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Manifest MadnessMental Incapacity in the Criminal Law$

Arlie Loughnan

Print publication date: 2012

Print ISBN-13: 9780199698592

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199698592.001.0001

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Dynamics of Inclusion and Exclusion: Unfitness to Plead and Infancy

Dynamics of Inclusion and Exclusion: Unfitness to Plead and Infancy

Chapter:
(p.66) 4 Dynamics of Inclusion and Exclusion: Unfitness to Plead and Infancy
Source:
Manifest Madness
Author(s):

Arlie Loughnan

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199698592.003.0004

Abstract and Keywords

This chapter juxtaposes two mental incapacity doctrines — unfitness to plead and infancy — that are facially quite dissimilar, but which define, by a process of exclusion, those who can be subjected to criminal law process and sanctions. Although infancy is not typically incorporated into studies of mental incapacity in criminal law, its historical, conceptual, and procedural features make it a proper inclusion. It is shown that infancy and unfitness to plead have both developed along a trajectory of formalization. The chapter suggests that formalization was shaped by a deep dynamic of inclusion — whereby the scope of these mental incapacity doctrines was drawn broadly — but, more recently, has also come to be structured by a dynamic of exclusion, whereby the scope of the doctrines is more circumscribed. The change in the dynamics structuring the process of formalization itself reflects changing concerns with matters such as dangerousness. As a result of these changing concerns, in the current era, formalization of these mental incapacity doctrines is now structured by these two dynamics of inclusion and exclusion.

Keywords:   mental incapacity doctrines, unfitness to plead, infancy, criminal law, inclusion, exclusion

(p.67) In this chapter, I examine unfitness to plead and infancy, both of which are non‐exculpatory mental incapacity doctrines on my account of the mental incapacity terrain.1 Unfitness to plead is a procedural provision exempting an individual from an ordinary trial, at least temporarily, on the basis that, at the time of the trial, he or she cannot understand or participate in it. Infancy refers to the minimum age at which criminal responsibility can be imposed (and is also known as non‐age).2 In discussing infancy, I also discuss the rules comprising doli incapax for children aged 10–14 years, which until recently, carved out a buffer zone for those, who, although above the age of criminal responsibility, did not have the full capacities of an adult. Taken together, unfitness to plead and infancy concern a defendant's understanding of, and engagement in, criminal proceedings, and the reach of the criminal law.

Unfitness to plead and infancy are not commonly examined alongside each other in legal scholarship. Indeed, because the sort of incapacity invoked by the law of infancy has come to be regarded as sui generis, it might at first seem to be a strange inclusion in a book on mental incapacity. While unfitness to plead is often swept up alongside exculpatory mental incapacity doctrines in academic studies (where it is usually, if implicitly, analysed as a procedural cognate of substantive criminal law doctrines such as insanity3), infancy is rarely so included, and, indeed, is often examined in isolation from other procedural provisions.4 Feeding into its treatment (p.68) in isolation, infancy is sometimes thought to have greater political and social than legal overtones.5 But unfitness to plead and infancy interrelate with each other in intricate ways, and comparing them here usefully demonstrates the multifarious connections between the two, which stretch beyond their shared identity as procedural doctrines, safeguarding criminal process. The connections between unfitness to plead and infancy—historical, conceptual, and procedural—that I trace in this chapter not only provide some justification for their consideration side by side, but also reveal insights about the terrain of mental incapacity in criminal law.

The purpose of this chapter is two‐fold. First, I show that infancy and unfitness to plead have both developed along a trajectory of formalization. By the term formalization, I refer to the process by which flexible and overtly moral‐evaluative aspects of the law have gradually given way to rigid processes and technical and precise rules that mark out criminal law in the current era.6 Both unfitness to plead and infancy are now discrete, procedural issues, but each trace their origins to the same broad set of morally evaluative principles and practices, which rested on largely undifferentiated ideas of incapacity. Second, I discuss the deep dynamics that have structured this process of formalization. While the process of formalization continues in the current era, the dynamics shaping it have altered over time. I suggest that formalization was shaped by a deep dynamic of inclusion—whereby the scope of these mental incapacity doctrines was drawn broadly—but, recently, has also come to be structured by a dynamic of exclusion, whereby the scope of the doctrines is more circumscribed. As I discuss in this chapter, the change in the dynamics structuring the process of formalization itself reflects changing concerns with matters such as dangerousness and fairness to the accused. As a result of these changes, in the current era, formalization of these mental incapacity doctrines is now structured by both dynamics of inclusion and exclusion.

Informal Legal Practices and the Emergence of the Doctrines

Although the absence of sources renders the early history of unfitness to plead and infancy opaque, it seems likely that what came to be called insanity on arraignment (and later unfitness to plead) and what would now be called infancy developed out of an informal practice of excusing certain individuals from trial. It is generally accepted that an informal practice of excusing young children via the means of a royal pardon, predated any formal prescription on a minimum age for criminal (p.69) responsibility.7 Adults who were excused from trial included those who could not communicate, those who had intellectual disabilities, and those who were regarded as ‘mad’.8 These latter categories were loose, reflecting the limited way in which mental incapacity was disaggregated in the early modern era.9 The scope of this informal practice—encompassing adults with both communication and comprehension impairments as well as children—prepared the ground for the subsequent development of the laws of unfitness and infancy.

The Role of Mercy in Criminal Process and the Significance of a Plea

In relation to the development of the law on infancy, the practice of according special treatment to young people charged with offences can be detected from the early modern period. Young children represented a statistically larger number of defendants than those who were unfit.10 When young children came to the attention of the courts, the way they were dealt with was highly variable, affected by matters such as the circumstances of the victim, the type of offence, and the young person's social position. In the context of porous boundaries between what would now be factors affecting liability and factors in mitigation, age could be taken into account either in acquitting the defendant (‘he being but a Youth, and no other Testimony than his own Confession, he was acquitted’ of theft of a horse11), reducing the charge he or she faced (charged with theft but, ‘taking pity of [sic] his youth’, he was found guilty of the lesser charge of petty larceny12), or as a basis for a recommendation of mercy (convicted of high treason, but, ‘in compassion to his Youth and Simplicity, he may have Mercie extended to him’13). In general, in the absence of specific laws or a regularized procedure for young people, the idea that a child could be excused from punishment on grounds of mercy seems to have had wide currency.

The special status of young defendants was recognized in legal commentary in the early modern era, in treatises which harked back to older legal traditions. This special status took the form of an irrebuttable presumption of doli incapax for very (p.70) young children and a rebuttable presumption of doli incapax for older children.14 The idea that very young children should not be subject to criminal sanction seems to have been shared by a number of commentators, but there was variation in thinking about the age from which criminal sanction might be imposed.15 Specification of a minimum age of criminal responsibility‐cum‐liability (then the two as yet unseparated) in legal treatises took on greater significance in the seventeenth century, when the system of registering births made it possible to be precise about an individual's age.16 In the writings of Matthew Hale, whose History of the Pleas of the Crown was first published posthumously in 1736, the author refers to the presumptio juris that after 14 years children are doli capaces.17 For a child aged between 12 and 14, ‘if it appear to the court that he was doli capax, and could discern between good and evil at the time of the offence’, he may be convicted.18 As these words suggest, for children aged between 12 and 14, the assessment was flexible, taking into account the demeanour and appearance of the child. It was on the back of such dissertations on the law—as much aspirational as actual—that a systematic approach to young defendants would eventually emerge.

