Abstract

Whenever a person is found to be unfit to plead at the time of his or her trial, a jury must determine whether s/he “did the act or made the omission charged as the offence”. Similarly, when a court decides that a person was insane at the time of an offence being committed, part of the jury’s task is to determine whether s/he “did the act or made the omission charged”. In either case, if the jury is not so satisfied then it must return a verdict of acquittal. An issue that has caused the courts some considerable concern recently is the extent to which, if any, the mental element of the crime is relevant to the question of whether the accused “did the act”. This article reviews the existing authority and concludes that, although the courts have imposed a uniform test and may thus be said to have achieved consistency between the two situations, this may result in considerable injustice in some cases.

Highlights

  • Whenever a person is found to be unfit to plead at the time of his or her trial, a jury must determine whether s/he “did the act or made the omission charged as the offence”.1 when a court decides that a person was insane at the time of an offence being committed, part of the jury’s task is to determine whether s/he “did the act or made the omission charged”.2 In either case, if the jury is not so satisfied it must return a verdict of acquittal.An issue that has caused the courts some considerable concern recently is the extent to which, if any, the mental element of the crime is relevant to the question of whether the accused “did the act”

  • There is a real danger that the Tribunal would become a ‘rubber-stamp’, in the absence of an independent second opinion or a medical member on the sitting in the Tribunal. In those circumstances it would be difficult to say that the patient had been ‘reliably shown, upon objective medical expertise’ to be suffering from a qualifying disorder, in accordance with Article 5(1)

  • (b) The ‘court’ must be of a ‘judicial character’ in the sense of being competent to take a legally binding decision leading to the patient’s release. It was the absence of the Tribunal’s power to order the patient’s discharge without the consent of the Secretary of State that constituted a violation of Article 5(4) in X v United Kingdom[19]

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Summary

Notes for contributors

Contributions should be typed with double spacing throughout on one side of uniform size paper (preferably A4 size) with at least a one inch margin on all sides. Submissions on disc will be accepted where they are of Word 6 format In such cases a hard copy should be submitted. All papers submitted to the Journal of Mental Health Law are refereed and copies will not be returned except by request and unless a postage paid envelope is provided by the author. The publishers are unable to check the accuracy of references and the onus of the accuracy falls on the author. It is the responsibility of the author to obtain any permission necessary to reproduce or quote from published work and suitable acknowledgment should always be made.

14 Similar criteria apply governing a patient’s admission into guardianship
(3) Discharge procedures
22 Decision of 18 July 1986
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