Insanity and unfitness to plead
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A person may be deemed unfit to plead by reason of insantity before or during trial. Before the trial, the Secretary of State may have the accused remanded to a hospital if it is in the public interest. As it is desirable to have cases heard, rather than left undecided, such a person will normally be expected to stand trial when he is well enough to do so.
The question of whether the accused it fit to stand trial should not be determined so early that a defendant who has a strong case is denied a trial. Thus it is allowable for the court to defer consideration until the close of the case for the prosecution. This provides the accused and his lawyers the opportunity to raise a plea of 'no case to answer'.
If either side, or the judge, decide that it is necessary to determine whether the accused is fit to stand trial, the matter must be decided by a jury. Normally a different jury will hear the main case, if proceedings are continued. A decision of unfitness to plead must be supported by two doctors, one of whom is certified by the Secretary of State as having particular expertise in this field. If a jury decides that the accused is unfit to stand trial at a late stage, and the court has decided that the prosecution has made out a case to answer, the jury can also make a decision whether the evidence against the accused establishes that he committed the Actus Reus of the offence or not. If there is not sufficient evidence that he did, the defendant can be discharged. This manouevre prevents an innocent person be detained on the grounds of insanity if the likelihood is that he did not commit the offence. Otherwise the accused is either committed to hospital -- for a specified or unspecified time -- or discharged subject to a treatment or supervision order.
The test for fitness to plead is whether the defendant is able to understand the charges, and offer a defence, either in person or through his legal representative. Normally, a failure of memory of the events surrounding the offence will not render the accused unfit to be tried.
As with a defence of insantity, if the defendant submits that he is unfit to plead, he has the burden of proof, on balance of probablilities. This means that a defendant can be convicted even if the dury is not satsfied beyond reasonable doubt that he is fit to be tried. It can be argued that the defendant's sanity is one of the elements required to be established by the prosecution, along with the existence of the Mens Rea and the committal of the Actus Reus. On such grounds it is hard to see why the burden of proof falls on the defendant; with Automatism the burden of proof remains with the prosecution. This situation appears to be an anomaly.