In relation to the development of unfitness to plead, the court processes of the medieval era that required an individual to enter a plea in response to a charge gave impetus to the development of the law on unfitness (and set up what would be an enduring link in the law of unfitness between inability to plead and inability to participate in a trial). At this juncture, court formalities meant that a defendant's inability or refusal to plead prevented his or her trial from proceeding. As John Langbein argues, this resulted from the perception that trial by jury was a ‘consensual proceeding that the defendant had a right to decline’.19 The significance of the (p.71) requirement that individuals enter a plea in response to a charge meant that those who would not plead were grouped together with those who could not plead due to either communication or comprehension impairments.20 In order to distinguish those defendants who were truly unfit from those who were merely obstructing the progress of the trial, medieval court process worked to separate those who were wilfully obstructionist. A jury was empanelled to decide if the defendant's muteness was the product of a genuine inability to communicate (in which case, he or she would be found ‘mute by the visitation of God’) or wilful choice (in which case, he or she would be found ‘mute by malice’).21 This particular practice continued after the jury trial lost its consensual character.22

The practical significance of a defendant's plea to a charge increased over the period to the end of the seventeenth century, as a result of the type of criminal process then prevailing. The criminal trial in this era—typically referred to as ‘trial by altercation’—centred on the idea that direct confrontation of the accused with his or her charge was the best means of discovering the truth of the allegation.23 As Antony Duff and colleagues write, the accused was confronted by the accuser and the evidence, a practice which was the basis for the orality of the proceedings.24 In his account of this trial process, which he calls the ‘lawyer‐free’ or ‘accused speaks’ criminal trial, Langbein chronicles the factors, such as the absence of defence counsel and the rapidity of jury trials, which compelled the defendant to speak, ‘either to hang himself or to clear himself’.25 The trial was an exculpatory process—defendants were in effect presumed guilty and required to prove their innocence. Under these conditions, defendants who could not (or would not) plead presented a problem for criminal courts, obstructing the path to a verdict of either guilty or not guilty. This functional dependency on the accused seems to be behind the court (p.72) practice of inquiring into the defendant's mental ability to determine whether he or she could indeed be tried.26 Because the defendant was an informational resource for the court in the ‘accused speaks’ trial process, guilty pleas were discouraged: even if conviction was certain, such a plea meant that the court could not consider mitigating factors.27 As I discuss in the next chapter, together with changes in sentencing practices, the development of an adversarial criminal process from the start of the 1700s profoundly altered the dynamics of the criminal trial—but the significance of an accused's plea remained.

Conceptual Interdependency and Connection to the Substantive Law

Up to the end of the eighteenth century, unfitness to plead and infancy were part of a fluid mental incapacity terrain, marked by both conceptual interdependency and connection between what would later be discrete procedural doctrines and the substantive criminal law. Taking unfitness to plead first, as it developed out of procedural formalities in the early modern era, unfitness to plead exhibited a connection to the substantive law via the informal law of insanity. Reflecting the then conjoined nature of criminal liability and capacity at trial, a clear distinction between factors affecting an individual at the time of the trial and factors affecting liability was unknown in this period. As conveyed by the use of the same term for both conditions, there was no conceptual distinction between ‘insanity’ as it related to conviction (an insanity plea) and ‘insanity’ as it related to the time of the trial (insanity on arraignment). The relevant difference between the two lay not on the conceptual level but in the time at which the defendant's insanity became apparent. Less obvious insanity might appear only at trial.28 Thus, the informal insanity plea was connected with the informal process of excusing an individual from trial: insanity at the time of the offence and insanity on arraignment represented two different points in time at which the individual might be judged to be insane, where insanity was a broad, minimally disaggregated concept.

The trial of Susannah Milesent for the theft of a petticoat in 1794 provides an illustration of the conceptual interdependency of insanity at the time of the offence and insanity on arraignment. The trial had been put off for two sessions ‘on account of [the defendant] appearing insane’. When Milesent was tried, a prison nurse testified that, while in gaol, the defendant had broken windows, ‘made use of very bad expressions’, and taken off her clothes. Another witness testified:

(p.73) I am servant to Mr Priestly.

Q. Have you known this woman ever since she has been in gaol?

Q. What has been her conduct? ‐…in a kind of mad way.

Q. What have you known her to do?—I saw her break windows of the ward she was in…

Q. Upon your oath, what is your opinion? Do you think she is a mad woman, or a woman in her senses?—I did not think her to be a woman in her senses.

Q. Do you take her to be a mad woman? I do.29

The jury found Susannah Milesent ‘deranged and not in a sound mind’. This verdict may seem like an informal insanity verdict but, significantly, the defendant's insanity had only appeared at trial—there was no suggestion that, at the time of stealing the petticoat (to be ‘wedded’, ‘because mine is a nasty old one’), the defendant had been deranged.30

Beyond the conceptual interdependency with insanity, the law then known as insanity on arraignment also serves to reveal something about the significance of the conduct of the (potentially unfit) accused in criminal process in this period. Here, an accused's conduct—encompassing the acts comprising the offence, but also the conduct surrounding the offence and his or her demeanour in court—had a thick significance, extending beyond that now commonly accorded to the actus reus of an offence. As I discuss in relation to evidence and proof of insanity, and also as part of my ‘manifest madness’ analysis, evaluation of an individual's conduct was made not so much via deduction of his or her mental processes from his or her behaviour, but on the basis that the behaviour constituted the ‘mad’ condition.31 Thus, in the testimony advanced in the trial of Susannah Milesent, although there is a reference to the defendant's ‘senses’, the emphasis is clearly on her conduct (and particularly on her conduct in the time since the offence). This record suggests that, in this era, when a ‘mad’ individual was charged with a criminal offence, his or her conduct was more than a threshold issue in the legal evaluation process.

Over and above the significance of the (potentially unfit) accused's conduct for legal evaluation, conduct was significant in another respect. In this period, legal historians have thought of the developing law on unfitness as characterized by a strict approach.32 In my thinking, the embryonic principles that applied to excusing or exempting particular individuals from trial have a different significance. This may be illustrated with reference to Matthew Hale's The History of the Pleas of the Crown, referred to above. According to Hale, ‘a man’ who becomes ‘absolutely mad’ before arraignment ‘ought not by law to be arraigned during such his phrenzy, (p.74) but be remitted to prison until that incapacity be removed’.33 Hale's directives have been interpreted to suggest that his use of the term ‘absolute’ indicates the need for total or profound incapacity if an individual was to be given a reprieve from trial. My own assessment of the historical development of the law on unfitness to plead suggests an alternative view on these statements. In a way that parallels my suggestion about the ‘wild beast’ insanity test for insanity at the time of the offence (which I make in Chapter 5), Hale's reference to the ‘absolute’ character of the ‘madness’ that exempted a defendant from trial was more of a requirement of form than of degree or extent. According to this analysis, the requirement that the accused be ‘absolutely mad’ may have meant that his or her ‘madness’ had to be obvious or manifest, rather than extreme in the sense of total or profound, in order to excuse him or her from trial. This reinterpretation is subtle but important because it suggests that the emphasis in excusing individual defendants from trial was on behaviour or conduct rather than on the particulars of his or her disorder, an aspect of the development of the law that, as a result of beliefs about its apparent strictness, has not been given due attention.34

The conceptual interdependence with insanity, and the connection between the procedural and the substantive law, extended to infancy. In the context of what were largely undifferentiated ideas about incapacity, legal tests drew on then prevalent Judeo‐Christian teachings and beliefs, according to which both children and the insane were thought to have impaired ability to understand ‘good and evil’.35 This terminology appeared in cases involving young defendants and those raising an informal insanity plea. A good example is provided by the trial record of the proceedings against three children for theft in 1787, where the Court opined:

…[i]deots, lunaticks, and persons non compos mentis, are not answerable for crimes that they commit; in the same way, a child that is of so tender years as to be alike incapable of distinguishing good from evil, and of knowing the moral consequences of its actions, is not capable, in point of law, of committing a crime.36

The conceptual connections between infancy and insanity (and unfitness in its nascent state), reflected genuine and deep interdependence among conceptions of incapacity. While these connections have now come to be treated typically as a mere analogy, when the perspective is expanded to encompass historical (p.75) and procedural dimensions of the law, it is clear that these connections were significant.37

Formalization of Unfitness to Plead and Infancy I: Dangerousness and Disposal

From the start of the nineteenth century, it is possible to track the formalization of law and practice concerning unfitness to plead and infancy. Starting from this point, I divide the process of formalization of these provisions into three stages. Within the first stage of formalization, parts of the mental incapacity terrain took on sharper definition and the sort of incapacity connoted by unfitness on the one hand and infancy on the other came to be clearly distinguished. In this first stage, broadly corresponding with the 1800s, the process of formalization was driven by concerns with dangerousness and disposal, and these concerns generated a deep dynamic of inclusion, according to which the scope of the doctrines was drawn broadly. The concern with dangerousness and disposal would be replaced by more humanitarian concerns such as fairness to the defendant in the second stage of formalization, but, here again, the result was a dynamic of inclusion, whereby both unfitness to plead and infancy were defined broadly.

