Unfit to Plead in the Mags Court

this is data laws, Webinar. And so I told Unfit to plead question Mark going to look at fitness to plead its a loose term in the Magistrates court. It means something a little difference in the Crown Court. We'll start with a magistrate school. We'll look at the Crown Court on what Orson conclusions. This is an area that causes lots of upset and confusion in the Magistrates court. Amongst legal, I've always is amongst prosecutors, Onda amongst the defense. The start point under the Mental Health Act is a section 37 3 when a person is charged before a Magistrates court with any act or omission, as an offense on the court would have power on convicting him of that offense to make an order under subsection one above in his case. Then, if the court satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, makes such an order without convicting him. Subsection Warm provides either for detention in the mental hospital, which will be under the Mental Health Act or for the making of a guardianship order, which is something generally ever seen in the community. by social services rather than probation. So what are those definitions mean? Well, it refers to a Magistrate Court Side of Interpretation Act. It means the Magistrates Court on the youth court. It doesn't mean the crown cools. The Magistrates Court don't have the power to inquire into these matters if it's an indicted will, only matter that's being sent. Indeed, it's difficult to see these days how it would apply in the Magistrates Court, whether it's indicted or either way, if the defendants being sent. If the court formed the view that he's suffering from a mental disorder under subsection 37 to and it's of such a nature and degree that warrants his detention in hospital for medical treatment on that treatment is available or he's over 16 on a guardianship, orders warranted. And it's the most suitable way of dealing with the offender having regard to him the circumstances of the offence on other matters before the court. Then it would be able to make the hospital or guardianship order. If the court thinks that that is a possibility than rather than the traditional guilty or not guilty trial, the court go on to hear evidence to decide whether or not the defendant did the act or made the omission that constitutes the offence. If they find he did do the act or made the omission, he's not found guilty or not guilty, he simply found, have done the act. That's not a verdict. And as we'll see later, it means that in most cases it's not going to be possible to impose any ancillary orders because their dependence on a guilty verdict or, in the case of Rassmann prosecutions can also be made after an acquittal. So how is this going to be raised in the magistrate schools? Well, it's generally going to be raised by the defendants. There might be circumstances where the court raises of its own disorder. It's possible the prosecution could raise it. But the defense is going to have to prove that the issue. If it Mr Plead, how are they going to do that? Well, the written evidence or evidence of two medical practitioners is required. Section 37 doesn't talk about the necessity for one or both three Section 12 approved, which is slightly different to the Crown court. But if there's medical evidence from two medical practitioners that the defendant suffers a mental disorder as defined by the Mental Health Act. Then the court is satisfied that he is unfit in that sense, can then go on to inquire whether or not he did the act or made your mission. If that happens and he is found to have made the actor mission, then there's the option of a hospital order or a guardianship border. There's no provision, unlike the Crown Court, to make an absolute discharge. If the defendants under 16 the hospital order can't be made. And so there are difficulties in some cases. If the defense could assert that the defendant WAAS suffering from mental disorders such as would warrant hospitalization or guardianship order and he was under 16 then it's likely that on production of such evidence, the prosecution would question where the public interest lay and would probably decide not to proceed. A bit of case Law blew a and bath on one site Magistrates Court. The defendant will need to obtain and serve up to date evidence from experts to show the issue of mental disorder and then having done that, if the court think that it might resort in a mental health disposal or guardianship order. Then they should go on to try the act. If having heard the evidence there, sure he did the act or omission, then they'll need to have a statutory medical report. It may be that the court want the defense to obtain this. That's only going to happen, of course, if the defense can get prior authority from the legal aid agency. Unless the client is in funds and is willing to pay for such a report. Otherwise, the court will have to obtain it. Providing the evidence comes from the two medical practitioners that the defendant is suffering in the way described under section 37 subsection two, which we mentioned earlier then one or other disposal, hospital order or guardianship border could be made. Let's imagine there's a question over whether or not he should be going down the fitness to plead all the insanity route singing Stratford Magistrates says in this situation, because insanity is that is a defense. But if the defendant is unfit to plead, then it makes it difficult for him to participate in the trial. They should determine the issue of fitness to plead first and then if the quarter. Not satisfied whether he did the actor remission. He's entitled to be acquitted. He doesn't have the right to have a trial and raise insanity first, As the finding and fitness to plead isn't a conviction, it would be open to the court to carry on and try him to see whether the insanity defense is made out. But they wouldn't have to convict him or acquit him in those circumstances. That could make a Section 37 3 order based on what they learned in the earlier proceedings. It's unclear why court would want to do that in this day and age, and so it's unlikely to be a popular suggestion. It is a factor that might be considered by the court when allocating the matter. But play before venue remote a trial if it's going to be complex or this low likelihood ever mental health disposal without restriction, which is the more serious disposal. The court might take the view this is complex and send it to the Crown court, even if it's factually simple and not particularly serious when allocating. If the Magistrates retain jurisdiction and the