Tuesday, 28 July 2020

Unfitness to Plead ~ Reform is required


Under present-day law, if a question is raised in the Crown Court as to whether a defendant (D) is unfit to plead then the question will be decided by the judge taking into account medical evidence. If the decision is that D is unfit to plead then a jury can be asked to determine whether D ‘did the act or made the omission charged against him as the offence” – Criminal Procedure (Insanity) Act 1964 (as amended).

In R v Marcantonio [2016] EWCA Crim 14 the Court of Appeal (Criminal Division) reiterated the law regarding unfitness to plead - see paragraphs 1 to 9. The court stated -

Whether an accused is fit to plead is determined
by the application of tests laid down at common law. The direction of Baron Alderson to the jury in Pritchard 173 ER 13; (1836) 7 C and P 303, 304-5 remains the foundation of the current law.

"There are three points to be enquired into: First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings on the trial so as to make a proper defence - to know that he might challenge [any jurors] to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. Upon this issue, therefore, if you think there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind. It is not enough that he may have a general capacity of communicating on ordinary matters."

See also the Court of Appeal (Criminal Division) judgment in R v Wells, Masud, Hone and Kail [2015] EWCA Crim  - discussed in this previous post 18 April 2015.

The Law Commission's Annual Report for 2019-20 is an overview of the Commission's work and notes the current situation with the Commission's various reports. Certain reports are in the process of implementation (e.g. the Sentencing Code - a Bill is now before Parliament). Other reports are awaiting implementation, some reports are awaiting government decision (Offences against the Person, Unfitness to Plead) and some reports will not be implemented.

The Commission's report on Unfitness to Plead is one awaiting government decision. It is to be hoped that Parliamentary time is found to take this forward because, to quote the Commission, 

"A new test is needed to establish who is unfit to plead. The existing rules for deciding whether a defendant is unfit to participate in a criminal trial – and what the courts should do if they are not – are out of date, misunderstood and inconsistently applied.

Our new report sets out recommendations to modernise the test for unfitness to plead, bringing it into line with today’s psychiatric and psychological thinking. The new test would ask whether the defendant is able to participate effectively in their trial."

By way of some of the history, two cases from the 1950s show how the criminal law used to be and they assist understanding of the modern law.

R v Straffen 1952:

In 2008 John Thomas Straffen (aged 77) went, unmourned, to his grave. His inquest recorded natural causes. By the time of his death, Straffen had become the UK's longest serving prisoner having served 55 years.

In October 1951, at Taunton Assizes (Oliver J and a jury), Straffen was found by the jury to be unfit to plead to the murders of Brenda Goddard (aged 6) and Cicely Batstone (aged 9). The only witness was Dr Peter Parkes who testified to Straffen's medical history and offered his opinion that Straffen was unfit to stand trial. The jury then formally decided that Straffen was unfit to plead and he was sent to Broadmoor in Berkshire.

In 1951 a medical examination indicated that Straffen had probably suffered brain damage as a result of encephalitis which he may have contracted whilst living in India with his parents. At age 21 he was assessed as having a mental age of 10.

Due to lax security, Straffen escaped from Broadmoor and, on the day of his escape, five year old Linda Bowyer was killed. As with the first two victims, there was no struggle, no sexual interference, no attempt to conceal the body. Straffen was tried at Winchester Assizes (Cassels J and a jury). The jury heard the testimony of six doctors: three for the prosecution and three for the defence. According to Fenton Bresler's book "Reprieve" all six agreed that Straffen was sane but there was disagreement whether he came within the M'Naghten Rules (i.e.the legal test for insanity).

Whilst the word "sane" appears in the Pritchard test (quoted above), the use of the word "sane" in this context appears to confuse the legal test for unfitness to plead and the legal test for insanity as a defence. The question of unfitness to plead applies at the time of the trial whereas any question of insanity (under the M'Naghten rules) applies at the time of the alleged offence. It seems preferable to keep the word "sane" out of the question of unfitness to plead.

