Unfitness to Plead: Expanding the Scope of ‘Objective Evidence’ on the ‘Trial of the Facts’
| Published date | 01 June 2015 |
| Author | Kevin Kerrigan,Natalie Wortley |
| DOI | 10.1177/0022018315589030b |
| Date | 01 June 2015 |
| Subject Matter | Court of Appeal |
means the same money has been ordered to be repaid twice. This was determined to be inappropriate in
Ahmad and Fields.
Either L must have been impecunious, thus ensuring there was no double recovery, or Ahmad and
Fields has been ignored. Assuming L was impecunious, it is difficult to see how an order that the Appel-
lant should pay the whole sum is proportionate. A more just approach might have been this: on the
Appellant’s own case, of the £3,537 paid into account 001, only £1,500 was transferred out of that
account into 107 for L’s benefit. A ruling that the remainder was the Appellant’s benefit would have
been proportionate, removing the proceeds of his crime from him, without operating as a fine.
There may be an unintended consequence to the Court of Appeal’s approach in this case. Section 22
POCA enables the prosecution to apply to the Crown Court for reconsideration of a defendant’s available
amount. AssumingL was impecunious whenconfiscation proceedings concluded, what will happen if the
prosecution seeks in the future to reconsider the available amount in respect of L? This might arise if
either monies come to light that L had hidden, or L subsequently earns/receives money. Even though L
was more involved in the original offending, he would be able to rely on Ahmad and Fi elds to say that
no further order against him should be made as the prosecution has already received its money f rom
the Appellant.
Most of these difficulties would have been avoided if either the judge in the court below had made a
proportionate order, or he had made findings of fact in respect of the use of the accounts, as suggested by
the Appellant’s counsel on appeal. The situation where a basis of plea is accepted for the purposes of
sentence, but contested by the prosecution at confiscation, is apt to lead to confusion, unnecessary litiga-
tion, and a lingering sense of injustice, as here.
Gavin A Doig
Unfitness to Plead: Expanding the Scope of ‘Objective Evidence’ on the ‘Trial of the Facts’
RvWells, Masud, Hone and Kail [2015] EWCA Crim 2
Keywords
Unfitness to plead, s. 4A hearings, actus reus,mens rea, objective evidence, self-defence
The four conjoined appeals dealt with in this judgment raise similar issues concerning the operation of
the ‘trial of the facts’ procedure, which follows a finding that the accused is unfit to plead.
RvWells
W and B were drinking companions. W was charged with murder, having stabbed B 38 times to the neck,
chest and back with a butterfly knife. W made a 999 call from the scene, in which he claimed that B had
attacked him and that he had taken the weapon from B and used it to defend himself. W maintained this
version of events in subsequent police interviews. W had a one-inch laceration to his right wrist and a
small cut to his little finger. The issue on appeal was whether the trial judge had been correct to rule that
evidence of W’s pre-trial claims of self-defence was inadmissible.
RvMasud
M was charged with attempted sexual assault after he tried to touch the breast of a 14-year-old girl who
sat next to him on a bus. M’s counsel contended that the trial judge had erred in admitting M’s previous
conviction for a similar offence as evidence of bad character.
160 The Journal of Criminal Law 79(3)
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