defendant doesn't elect for some reason, then things suggest the matter be put before a district judge for case management on patrol. So let's imagine it's accepted by everybody that the defendant is unfit to plead in that loose term in the Magistrates court. What does the prosecution need to prove? Well, they only need to prove for in the case of Antoine in 2000 the actors race of the offense. If they can't prove that, then the defendant's entitled to be discharged in vulture and South End Magistrates Court. The high court held that where a section 37 order no longer serves any purpose, the court could reopen the matter under Section 14 to the Magistrates Courts Act and try the defendant that might come into play. For example, the defendant doesn't fit the criterion for a hospital order under 37 3 Nor does he fit the criteria for guardianship order. There's no other way of disposing off him. If there's been a trial of the act so the court could re open and, for example, try him in order to impose an absolute or conditional discharge. All it may be that representations made to the prosecution and having regard to the amount of time. Perhaps he spends on remand in a hospital. Whilst matters result, it might be concluded that if the matter would be reopened, it would be in the interests of everybody to offer no evidence because of the public interest concerns. The difference post conviction will need to obtain a medical report unless the court is going to do this. That needs to come from a suitably qualified medical practitioner and will generally be from the practitioner who is going to be responsible for the defendant. If a hospital orders made it is not already in hospital, he could be remanded to hospital under Section 11 of the Powers of Criminal Court Sentencing Act. He could also be remanded into custody under the Bail Act. For example, if the court believe that he's unlikely to cooperate in the preparation of reports, you might already be in hospital, in which case it's going to be a lot easier to get that report. But remember, however the report comes, whoever it comes from, it must comply with Part 19 of the criminal procedure rules on the practice direction. Let's imagine matters need to be adjourned for the preparation of medical reports to deal with Dispose or Section 38 of the Mental Health Act gives the court of power to make interim orders again. You need the written or oral evidence of two medical practitioners that the defendant suffers from a mental disorder as defined by the act. There is reason to suppose the disorder may make a hospital order appropriate. There's a bed available within 28 days. Andi. There's a report from either an approved clinician who is going to be responsible for the defendant if he's hospitalized or from someone on behalf of the management of the hospital. On that demon will demonstrate The arrangements for admission to hospital have been made on that you can take up a bed within 28 days. There are provisions, for example, if there is a bed available but suddenly becomes unavailable, E. G due to an emergency and there's you confined under section 37. So, for how long come an interim reminds bay? Well, it can't overall last longer than a year. The court could make an initial remand for 12 weeks, but there, after its renewable 28 days, until either the defendant's disposed off, all the 12 months is up. Each time the court considers a remand under Section 38 it needs those two medical reports. What about committal for sentence? Well, if the court took the view that the defendant ought to be made the subject of a mental health order without restriction of time, something only the crown cork and do, then it may wish to commit the matter for sentence on the Mental Health Act. Section 43 permits that ancillary orders we've mentioned this isn't a verdict. If he's been found unfit to plead in inverted commas, Chin Gondo uh, 2015 sets out the finding that the defendant did. The act is not a verdict for the purposes of the Criminal Procedure Insanity Act. That's the provision that covers the Crown. Court doesn't have any influence over the Magistrates court, but the analogy must be clear between a finding that he did the act in the Crown Court on a finding that he did the act in the Magistrates Court. So, arguably in the Magistrates court, a verdict that depends on a conviction or acquittal is not available. If he was found to have done the act or made the omission. So turning to the Crown Court, things are a bit more clear and straightforward. For a start, there's a statutory procedure, the Criminal Procedure Insanity Act Under Section, for it sets out the Pritchard criteria, which is extremely elderly. The question of whether or not the defendant is under a disability is going to be resolved by the judge after he's read, uh, and heard from two registered medical practitioners, one of whom has to be Section 12 approved. So you might read one report on her the evidence or really from another, Or he might hear both orally. But he's got to hear it. Least one. If the defendant is found unfit to plead by the judge, then there'll be a jury impaneled on. The prosecution will need to prove the defendant did the act if it is proved it on the act. The disposals that follow are an absolute discharge, which we now know is not available in the Magistrates Court, a supervision order which is like a guardianship order and supervised by social services or a hospital order. The Pritchard criteria included matters whether or not the defendant has sufficient intellect to instruct solicitors and counsel does he have sufficient intellect to plead to the indictment and to challenge jurors, understand the evidence on to give evidence? But it doesn't necessarily mean that somebody who's intellectually functioning is not under a disability, because that's the test. Whether or not someone's under a disability in sharp, the defendant was unable to communicate with his legal team and that rent him unfit under a disability is it would now be called in Padilla. The appellant maintains his an easier surrounding the events in question meant that he was on fit. But the Court of Appeal rejected that was amounting to unfitness. In a far more recent case of Letterman, an elderly man involved in a fatal road traffic accident is attested to mental fragility, and the fact he felt suicidal did not amount to unfitness, in fact, that I was held largely in his absence, and he was convicted. Section four says that the section applies where on the trial of a person, the question arises, whether the instance of the defense or otherwise, whether