Abstract
This Article considers the position of defendants charged with murder who are found to be unfit to plead or insane at the time of the offence. If the court is satisfied that the defendant did the act charged as murder then the judge has no option but to impose a hospital order with restrictions. This Article examines the statutory requirements for medical evidence prior to a finding of unfitness or insanity and asks whether this satisfies the requirements of Article 5 of the European Convention on Human Rights. It concludes that there is no obvious justification for requiring defendants to be sent to hospital in the absence of a conviction where the medical evidence does not indicate that such a disposal is necessary. It follows that the current practice is likely to violate the Convention.
Highlights
Disposal of cases in unfitness and insanity cases The passing of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 introduced a significantly more enlightened framework for dealing with defendants who were unfit to plead or insane
This Article examines the statutory requirements for medical evidence prior to a finding of unfitness or insanity and asks whether this satisfies the requirements of Article 5 of the European Convention on Human Rights
It concludes that there is no obvious justification for requiring defendants to be sent to hospital in the absence of a conviction where the medical evidence does not indicate that such a disposal is necessary
Summary
Disposal of cases in unfitness and insanity cases The passing of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (the 1991 Act) introduced a significantly more enlightened framework for dealing with defendants who were unfit to plead or insane. It implemented a trial of the facts procedure to ensure that unfit accused could be acquitted outright if it could not be proved that they had done the act charged as the offence. 3 1991 Act section 3 – this introduced the range of disposals into the 1964 Act section 5(2)(b)
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