‘Now sane or not’:38 Insanity on Arraignment

In its first stage, the formalization of the law on unfitness occurred in two steps. The Criminal Lunatics Act 1800 represented the first step in the process.39 This Act was triggered by the trial of James Hadfield, tried for high treason after attempting to shoot King George III.40 Hadfield was acquitted ‘as being under the influence of insanity’ and detained under the civil law of vagrancy (rather than the criminal law).41 Section 2 of the Criminal Lunatics Act applied to those found to be insane at the time of the trial:

If any person indicted for any offence shall be insane, and shall upon arraignment be found to be by a jury lawfully empanelled for that purpose, so that such person cannot be tried on indictment—…—it shall be lawful for the Court…to direct such finding to be recorded, (p.76) and thereupon to order such person to be kept in strict custody until his Majesty's pleasure shall be known.42

The Criminal Lunatics Act 1800 did not define what constituted insanity on arraignment, just as it did not define insanity for the purposes of conviction, and it employed the same term (‘insanity’) to refer to insanity on arraignment and to insanity for the purposes of conviction. This suggests that each reference connoted the same broad and multifarious phenomena,43 and that the distinction between the two continued to lie at the point in time at which the individual's condition became apparent.44 Like Section 1 of the Act, which applied to individuals found to be insane at the time of the alleged offence, Section 2 was primarily concerned with disposal. Through this statutory provision, it became possible to detain those individuals found to be insane on arraignment indefinitely. Individuals could be detained in whatever manner the Crown saw fit, which, in practice, meant prison. In relation to both insanity on arraignment, and insanity for the purposes of conviction, the backdrop of the development of the law was the spectre of capital punishment, which, when humanitarian concerns became more prominent, contributed to the expansive approach taken to the scope of unfitness to plead.45

At this point, the meanings given to incapacity for the purposes of unfitness continued to revolve around insanity, which was a loose, broad, and moralized notion, defined by extra‐legal norms. The social meanings of incapacity, then as now, were complex, and I discuss these meanings in more detail in the context of the law on insanity in the next chapter. Here, I suggest that what would come to be called unfitness—a legal creation which encompassed physical and mental impairments—was an omnibus notion, encompassing a range of incapacities, and defined by a range of social, religious, cultural, and other norms bearing on incapacity. In the absence of elaborated legal concepts of incapacity, ordinary people's ideas about ‘madness and lunacy’ provided the animating framework for ascriptions of insanity on arraignment (and insanity for the purposes of conviction).46 In this era, (p.77) ‘madness’ was considered readily intelligible to people without expert knowledge, who, observing the behaviour of others, inside court and beyond it, could be confident about their ability to know ‘madness’ when they saw it. At this time, ordinary people were considered competent to testify to an individual's ‘mad’ condition and it was against common meanings of ‘madness’ that legal evaluation and adjudication practices occurred.47

In the second step comprising the first stage of the formalization of unfitness to plead, unfitness came to be given greater definition as a legal construct, and, in this process, to take on a more elaborated and more technical character. The 1836 decision of Pritchard contained a sustained judicial discussion of insanity on arraignment, and put flesh on the bones of the law on unfitness, providing what would become the criteria for a finding that an individual was unfit.48 Pritchard, who was ‘deaf and dumb’, was charged with bestiality, which was strictly, although not in practice, a capital offence.49 The jury found Pritchard ‘mute by the visitation of God’ but able to plead. By a sign, Pritchard entered a plea of not guilty. Baron Alderson ordered the jury to try the question of whether he was ‘now sane or not’:

There are three points to be inquired 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 of you to whom he may object—and to comprehend the details of the evidence.50

The three criteria for a finding of unfitness set out in Pritchard, encompassing issues of communication (‘whether he can plead to the indictment or not’) and comprehension (‘whether he is of sufficient intellect to comprehend the proceedings’), form the basis of the current law, which I discuss below.

The technical explication of insanity on arraignment in the decision of Pritchard, and the almost contemporaneous development of a formal insanity doctrine in the M'Naghten Rules, wrought a conceptual cleavage between these two parts of the criminal law. In this process, the law on unfitness became stricter, and insanity for purposes of ‘insanity on arraignment’ came to be ‘only tangentially related to insanity for purposes of liability’.51 The concern with dangerousness that underpinned the 1800 Act was to subsist in each area of law. While some procedural points of connection between unfitness to plead and the insanity doctrine remain, (p.78) unfitness to plead formalized in a markedly more technical way than insanity, according to which unfitness has become a discrete procedural provision.

Infancy: the Social Seeds of Change

Doctrines and practices relating to young defendants were also formalizing over the 1800s. This was a gradual process. While the idea of an absolute presumption against responsibility for children aged seven and below, and a rebuttable presumption for those under 14, had taken root in legal commentary, these rules were not necessarily reflective of the practical operation of the law. Indeed, Martin Wiener suggests that the special status of a child under 14 years was usually ignored.52 The Old Bailey Proceedings suggest that there was no precisely formulated test for the ideas about the criminal responsibility of children, with courts referring to ‘the difference between falsehood and truth’ and ‘right and wrong’, for instance.53 In terms of proving if a particular young person had ‘guilty knowledge’, although in Smith in 1845, Justice Erle directed the jury that such ‘knowledge’ cannot be presumed from the ‘mere commission’ of the act,54 it is not clear that this restriction on the means of proof would have been generally followed. Beyond this, age (‘tender years’, ‘youth’) continued to be a basis for mercy in some instances, and interacted with other factors such as mental state (‘a weak mind’), poverty (‘distressing circumstances’), intoxication, the influence of others (‘bad companionship’), and good character in mitigating sentences.55

The general picture of the treatment of child offenders during this century is bleak. Wiener suggests that during the first half of the century, juveniles were treated as being ‘even more liable to sanctions than earlier’.56 During this period, children were subject to imprisonment, transportation, and execution for criminal behaviour. This was a period of fear about juvenile delinquency, a fear which intersected with concerns about victimization and economic crises. As historians point out, children's crimes were those of poverty—stealing, vagrancy, or beg (p.79) ging.57 Reforms in the legal treatment of child offenders were instituted from mid‐century. The Juvenile Offenders Acts of 1847 and 1850 provided that whipping and flogging could be used as alternatives to prison, and made provision for the separate arraignment and disposition of boys and girls aged less than 14 years.58 The Reformatory Schools (Youthful Offenders Act) 1854 provided for segregation in prison by age, with those aged under 16 years sent to a reformatory after serving a sentence.59 In the last decades of the century, greater flexibility in sentencing was introduced, but a separate court system for juveniles was not created until 1908.

The broader legal context for these developments was the formalization of the criminal trial process more generally, which coincided with the development of an administrative structure for dealing with insane and unfit individuals.60 Developments in the first half of the 1800s occurred against the backdrop of the growing opposition to the breadth of capital punishment, which arose in the later eighteenth and early nineteenth centuries, and which led prosecutors, judges, and juries to attempt to restrict the scope of the death penalty and resulted in a reduction and reorganization of the number of capital statutes from 1827.61 Over the course of the nineteenth century, a number of reforms to criminal procedure significantly affected the structure of criminal trials.62 The primary aim of the various reforms to criminal trials was to expedite the criminal process, with concern about the rights of the accused merely a secondary consideration.63 In addition, this period saw a significant expansion of summary jurisdiction, and a series of Acts which, for the first time set out a detailed uniform procedure for magistrates to follow.64 As Wiener writes, these developments in criminal process significantly altered the structure of the criminal trial, moving it towards ‘a more restrained, rule‐governed, predictable, depersonalized process’.65

(p.80) Combined with the enhanced social profile of crime, these developments pushed juvenile delinquency into prominence as a focus for social and political concern, and prompted the development of an administrative structure for young offenders.

Reformatories, mentioned above, were part of this new administrative structure. As Wiener argues, the early Victorian era saw a ‘new optimism’ about reforming juveniles, onto which was overlaid a ‘new acknowledgement of juvenile weakness and need for special help’ by mid‐century.66 Based on a paternalistic approach to young offenders, whereby crime was depicted as a symptom of underlying problems, this era saw particular dispositions for young offenders (such as ‘Borstal training’) and separate prisons (such as Parkhurst, which opened in 1838), and, after 1850, new privately run reformatory schools.67 These institutions and approaches represented attempts to reform wayward children (albeit through discipline and regimen, in keeping with the prevailing ethos of the period), and reflected a more generalized and diffused social concern about the so‐called ‘perishing’ or ‘dangerous classes’. By the end of the Victorian era, the criminal justice system was moving to deal with the young as ‘a distinct category of lessened responsibility’.68 This presaged the changing social concerns that would come to drive the formalization of infancy (and unfitness to plead) in the subsequent era.