the accused is under a disability, that is to say, under any disability, such that apart from this act, it would constitute a bar to his being tried. Andi. If having regard to the nature of that supposed disability the quarter of the opinion that it's expedient to do so on din the interests of the accused, they can postpone consideration of the question of fitness to be tried and so any time up to the opening of the case for the defense going to see an example of when it was raised later. Still, and there's our statutory obligation of subsection six not to make the determination, unless the court half the written or oral evidence of two or more registered medical practitioners, at least one being Section 12 approved. What if the two different reports reach different conclusions? Well, according to Letterman, if two experts disagree, able fitness to plead, then he can't be found unfit. The matter then go before a jury who will determine whether or not the defendant did the actual remission. What is the defender becomes unfit during the trial? Well, that's foreseen in the statute subsection for a subsection five, where the question of disability was determined after the arraignment of the accused Normal. Of course, the defendant would not be arraigned in these circumstances, but sometimes the disability, and he becomes apparent later. Then the determine on determination under Subsection two is to be made by the jury. So it's going to be part of the jury trial that trials already up and running it then becomes apparent that the defendant is potentially under disability. The court will lead to determine whether or no he is under the disability and that will be done by the jury in those circumstances. Let's look at the situation where the actors race on the men's rare of the offense is so interdependent that it won't be possible to prove whether or not the defendant did the act or made the omission. In the case of Burke, the defendant was being tried for a friends of voyeurism. They're several component parts of the prosecution need to prove they need to prove that he's observed somebody doing a private act, which is normally a sexual act, or some other act which would not normally be done other than in private aunt. He's observing the other person doing that act in order to obtain sexual gratification for himself. Andi, it must be proven that he knows that the person is watching doesn't consent to being observed for the defendant. Sexual gratification. Have a look at those parts of the offense. Make sure it's clear in your mind, because what the Court of appeal here said is the prosecution must prove the defendant's state of mind. Namely, that he's doing this to obtain sexual gratification. And he knows the other person doesn't consent to being watched as they do the private act. So the actress, rest of men's rare here are so interdependent upon one another that the offense unnecessarily embraces a state of mind. You can't prove the offense if you can't prove the men's rail. Sometimes you'll come across similar offenses, not necessarily sexual. But those were the men's rare, and actors raise a co dependent. And in such cases, it would be difficult for the defendant to be other than acquitted. Has something to take into account of your charging lawyer or a reviewing lawyer where fitness to plead becomes an issue. If you're defending, be alive to the fact that where the actus razor men's rare are intertwined, it may not be possible for the prosecution to proceed following Bert, and you might want to make representations. We considered early wrong. That fitness to plead in the Crown Court could be raised up to the time the prosecution case is closed. But in all recently, the trial judge discovered that the defendant was unfit. One to go cross examination. There's no suggestion that the defendant was trying on all messing anybody about, but the judge found he was unfair. He carried on. He explained the problems. The jury said not to blame the defendant, not to speculate on what he might or might not have said had given evidence, and he was convicted or appealed. Lady Justice Makar gave the judgment were particularly listed in Paragraph 29 30 where, she says, once the issue of fitness to plead has been raised, it must be determined in this case. Judge explicitly found that the appellant had not had been fit to participate in trial up to the point across exam and thereby implicitly determined that the appellant was no longer able to fully participate in his trial within the Pritchard criteria. So in the circumstances, she says, the judge should have gone down the criminal procedure insanity at route set out section. For I, she said, we agree with the submission from Wars Council. It is that it's a statutory mandate, a requirement which can't be avoided by the courts, general discretion toward the proceedings. Otherwise, however beneficial to the defendant, they might appear to bay what here? The trial judge thought that he was doing the right thing. It follows that in this case, the jury should not have been allowed to return a verdict other than a verdict of acquittal if they weren't satisfied on the evidence already given in the trial that the appellant did the act charged against him so that you should have stopped at a point where it was acknowledged the defendant was unfit and should therefore have left the matter of whether or not the defendant was fit to plead to the jury. What both sets of proceedings crown of Max have in common is this. The defendant may refit to plead once his vulnerabilities and special measures have been factored in. It's going to be rare that someone's to disadvantage. To be tried. You want to look at the criminal practice direction at Chapter One Paragraphs, three D to G on Chapter five, paragraph 18 a two day that will help you identify vulnerable defendants what their rights are on what should be done in court to assist them. The advocates. Gateway is a really valuable, linked and don't forget us well. The defendant may not necessarily have to be in court when he gives evidence a live Lincoln be obtained under Sections 33 33 A of the Youth Justice and Criminal Evidence Act 1999. That's a form of special measures for which the defendant will need to make an application on will generally need to support it with medical evidence. Well, what you want to do next is to look at the problem question that comes with this pack. There's no pass or fail is just questions designed to get you thinking whether you prosecute or defend on a combination of this prep webinar and that problem question will give you an hour. CPD