The jury at Winchester found Straffen fit to plead and the trial proceeded. The judge allowed the jury to hear of the earlier killings. Straffen was convicted and sentenced to death. An appeal to the Court of Criminal Appeal was dismissed and the Attorney-General refused his fiat (permission) for the case to proceed to the House of Lords. The Home Secretary of the day - David Maxwell Fyfe (later the Earl of Kilmuir) - decided to reprieve Straffen. He was subsequently held in prison for the rest of his life. During his career, Maxwell Fyfe held the offices of Solicitor General, Attorney General, Home Secretary (October 1951 to October 1954), and Lord Chancellor (October 1954 to July 1962).

Another fact of interest is that whilst Straffen accepted that he had killed the first two victims, he always maintained that he was not responsible for the death of Linda Bowyer. From time-to-time his conviction for this murder has been questioned but an attempt to have the case reviewed was rejected in 2001.

The admission of evidence - or "similar fact" evidence - is interesting. Such evidence was not generally admissible in a criminal trial but could be admitted provided that it was relevant to an issue before the jury. It could be so relevant if it showed whether D’s acts were designed or accidental or to rebut a defence which would otherwise be open to D – Makin v Attorney-General for New South Wales [1894].

“Similar fact” evidence was also adduced in 1915 at the Old Bailey trial before Scrutton J and a jury of George Joseph Smith (“the brides in the bath”) murderer. It led to his conviction and execution. The trial of Smith was also notable for the evidence given by pathologist Sir Bernard Spilsbury and the experiments he (and the Police) carried out to show how Smith might have drowned his victims.

Today, evidence of a defendant's "bad character" is admissible subject to the Criminal Justice Act 2003 Part 11 Chapter 1.

Fenton Bresler - Reprieve - Harrap, 1965 - continues to be an interesting study of the problematic process by which various Home Secretaries decided whether to reprieve those individuals sentenced to death for murder.

Iain Adamson - A Man of Quality - A biography of Mr Justice Cassels - Muller, 1964

See also The Student's Verdict 25 February 2020

R v Podola 1959:

Guenther Fritz Podola was a former member of the Hitler Youth who came to England from Dusseldorf in May 1959 and took up a criminal lifestyle. He bought an automatic pistol and ammunition. An attempt at blackmail led to a confrontation with Police Officers who arrested him at South Kensington Underground Station but Podola broke free from the officers. There was a chase which ended in a block of flats at Onslow Square. Cornered by the Police, Podola shot and killed Detective Sergeant Raymond Purdy. Another officer witnessed the shooting from no more than 30 feet away.

In the mindset of the 1950s criminal law, such a shooting almost inevitably led to death on the gallows. Podola was to be no exception but his trial and an appeal left their mark on legal history.

The trial was at the Old Bailey in September 1959 before Edmund Davies J and a jury. Podola claimed that he could not remember what had happened and was therefore unfit to stand trial. The jury had to decide whether this amnesia was genuine. Having heard extensive medical evidence called by both sides, the jury decided that he was fit to stand trial. He was convicted and sentence of death was passed.

The Home Secretary (R A Butler) referred the case to the Court of Criminal Appeal which sat as a five judge constitution (Lord Parker CJ, Hilbery, Donovan, Ashworth, Paull JJ) - R v Podola [1960] 1 QB 325, [1959] 3 All ER 418.  The court placed emphasis on the full sentence set out by Alderson B in the Pritchard case - did the defendant have sufficient intellect to comprehend the course of the proceedings on the trial so as to make a proper defence.

The court held that this did not cover a case where the defendant could plead to the indictment and had the physical and mental capacity to know that he has the right of challenge and to understand the case as it proceeds.

The appeal was dismissed and the Attorney General refused his fiat for an appeal to the House of Lords. The Home Secretary - David Maxwell Fyfe - refused a reprieve. Podola was hanged at Wandsworth Prison at 9.45 a.m. on 5 November 1959. His execution took place five years before the last execution of any criminal and six years before the suspension and later abolition of the death penalty for murder.