These changing social concerns rested on what Wiener labels ‘the emerging sentimentalization of childhood’ that took place over this period.69 Changing wages, living standards, patterns of education and the ‘new model childhoods’ that were part of the ‘ideal of domesticity’, combined to link childhood to ideas of innocence and vulnerability and fostered the idea that children were in need of welfare and protection.70 The higher social profile of childhood in the nineteenth century, and the emergence of ideas of childhood as a distinct stage of the development of the person, as well as the appearance of a specialist or expert knowledge on youth facilitated these developments. Yet, even as childhood was becoming the subject of specific meanings, connections to existing ideas of incapacity—around disability and femininity—persisted, in that young people, ‘lunatics’, and women were regarded as problematic in the context of Victorian insistence on ‘personal responsibility and self‐mastery’.71 While the incapacity associated with unfitness to plead continued to connote mental impairment and (p.81) disability, childhood gradually came to be accorded a sui generis notion of difference that did not reduce to incapacity.

Formalization of Unfitness to Plead and Infancy II: Fairness and Special Treatment

The next stage in the formalization of unfitness to plead and infancy corresponded with the period of the twentieth century up to the mid 1990s. Reviewing this period, it is possible to detect a change in the concerns underpinning the dynamic of inclusion that was shaping formalization. In this period, a deep dynamic of inclusion continued to drive the formalization of the law on unfitness to plead and infancy, but, now, more humanitarian concerns with fairness to defendants and a sense of the appropriateness of special treatment for some emerged to intersect with subsisting concerns about dangerousness. In this period, it is the combination of these concerns that accounts for the dynamic of inclusion, and thus the continuation of an expansive approach to unfitness to plead and infancy.

‘With reference to the Question whether the Prisoner can or cannot be Tried upon the Indictment’:72 Unfitness to Plead

The first unfitness case to go to the new Court of Criminal Appeal, Governor of Stafford Prison ex parte Emery, usefully illustrates both these emerging and subsisting concerns driving a dynamic of inclusion. In Emery, the Court upheld the ‘strict custody’ order imposed on Emery, a ‘deaf mute’, who had been charged with a felony. Emery was unable to write or communicate via sign language. On appeal, Emery's counsel argued that, because the jury had found Emery incapable of pleading ‘by reason of his inability to communicate with and be communicated with by others’, it would be ‘a straining of [the] language [of the verdict] to construe the finding as one of insanity’.73 The Court rejected this argument, stating:

It might work great injustice in many cases to put a prisoner against whom such a finding was recorded upon his trial as if he were perfectly sane, and if he was found guilty to punish him as an ordinary criminal; or it might be the cause of much mischief if he were found not guilty and allowed to go free.74

(p.82) This reasoning exposes the nuances of the dynamic of inclusion as it played out in relation to unfit defendants: in addition to a concern about dangerousness, concern about fairness to the defendant had emerged to inform the law. The currents of sympathy and concern about fairness were channelled through a sense of the beneficence of legal processes dealing with unfit defendants. The decision in Emery adopted an expansive approach to insanity for the purposes of insanity on arraignment and confirmed that it encompassed disabilities relating to communication as well as comprehension.

The formalization of unfitness was advanced by the Court of Appeal decision of Podola in 1960,75 and the Criminal Procedure (Insanity) Act 1964, which repealed the Criminal Lunatics Act 1800. Taken together, this decision and this Act significantly firmed up the law relating to unfitness. The Podola Court concluded that the burden of proving unfitness lay with the defence.76 In relation to the standard of proof for unfitness, it now became clear that, if the defence raises the issue, the standard of proof is on the balance of probabilities; if the issue is raised by the prosecution, the standard of proof is beyond reasonable doubt.77 The Criminal Procedure (Insanity) Act 1964 followed the Criminal Law Revision Committee (CLRC)'s report, Criminal Procedure (Insanity), which reviewed the law on unfitness to plead and made a number of recommendations for reform to the law.78 The recommendations of the CLRC's Report that were incorporated into the 1964 Act gave the judge discretion to postpone the trial of unfitness until the close of the prosecution argument, permitting the defence to submit a ‘no case to answer’ (p.83) motion which, if successful, meant that the defendant would be acquitted.79 The Act codified the common practice that either the prosecution or defence may raise the issue of the defendant's unfitness.80 The Act also provided that the court must make an order that the unfit individual be admitted to hospital to be discharged at the discretion of the Home Secretary (who also had discretion to remit the defendant for trial at a later date).81 This order meant that an unfit accused could be detained without the Crown proving whether he or she had committed the offence charged.82 Further, because the consequence of a finding of unfitness was indefinite hospitalization, an unfit person could be detained for a longer period of time than if he or she had pleaded or been found guilty and sentenced to a jail term.83

Although criticism of the 1964 Act followed soon after its passage, the law was not reformed until 1991. The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 incorporated some of the changes to the law recommended by the Butler Committee in its 1975 review of the 1964 Act and its operation.84 The 1991 Act represented an effort to increase the use of unfitness to plead. As the Butler Committee had recommended, the 1991 Act amended the 1964 Act to introduce a procedure for a ‘trial of the facts’ to follow a finding of unfitness. A ‘trial of the facts’—which the Butler Committee had suggested should extend to cover the actus reus and mens rea of the offence charged—was to determine whether the defendant had ‘done the act or made the omission charged as the offence’. The outcome of such a ‘trial’ was not to count as a conviction and could not be followed by punishment.85 Again, per the Butler Committee recommendations, the 1991 Act also introduced a requirement that expert evidence from two medical practitioners support a finding of unfitness.86 These legislative reforms did not represent all of the Butler Committee's recommendations, however. The 1991 Act omitted to enact the recommendation that a finding of unfitness be made by a judge alone (p.84) unless the defence requested a jury determination.87 Instead, the 1991 Act provided that a ‘trial of the facts’ was to be heard by a jury empanelled specifically for that purpose and that the jury must be ‘satisfied’ that the defendant ‘did the act or made the omission charged against him as the offence’.88 Although there is empirical data to indicate that a ‘trial of the facts’ does not always follow a finding of unfitness, where it does, the majority of unfit individuals are found to have done the act.89 I discuss the ‘trial of the facts’ procedure again below.

Like changes to the process, the introduction in the 1991 Act of a range of disposal options for those found unfit to plead (as well as for those found not guilty on the grounds of insanity) was designed to increase the use of unfitness to plead provisions.90 Reflecting both the perceived problems flowing from lack of flexibility in the 1964 Act and an increasing differentiation within the category of unfit individuals, the 1991 Act provided that a Crown court could issue a hospital order with or without restriction, a supervision order, and an absolute discharge.91 In relation to remission of unfit defendants, the Home Secretary retains the power to remit unfit defendants for trial in all instances except those in which the defendant was subject to a hospital order without restrictions.92 Initially, these disposal options did not apply where the defendant had been charged with an offence for which the sentence was ‘fixed by law’ (that is, murder, to which a mandatory (p.85) penalty of life applies), where the only option available to a court was a hospital order. This situation was remedied with the Domestic Violence, Crime and Victims Act 2004, which removed the underused option of a guardianship order and provided that, where the sentence for an offence is ‘fixed by law’, the courts have power to order a hospital order only if the necessary medical criteria are satisfied.93 Although findings of unfitness have increased in the years since the passage of the 1991 Act,94 they remain uncommon.95 The low numbers of finding of unfitness have led R M Mackay to conclude that ‘the law is markedly unsuccessful in fulfilling what should be a protective function for the mentally disordered’.96

This stage in the formalization of unfitness to plead brought with it an enhanced reliance on expert psychiatric and psychological knowledges of incapacity. The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 mandated the use of expert medical evidence in relation to unfitness to plead (and the insanity plea). The Atkin Committee on Insanity and Crime,97 the Royal Commission on Capital Punishment,98 and the Butler Committee,99 had all recommended that expert (p.86) evidence from two medical practitioners be required to support a finding of unfitness (and insanity). The historical situation seems to have been that anyone with knowledge about the individual related to his or her unfitness could raise the issue in court.100 Seemingly reflective of established practice in the mid‐twentieth century, the Court in Dashwood stated that when a defendant may be unfit, ‘the court acts in such a case on information conveyed to it from any quarter’, including the defendant, his or her advisors, or the prosecution or an independent person.101 These rules continue to govern the way in which unfitness may be raised, even as formally adduced expert evidence has come to be more prominent in the law. In current practice, it is likely that unfitness would be raised by the defence, prosecution, or the judge, as opposed to an independent person. With expert evidence now mandatory, empirical studies indicate that, as a matter of practice, such evidence is crucial to the outcome of an inquiry into unfitness.102

