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Are the courts adopting a new approach to mentally disordered defendants?

The court’s decision in a voyeurism case to regard the mental element as a fact for the jury to determine could herald a new approach in respect of other diminished responsibility cases, says Jeannie Mackie

3 May 2012

Mentally disordered defendants, with or without an accompanying mental disability, have rather a rough ride in the criminal justice system. The Criminal Procedure (Insanity) Act 1964 as amended is intended to make that journey more humane, and is used where a defendant is so unwell or so disabled that they cannot meaningfully take part in a criminal trial.

Where a defendant has been declared, by a judge, on medical evidence, to be unfit to plead, the proceedings then, technically, stop being a criminal trial and become a fact-finding exercise. Under section 4(a) of the Act the jury are asked to make a finding that he “did the act or made the omission charged against him as the offence”. If the facts of the offence are proved, then the disposal is a hospital order, a supervision order or an absolute discharge – it is not a criminal conviction, and the disposal is not a ‘sentence’ in the normal meaning of the word. B...

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