@tees.ac.uk. The
writer is grateful to Tenney Cotton and Cath Crosby, Teesside University, for their
comments and advice.
1 H. Howard, ‘Unf‌itness to Plead and the Vulnerable Defendant: An Examination of
the Law Commission’s Proposals for a New Capacity Test’ (2011) 75 JCL 194.
2 H. Howard and M. Bowen, ‘Unf‌itness to Plead and the Overlap with Doli Incapax:
An Examination of the Law Commission’s Proposals for a New Capacity Test’
(2011) 75 JCL 380.
3 Criminal Procedure (Insanity) Act 1964, s. 4A, as amended by the Criminal
Procedure (Insanity and Unf‌itness to Plead) Act 1991.
4 See especially R. D. Mackay and W. J. Brookbanks, ‘Protecting the Unf‌it to Plead: A
Comparative Analysis of the “Trial of the Facts”’ (2005) Juridical Review 173.
5 Law Commission, Unf‌itness to Plead, Law Com. Consultation Paper No. 197 (2010)
(hereafter ‘LCCP’), para. 6.70.
6Rv MB [2012] EWCA Crim 770, [2012] 2 Cr App R 15.
421The Journal of Criminal Law (2012) 76 JCL 421–430
doi:10.1350/jcla.2012.76.5.796

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