Stretching above its practical significance, expert evidence of unfitness has a broader if more nebulous significance in legal practices. As Don Grubin writes, being unfit to plead is not a psychiatric condition103—but legal reliance on expert medical evidence makes the unfit individual the subject of specialist language and knowledge and assists in rendering unfitness a technical and discrete issue.104 In addition, and running parallel to the practical and more discursive role of expert evidence and expert knowledge, lay knowledge of ‘madness’ remains significant in the law on unfitness (although it could no longer be described as providing the animating framework for findings of unfitness as in the earlier eras). As I discuss in detail (p.87) in relation to insanity, legal actors—including judges, prosecution, and defence counsel—rely on lay knowledge of unfitness although this interacts with their expert legal knowledge of criminal process.105 As a result, the role of lay knowledge of mental incapacity in criminal processes does not begin and end with lay adjudication. Even though the 2004 reforms to the way unfitness to plead is decided (which I discuss below) have meant unfitness is decided by a judge rather than a jury, this does not mean lay knowledge has been eclipsed. In this respect, it is interesting that, as was recently reaffirmed, it is still open to the judge, in the exercise of his or her discretion, to reject the evidence of unfitness, if raised after the trial has commenced, on the basis that his or her observations of the defendant in court are inconsistent with a claim to unfitness.106

In its second stage, the formalization of the law of unfitness to plead occurred on two tracks, with the higher courts on one track and summary proceedings on the other. Neither the 1964 Act nor the 1991 Act addressed the issue of the procedure for dealing with unfit defendants in the summary jurisdiction, as both related only to trials on indictment. Magistrates continue to rely on the civil law as it provides a proxy structure to deal with unfitness to plead in summary jurisdiction.107 This situation has been the subject of long‐standing criticism.108 Although arguably originally the result of historical happenstance,109 the continuation of a two‐track formalization of the law on unfitness to plead exposes an abiding concern with dangerousness, which continues to inform the development of this area of criminal law. The distinction between magistrates’ courts and higher courts broadly maps onto a distinction between less serious and more serious offences (with more serious (p.88) offences broadly connoting more dangerous offenders): as the process of finding that an individual is not amenable to an ordinary trial is more formalized in the latter, the part played by dangerousness in sustaining this two‐track system becomes clear.

Protection from ‘the full force of the criminal law’:110 Infancy

In the period of the twentieth century up to the mid 1990s, the criminal law relating to young offenders also continued a process of formalization. As was the case with unfitness to plead, a deep dynamic of inclusion continued to drive this process of formalization, but more humanitarian concerns with welfare and special treatment interacted with concerns carried over from the previous era. This stage of formalization represented the crest of the expansionist approach to the law of infancy, which has come to be more narrowly circumscribed in the current era.

The second stage of the formalization of infancy unfolded on both the level of law and practice. A separate court system was created by the Children's Act 1908.111 Juvenile courts, which operate as specialized magistrates’ courts, adopt modified procedures including a ‘finding of guilt’ rather than a conviction.112 It was in this stage of formalization that the age of criminal responsibility was set at its current level—10 years.113 The mid‐century point coincided with the peak of a welfare or treatment‐oriented approach to young offenders, which was part of a broader optimism about rehabilitation of offenders.114 For instance, if it had been implemented in full, the Children and Young Persons Act 1969 would have raised (p.89) the age of criminal responsibility to 14.115 The formalization of the criminal law threshold for criminal responsibility—at a particular chronological age—had thinned out the legal approach to young offenders,116 but the rules related to doli incapax protected the child from ‘the full force of the criminal law’.117 The revocation of indeterminate sentences for young people convicted of criminal offences also occurred in this period—rather late in the formalization of the criminal process pertaining to young people.118 The indeterminate sentence of ‘detention at Her Majesty's pleasure’ remains for young offenders convicted of murder.119

During this period, the now revoked law of doli incapax for those aged 10–14 years, which continued to be governed by the common law, provided a legal halfway house for those who found themselves above the threshold age of criminal responsibility but were not so mature as to be treated like any adult.120 The law of doli incapax for children aged 10–14 years, which is generally referred to as a rebuttable presumption (by way of contrast with the conclusive presumption of doli incapax for those aged under 10 years), was not solely a procedural doctrine. As it involved a preliminary or circumscribed inquiry into the capacities of a child defendant, it seems to have occupied an uneasy middle ground between procedure (p.90) and substance (which was perhaps an ingredient in its demise). Before it was abolished, doli incapax for those aged 10–14 years provided an additional, preliminary hurdle for the prosecution to overcome in trying these children. Children who were considered to be insufficiently mature to appreciate that their actions were ‘seriously wrong’ (a phraseology which, from the first decades of the twentieth century, gradually superseded earlier formulations referencing the discretion to ‘discern between good and evil’121) were not able to be tried or convicted. The child who had capacity would be treated like any other offender (although specific sentencing laws as well as a separate court system apply to children and age continues to be available as a basis for clemency in sentencing). In determining whether children were doli incapax, the standard of proof was the criminal standard, and it was necessary to rebut this presumption before proceeding to prove the elements of the offence, the actus reus and mens rea. It was for the prosecution to rebut the presumption of doli incapax.122 It was generally accepted that the closer in age the child to full responsibility, the easier to rebut the presumption.123 Some evidence suggests that the presumption was ignored, and, when it was considered, not difficult to rebut.124 Although it was customary to refer to the now revoked law of doli incapax as a presumption, it was also a defence, and, as such, the law meant that a defendant could respond to criminal charges with an argument that he or she lacked an appreciation that the relevant conduct was ‘seriously wrong’ and should be found not guilty on this basis.125

As elsewhere on the mental incapacity terrain, the conduct comprising the offence committed by a child for the purposes of the rebuttable presumption of doli incapax had an enhanced or thick significance, beyond the significance generally accorded to the actus reus—as a threshold issue. This is usefully illustrated by reference to the evidence needed to rebut the now‐defunct presumption of doli incapax, which supports my argument in two ways. On the one hand, the prohibition on relying on the acts comprising the offence to rebut the presumption means that evidence over and above that relating to the actus reus was required to rebut the presumption. In this respect, the presumption may be contrasted with the presumption of innocence, which may be rebutted by evidence of the acts comprising the offence. This requirement of evidence over and above the actus reus demands consideration of the defendant's conduct around the offence. On the other hand, (p.91) and somewhat paradoxically, the second way in which evidence required to rebut the presumption supports my claim about the thick significance of the defendant's conduct relates to the way in which the prosecution appear to have been slicing the elements of the offence and associated actions—rather finely, enabling the latter to be taken into account despite the prohibition on considering ‘mere commission’ of the act. In addition to relying on the evidence of teachers, psychologists, and others who had had contact with the child, the prosecution could use the circumstances surrounding the act to rebut the presumption of doli incapax. As the Court stated in A v DPP, ‘[c]onsideration of conduct closely associated with the act is permitted for the purpose of deciding whether guilty knowledge is proved’.126 ‘Conduct closely associated with the act’ included lying when confronted by the police at the scene,127 and running away and hiding,128 each of which are closely connected to the offence element itself.129 Both the formal requirement of evidence over and above the actus reus, and the fine slicing of elements of the offence and associated actions effectively enhance the role for the young defendant's conduct in the legal process. As this discussion suggests, a young defendant's conduct holds greater significance than is typically accorded to the actus reus.