: The Law Commission's Proposal :

Law Commission - Unfitness to Plead

Law Commission - Report on Unfitness to Plead

Recommendations include:
  • a modernised test for unfitness to plead, bringing it into line with today’s psychiatric and psychological thinking. The new test would look at the defendant’s decision-making capacity and ask whether the defendant is able to participate effectively in their trial.
  • that the unfitness to plead procedure be extended to the magistrates’ and youth courts.
  • a statutory entitlement for defendants to have assistance from an intermediary where they need that help in order to have a fair trial.
  • Training for judges and lawyers to help them identify which defendants need support and what kind of support would be most effective.
Under the existing rules, where a defendant is not fit to plead, there must be a hearing of the facts, even if the court already knows that the disposals available to it would not be appropriate for the defendant.
The Commission is making three main recommendations in this area.
  • The judge should be able to decide not to have a hearing, if more suitable provision can be made for the defendant outside the criminal justice system.
  • An alternative finding hearing should replace the current trial of the facts. The new hearing would more closely mirror a full trial, giving defendants better opportunity to challenge the prosecution. And allowing victims to give a full account of their experience.
  • Where the allegations are proved, the courts should be able to impose a more effective order for supervision. This could include constructive support for the vulnerable individual and more restrictive measures to ensure public protection.
The Commission's report includes a draft Bill extending to 70 clauses divided into 4 parts. There are also 2 Schedules.

Download the report
Download the draft bill
Download the report summary

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: Key steps on the road to reform :

R v Pritchard 1834:

Pritchard 1834 set out the test for unfitness to plead - see previous post 28 October 2010Alderson B told the jury that the defendant could be regarded as sane if he had sufficient intellect to comprehend the course of the proceedings on the trial so as to make a proper defence; to know that he could challenge any juror to whom he objected and to comprehend details of the evidence.

M'Naghten's case 1843:

In M'Naghten 1843 the judges laid down the legal test for insanity as a defence in English criminal law. A plea of insanity relates to the time of the alleged offence. In this respect it differs from an argument about Unfitness to Plead which applies to the trial process. Previous posts at - 27 July 2011 and 16 October 2017.

Trial of Lunatics Act 1883:

Given the outdated word "Lunatics" in the title to this Act it may surprise some readers to find that the Act is still in force and continues to have this title. As first enacted it allowed the jury to return a special verdict that the defendant was guilty, but insane at the time, and should be kept in custody as a criminal lunatic. The Act was amended by the Criminal Procedure (Insanity) Act 1964 so that the "special verdict" is now "not guilty by reason of insanity." (See section 1 of the 1964 Act as first enacted).

Here is the updated version of the 1883 Act.

Homicide Act 1957:

This Act divided murders into capital and non-capital - that is, those which attracted the death penalty (six categories) and those which did not. The Act - section 1 - abolished the constructive malice rule and also introduced into English law a defence of diminished responsibility allowing a conviction for manslaughter rather than murder.  The combined effect of these reforms was to reduce the number of occasions when insanity was pleaded.

Further discussion of the 1957 Act is in the post of 23 June 2020 - Ruth Ellis

Criminal Procedure (Insanity) Act 1964 - original version:

The 1964 Act, in its original form, introduced the special verdict of not guilty by reason of insanity.

Section 4 of the Act dealt with Unfitness to Plead but kept the decision to the jury.

Murder (Abolition of the Death Penalty) Act 1965:

Capital punishment for murder was suspended and was later abolished. The defence of diminished responsibility remained and continues to the present day albeit in an amended form.

The penalty for murder became a mandatory sentence (fixed by law) of life imprisonment.

Today, the trial judge determines the minimum term to be served before a person convicted of murder will be eligible to be considered by the Parole Board for release on licence - Criminal Justice Act 2003 Schedule 21.

Criminal Procedure (Insanity) Act 1964 - amended version:

The special verdict of not guilty by reason of insanity remains.

An amended section 4 and a new section 4A came with the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. The Domestic Violence, Crime and Victims Act 2004 made further changes.

The amended section 4 provides that questions about Unfitness to Plead are now for the trial judge and not the jury.  The judge shall not make a determination except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

Section 4A - this allows the jury to determine whether a defendant who is unfit for trial, "did the act or made the omission charged against him as the offence."

Criminal Appeals Act 1968:

Appeals in criminal cases are now governed by the Criminal Appeals Act 1968. The old requirement for the Attorney-General's fiat to appeal is no longer part of the law.

28 July 2020



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