By the close of this period, the welfare or treatment‐oriented approach to young offenders had been gradually eroded, and, alongside the dynamic of inclusion, a dynamic of exclusion has come to structure this area of the mental incapacity terrain. By contrast with previous eras, a familiar concern with the dangerousness of young offenders, for instance, now feeds a dynamic of exclusion, according to which the scope of the law of infancy has come to be more circumscribed. This dynamic now operates alongside a dynamic of inclusion. Across the criminal justice system, contradictory constructions of childhood and childhood offending pertain, producing a dense matrix of welfare‐based and punitive approaches to offending by children. For instance, in the light of changing expert knowledge about childhood and adolescence, and in the context of the politicization of child offending, the age of criminal responsibility has been criticized—both for being too high and for being too low.130 The erosion of special procedures for infancy has been referred to as the ‘adultification’ of youth justice.131 An example of this process of ‘adultification’ is the advent of anti‐social behaviour (p.92) orders, which have undercut the practical significance of the age of criminal responsibility, as these orders mean that children under 10 may be exposed to quasi‐criminal proceedings. These mixed approaches to infancy arguably represent a subset of broader social ambiguity in the meanings of childhood.132

Formalization of Unfitness to Plead and Infancy III: the Rise of a Dynamic of Exclusion

In the years since the mid 1990s, unfitness to plead and infancy have continued a process of formalization. However, this process has come to be structured in part by a dynamic of exclusion, which has fostered a more circumscribed approach to the doctrines, and which now operates alongside a dynamic of inclusion. In relation to infancy, even in the absence of a change to the age of criminal responsibility, it is possible to detect the rise of a dynamic of exclusion, as a result of which the space beyond the bounds of criminal responsibility has been circumscribed. This is evidenced in the abolition of doli incapax for children aged over 10 years. Evidence of the rise of a dynamic of exclusion is also apparent in the law on unfitness to plead. As I discuss below, the concerns driving the dynamic of exclusion are those, like fairness to the defendant, familiar from the preceding period, but, by contrast with the preceding period, they are now being listed in support of a more circumscribed approach to unfitness.

A ‘modern outlook’?:133 the Abolition of Doli Incapax for Children 10–14 Years

In the decision that prompted the legislative intervention abolishing doli incapax for children aged over 10 years, the House of Lords roundly critiqued the law but held that it was too firmly embedded in the common law to be abrogated by judicial means.134 In C v DPP, the House of Lords expressed support for a ‘modern outlook’, echoing the Divisional Court, which had heard the matter before it, and which had labelled the rule of doli incapax ‘perverse’ on the basis that ‘it tends to absolve from criminal responsibility the very children most likely to commit criminal acts’.135 The Divisional Court noted that it was no part of the general law that a defendant should be proved to appreciate that his or her act was ‘seriously (p.93) wrong’, a stipulation that was itself ‘conceptually obscure’.136 These and other criticisms of doli incapax had been aired in antecedent government reports.137 After C v DPP, Parliament legislated to abolish doli incapax in the Crime and Disorder Act 1998.138 Subsequent decisions interpreted this Act to have abolished both the presumption and the defence of doli incapax as it applied to children aged over 10 years.139 As a result of this change in the law, the distinction between children aged 10 and over and children aged 14 years and over has been removed.140 With the removal of what had been a ‘protection from the full force of the law’ for young defendants, and without a change in the age of criminal responsibility, the merciful space accorded to youth was circumscribed. Concern for the welfare of young people, familiar from the preceding era, was feeding a dynamic of exclusion, which was now driving the formalization of the law.

As well as evidencing the rise of a dynamic of exclusion—according to which the scope of infancy is defined more narrowly—the final stages of the life of doli incapax for those aged 10–14 years reveals the conceptual ambiguity that surrounds youth offending. This relates to the meanings accorded to the abnormality of youth via the criminal law. In cataloguing the undesirable aspects of doli incapax for childrenaged over 10 years, the House of Lords pointed out that the doctrine worked in such a way that meant all children aged 10 to 13 were presumed to lack understanding until they were proved to be of normal mental development. This apparent illogicality masks a deeper, conceptual ambiguity about the kind of difference or abnormality connoted by infancy in criminal law. To me, there seems (p.94) to be a slippage between the notion of offending by children (a category based on the type of offender) and the notion of childhood offending (a category based on the type of offence). According to the first notion, the relevant difference or abnormality is age, while, according to the second notion, the relevant difference relates to the type of offence committed. The conceptual slippage between ‘crimes committed by children’ and ‘childhood crimes’ is revealed in the case of children who commit serious offences. They are vulnerable to the exhaustion of mercy: at this end of the offence spectrum, the special status granted to children seems to wear out. This is perhaps best illustrated by the treatment the two 10‐year‐old killers of Jamie Bulger, a high‐profile offence which was met with a punitive social and legal response (of which the changes chronicled here are a part).141 This type of case exposes the kind of abnormality connoted by infancy as unstable, liable to description as either a time‐limited stage in human development, or as an indelible stamp of dangerous difference. With the abolition of doli incapax for children over 10 years, what is now an apparently sharp distinction between the period of non‐responsibility and the moment of criminal responsibility masks this ambiguity about youth offending. This ambiguity aboutyouth offending is arguably a product of a broader ambiguity in social attitudes and beliefs about childhood,142 although, it is notable that a parallel conceptual ambiguity can also be detected elsewhere on the mental incapacity terrain.143

‘To speed things along and tidy things up’:144 Unfitness to Plead in the Current Era

Like infancy, the formalization of unfitness to plead has continued into the current era. And, also like infancy, this process has come to be structured in part by a (p.95) dynamic of exclusion, which has fostered a more circumscribed approach to unfitness to plead, and which now operates alongside a dynamic of inclusion. Again, the concerns driving the dynamic of exclusion are familiar from the preceding period, but, now, they have come to generate a more circumscribed approach to unfitness.

(i) The ‘Trial of the Facts’

Over recent years, the scope of a ‘trial of the facts’ has been determined by a series of decisions passed by appellate courts. Beneath the technicality of judicial discussion, it is possible to detect evidence of both a dynamic of inclusion and a dynamic of exclusion operating here. As discussed above, a ‘trial of the facts’ was included in Section 4A of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. This change rendered unfitness a more specialized and complex legal provision (while leaving the criteria for a finding of unfitness intact). Judicial determination of the scope of a ‘trial of the facts’ has focused on the meaning of the phrase, ‘the act’. When first invited to consider the phrase in Egan, the Court of Appeal concluded that an inquiry into whether a defendant ‘did the act’ required the prosecution to prove ‘all the necessary ingredients’ of the offence.145 The Egan interpretation was criticized on the basis that it contravened parliamentary intention.146 Shortly after Egan was handed down, a differently constituted Court of Appeal had the opportunity to revisit the question of the proper interpretation of ‘did the act or made the omission charged’ in the 1991 Act. In Attorney General's Reference (No 3 of 1998), the Court of Appeal concluded that, as the language of the 1991 Act borrowed that of the Trial of Lunatics Act 1883, the phrase carried the same meaning as it did in the 1883 statute.147 When it came to decide on the scope of a ‘trial of the facts’ in Antoine, the House of Lords elected to follow Attorney (p.96) General's Reference (No 3 of 1998) rather than Egan.148 In relation to the meaning of the term ‘act’, the House of Lords concluded that statutory use of the phrase ‘act or omission’ rather than ‘offence’ in Section 4A(2) indicated that Parliament had made it clear that the jury was not to consider the mental elements of an offence.149 The House of Lords reasoned that Section 4A strikes a balance ‘between the need to protect a defendant who has, in fact, done nothing wrong, and is unfit to plead’ and ‘the need to protect the public’ in distinguishing between ‘a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or made an omission) which would constitute a crime if done (or made) with the requisite mens rea’.150

Most recently, the two issues left outstanding by Antoine have been resolved. The first, resolved in the decision of Grant, related to the availability of the partial defence of provocation in a ‘trial of the facts’. The Court of Appeal concluded that provocation is not available to a defendant who has been found unfit to plead.151 The second issue that remained after Antoine concerned participatory liability. That issue arose in Martin, in which the defendant was charged with several offences arising from a stabbing.152 The defendant was found unfit to plead and, on a ‘trial of the facts’, was found to have done the act. On appeal, the Court of Appeal upheld the trial judge's directions to the effect that the jury could find that the defendant did the act if he either stabbed the victim or if he took part in what he ‘knew’ at the time to be a knife attack, concluding that reference to what the defendant ‘knew’ was not an inappropriate reference to the state of mind of the defendant.153

Reflective of the larger forces influencing the development of criminal law and procedure in the current era, and following the implementation of the European Convention on Human Rights 1950 into domestic law via the Human Rights Act 1998, a ‘trial of the facts’ has also been measured against human rights norms. The (p.97) issue of the compatibility of a ‘trial of the facts’ with human rights norms has been considered by the Court of Appeal on more than one occasion and by the House of Lords in R v H.154 In these decisions, the courts concluded that Article 6, the right to a fair trial, was not engaged because proceedings under Sections 4, 4A and 5 of the 1991 Act (R v H considered Section 4A only) did not involve a criminal charge within the meaning of Article 6.155 Regarding Article 5, the right to liberty and security, the Court in Grant held that it was reasonable that mandatory hospitalization (which I discussed above) follow a finding that the defendant, who was charged with murder, had done the act but was under a disability so as to be unfit to be tried.156

The gradual process by which the scope of a ‘trial of the facts’ has been determined evidences concern with both the dangerousness of the unfit individual and fairness to him or her. These two concerns are referenced in a statement about the purpose of a ‘trial of the facts’ recently made by the Court of Appeal:

The purpose of such a hearing is to try to arrive as nearly as possible at the same result as if there had been a trial, the dual objectives being that, if it could not have been proved after a full trial that the person in question did the acts alleged, he should be acquitted, but, if it could be proved, he should be eligible to be detained under the protectionary powers.157

By contrast with previous eras, the familiar concerns with the dangerousness of the defendant and fairness to him or her no longer point in the same direction. Rather, they are currently pitched to compete with each other, meaning that the law on a ‘trial of the facts’ demands a balance between them. This balancing process occurs across both a dynamic of inclusion (according to which concern with dangerousness drives an expansive approach to unfitness) and a dynamic of exclusion (according to which the law of unfitness should not be drawn too widely, so as to too readily deny an individual who has been charged with an offence an ordinary trial).

There is a final point to note regarding a ‘trial of the facts’. Reflecting the intimate connection between actus reus and mens rea as a matter of practice if not theory, and as the cases indicate, it has proved difficult to neatly quarantine issues to be dealt with in a ‘trial of the facts’ as required per Section 4A. In its 2010 Consultation Paper on unfitness to plead, the Law Commission recognized that limiting Section 4A to the external elements of an offence had proved problematic, but, also noted that, on the other side, ‘requiring the prosecution to prove all (p.98) elements of the offence could, without more, be detrimental to public safety’.158 The Law Commission canvassed a range of options to deal with the ‘trial of the facts’ issue, and proposed replacing it with a two‐step procedure. According to this proposal, there would be a procedure whereby the jury considers evidence on all elements of the offence, leading to three possible outcomes—that the accused did the act and there are no grounds for acquittal, an outright acquittal, or a special verdict (such as ‘not guilty by reason of insanity’).159 As the Commission acknowledged, this procedure would have some of the qualities of a trial because, if implemented, it would involve the option of a qualified acquittal, but it would not result in a conviction.160

(ii) A Decision of the Judge Alone

The process of deciding unfitness is now dominated by professional actors. As per the Criminal Lunatics Act 1800, until 2004, a jury decided whether a defendant was unfit to plead (the ‘trial of the issue’). As a result of the Domestic Violence, Crime and Victims Act 2004, juries no longer have a role in deciding whether a defendant is unfit to plead, although a jury is empanelled for a ‘trial of the facts’ following a finding of unfitness.161 The 2001 Review of the Criminal Courts of England and Wales (the Auld Report) advocated a change in the law in this respect.162 The change from jury to judge decision‐making on the issue of unfitness reflects institutional pressures to save on the length and cost of trials. The Auld Report's express concerns with the efficiency of the criminal trial process seem to have motivated the legislature to reform how unfitness is decided.163 Making (p.99) the issue of unfitness one for a judge alone cements the current position of unfitness as a discrete procedural issue relating to the question of whether the trial will go forward, and represents the most recent step in the process of formalization.

(iii) The Criteria for a Finding of Unfitness

The criteria for a finding of unfitness look set to be the last bastion to fall along the formalization trajectory. The strong procedural profile of unfitness to plead as a discrete, technical provision has diverted focus away from the substantive content of the provision—the criteria for a finding of unfitness—which had received little judicial or other attention until recent years. This strong procedural profile has meant that, while legislative‐driven change has reformed the way in which unfitness is decided and proved, the legal test for unfitness continues to be governed by the common law. The criteria were unaffected by the 1964 and 1991 Acts and thus have remained unaltered since the decision of Pritchard.164 As outlined above, the criteria for a finding of unfitness are ‘whether the prisoner is mute by malice or not’, ‘whether he can plead to the indictment or not’, and ‘whether he is of sufficient intellect to comprehend the course of the proceedings on the trial so as to make a proper defence’.165 While a variety of medical conditions has formed the basis of findings that defendants are unfit,166 it is widely recognized that the Pritchard (p.100) criteria set a high threshold for a defendant to be found unfit to plead. In relation to comprehension, for instance, the criteria are restricted to defects of cognition.167 As R M Mackay argues, on the current law, a defendant will be fit even if he or she has only a ‘rudimentary’ understanding of the trial process.168

Motivated by a desire to reform the law in accordance with ‘modern psychiatric thinking and with the modern trial process’, the Law Commission's 2010 Consultation Paper on unfitness to plead contained a proposal that unfitness be determined by a broad test that assesses whether the accused has decision‐making capacity for trial.169 Modelled on the civil law of capacity, this test would take into account all the requirements for meaningful participation in the criminal proceedings, bearing in mind the spectrum of decisions an individual may need to make.170 According to the Commission's proposal, in determining the defendant's decision‐making capacity, it would be incumbent on the judge to take account of the complexity of the particular proceedings and gravity of the outcome for the defendant.171 In this respect, the Law Commission proposal straddled what were two distinct strands of reform proposals: the first strand of reform proposal advocated the enhancement and further elaboration of the Pritchard criteria for a finding of unfitness to plead,172 and the second strand of reform proposal advocated a flexible, open‐textured approach that would allow judges to determine (p.101) unfitness to plead in the context of each case.173 In accordance with the common law, this new decision‐making capacity test would not require that any decision the accused makes be rational or wise.174

As with the most recent developments in the law of unfitness to plead, these proposed changes reveal the presence of both dynamics of inclusion and exclusion. The Law Commission's proposal to introduce a broad test that assesses whether the accused has decision‐making capacity for trial represents a continuation of the dynamic of inclusion, by which the scope of unfitness is defined broadly, in that the Law Commission made its proposals on the basis that the new test would expand the scope of the law and anticipated that it would increase findings of unfitness, if implemented.175 But there are several factors to indicate that a dynamic of exclusion, working in the other direction, to circumscribe unfitness, is now in play in this area as well. First, the Commission made a case for their proposal on the basis that it is appropriately limited to an assessment of an individual's ability to make particular decisions, and does not, for instance, ‘necessarily reduce a person to being “unfit” simply because of a low cognitive ability or learning disability’.176 Second, and concurrent with their proposals for a new test for unfitness, the Law Commission advocated increasing the use of ‘special measures’ (such as giving evidence via live video link) in ordinary trials to minimize the ‘exclusion’ of ‘vulnerable defendants’.177 Reflecting on the jurisprudence of the European Court of Human Rights (which has developed largely in relation to child defendants), as well as domestic case law, the Law Commission proposed that the decision‐making capacity of those who are potentially unfit should be assessed with a view to ascertaining whether an accused could undergo a trial or plead guilty with the assistance of special measures or reasonable adjustments. The Commission noted that taking the availability of ‘special measures’ into account in the new test for unfitness is likely to increase the prospect that some defendants currently found (p.102) unfit will be able to stand trial.178 This suggests that, even in the context of flexible disposal options for an unfit individual, the imperative to try the individual wherever possible enjoys an enhanced prominence. This reflects the growing human rights influence on this area of law, and the importance of a trial and a conviction in advance of a custodial order,179 which is feeding into a dynamic of exclusion here.

Through a process of formalization, unfitness to plead and infancy now take technical and distinct legal form, although each traces their origins to the same broad set of morally evaluative principles and practices which rested on largely undifferentiated ideas of incapacity. While the process of formalization continues in the current era, the deep dynamics that are shaping it have altered over time: the process of formalization was shaped by a deep dynamic of inclusion—whereby the scope of these mental incapacity doctrines was drawn broadly—but, recently, has also come to be structured by a dynamic of exclusion, whereby the scope of the doctrines is more circumscribed. At base, both doctrines encapsulate the notion that a defendant should be the subject, rather than the object, of criminal process. As such, both infancy and unfitness to plead have symbolic significance in the criminal justice system. Although obscured by the prevailing technicality and precision of the relevant legal forms, infancy and unfitness to plead concern both a defendant's understanding of, and participation in, criminal proceedings, and the reach of the criminal law, and, together, engage the normative dimension of criminal process.

Notes:

(1) See Chapter 2 for my reconstruction of the mental incapacity terrain and explanation of the category non‐exculpatory mental incapacity doctrines.

(2) See G Maher ‘Age and Criminal Responsibility’ [2004–05] 2 Ohio State Journal of Criminal Law 493. In the Scots law, non‐age has been labelled a plea in bar of trial, grouped together with entrapment, time limitations, and unfitness to plead: see J Chalmers and F Leverick Criminal Defences and Pleas in Bar of Trial (London: Routledge, 2006) 193.

(3) As a procedural provision, unfitness has been analysed beneath broad rationales for criminal procedural rules such as threat to the integrity of the justice system or unfairness to the accused. See, for instance, I Campbell Mental Disorder and Criminal Law in Australia and New Zealand (Sydney: Butterworths, 1988); D Chiswick ‘Psychiatric Testimony in Britain: Remembering your Lines and Keeping to the Script’ (1992) 15(2) International Journal of Law and Psychiatry 171; and I Freckelton ‘Rationality and Flexibility in Assessment of Fitness to Stand Trial’ (1996) 19(1) International Journal of Law and Psychiatry 39.

(4) The two most well‐known studies of mental incapacity in criminal law (R D Mackay Mental Condition Defences in the Criminal Law (Oxford: Clarendon Press, 1995) and N Walker Crime and Insanity in England (Vol 1: The Historical Perspective) (Edinburgh: Edinburgh University Press, 1968)) include unfitness to plead but not infancy. Where it has not been examined in isolation, infancy has been connected to criminal law and criminological examinations of youth justice, or family law relating to children, care, and custody. See, for example, A Bottoms and J Dignan ‘Youth Justice in Great Britain’ (2004) 31 Crime and Justice 21.

(5) As the House of Lords said of the treatment and punishment of young offenders in the context of their discussion of doli incapax, it is ‘not so much a legal as a social problem, with a dash of politics thrown in’: see C (A Minor) Appellant v DPP [1996] AC 1, 40.

(6) See further Chapter 3 for a discussion of the significance of formalization for my ‘manifest madness’ analysis.

(7) See for discussion Walker Crime and Insanity in England (Vol 1) 24–5.

(8) Crime and Insanity in England (Vol 1) 24–5. Walker argues that those individuals who had communication difficulties (who were referred to as ‘deaf and dumb’) featured prominently in this informal practice. Walker speculated that ‘the practice of exempting the deaf‐mute from trial may well have preceded…the practice of excusing the insane from either trial or punishment’ (219). Individuals who, through informal practice, were excused from trial may have been remanded to prison until they were fit to be tried (220).

(9) Walker suggests that the term ‘insane’ included ‘idiots as well as madmen’: see Crime and Insanity in England (Vol 1) 225. The term non compos mentis was used as a generic term to cover all persons of unsound mind, including ‘idiots’ and ‘lunatics’: see F Woodbridge ‘Some Unusual Aspects of Mental Irresponsibility in the Criminal Law’ (1939) 29(6) Journal of Criminal Law and Criminology 822, 823.

(10) High mortality and short life expectancy meant that young people were a larger percentage of the population up to and including the Victorian era: see T E Jordan Victorian Childhood: Themes and Variations (New York, State University of New York Press, 1987) 271.

(11) OBP, Thomas Layton, 6 April 1687 (t16870406–36).

(12) OBP, John Bennet, 23 February 1683 (t16830223–5).

(13) OBP, ‘young Lad, Apprentice in London’, 10 October 1677 (t16771010–4).

(14) See A W G Kean ‘The History of the Criminal Liability of Children’ (1937) 53 Law Quarterly Review 364, 366. For discussion, see T Crofts The Criminal Responsibility of Children and Young Persons: A Comparison of English and German Law (Aldershot: Ashgate, 2002) 6–11. It seems likely that, while references to mental processes and ‘discretion’ appear in the legal commentary, this two‐tier approach to criminal responsibility originated with the physical process of puberty: see V D Sharma ‘The Criminal Responsibility of Children in England’ (1974) 3 Anglo‐American Law Review 157, 161.

(15) The age of 14 seems to have come from Lord Coke's writings, which were taken up by Hale, who also stated that absolute immunity lay for a child under the age of seven. See Kean ‘The History of the Criminal Liability of Children’ 364–70 and Woodbridge ‘Physical and Mental Infancy in the Criminal Law’ 434. The age of criminal responsibility was raised to eight by the Children and Young Persons Act 1933 and to 10 by the Criminal Justice Act 1963.

(16) See Sharma ‘The Criminal Responsibility of Children in England’ 161–2.

(17) Matthew Hale, Historia placitorum coronae (The history of the pleas of the crown) (1st American edn by W A Stokes and E Ingersoll, Vol 1, Philadelphia, 1847) [25], in The Making of Modern Law database 〈http://galenet.galegroup.com/servlet/MOML〉 (last accessed 26 September 2011).

(18) Matthew Hale, Historia placitorum coronae[26]. Hale stated that a child under seven cannot be guilty of a felony. However, it is widely accepted that Hale's prescriptions were aspirational as much as actual, and it is not a surprise to find contradictory data in the Old Bailey Proceedings. For instance, in the trial of a young person for theft in 1784, the judge expressly rejected the idea of a minimum age of criminal responsibility, stating that the question in all cases is ‘whether the Jury are satisfied that the child, of whatever age, has sufficient knowledge and discretion to understand that he is doing a criminal act? for if he has, he is answerable to the law for the consequences’: see OBP, William Horton, 7 July 1784 (t17840707–77).

(19) J H Langbein Torture and the Law of Proof: Europe and England in the Ancien Regime (Chicago: University of Chicago Press, 1977) 75. According to Langbein, this perception dated from the earlier era in which trials by ordeal were the usual method of prosecution. In this era, individuals could avoid trial by ordeal by electing trial by jury.

(20) D Grubin ‘What Constitutes Fitness to Plead?’ [1993] Criminal Law Review 748, 750. Walker argues that defendants who would not plead presented a more common problem for medieval and Tudor judges than defendants who could not plead (Crime and Insanity in England (Vol 1) 220). According to Walker, remaining silent in response to a charge was a ‘common gambit of men of property’—a silent defendant's property would not be forfeited to the Crown if he was executed (184); see also J M Beattie Crime and the Courts in England 1660–1800 (Oxford: OUP, 1986) 337.

(21) If the defendant was found to be ‘mute by malice’, he or she would be subject to the practice of peine forte et dure, which involved weights pressed on the defendant's chest, in order to force him or her to enter a plea (see, for example, OBP Thomas Barlow, Oliver Morris, 13 January 1688 (t16880113–41). The category of those who were considered genuinely mute covered two groups of defendants: those who were ‘deaf and dumb’ and those who were ‘insane’: see Grubin ‘What Constitutes Fitness to Plead?’ 751.

(22) The associated practice of peine forte et dure—which reflected the at first prevailing and then subsisting ideas about proof in the form of divine judgment—continued into the eighteenth century. See Beattie Crime and the Courts in England 337.

(23) See A Duff et al The Trial on Trial (Vol 3): Towards a Normative Theory of the Criminal Trial (Oxford: Hart, 2007) 31, and 29–40 on the altercation criminal trial more generally. See also my Chapter 5 for a discussion of informal criminal processes then prevailing, and Chapter 6 for a discussion of the epistemological dimensions of this type of trial process.

(24) See The Trial on Trial (Vol 3) 34.

(25) J H Langbein The Origins of the Adversary Criminal Trial (Oxford: OUP, 2003) 36. I discuss the epistemological aspects of this criminal process in Chapter 6.

(26) See, for example, OBP, John Smith, 5 April 1676 (t16760405–3), and for a later example, OBP, William Burrams, 13 January 1796 (t17970113–97).

(27) Langbein The Origins of the Adversary Criminal Trial 36, 20; see also Beattie Crime and the Courts in England 336.

(28) According to Roger Smith, historically, ‘insanity’ could be raised at any stage between arrest and execution of sentence (90). When a person showed extremely abnormal conduct, it was likely that insanity would be raised early on: R Smith Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981) 90.

(29) OBP, Susannah Milesent, 11 November 1794 (t17941111–1).

(30) The Old Bailey record does not indicate what if any order was made in relation to Susannah Milesent. Like the practice of disposing of certain individuals who successfully raised an informal insanity plea, it is likely that disposal of defendants who were ‘mute by visitation of God’ was an informal, discretionary, and individualized matter, affected by variables such as social position, financial resources, and family support.

(31) See Chapter 6 for a historical discussion in the context of insanity; see also Chapter 3 regarding ‘manifest madness’.

(32) For instance, Walker argues that an accused had to be ‘very disordered indeed’ to have his or her trial postponed: see Walker Crime and Insanity in England (Vol 1) 222.

(33) Matthew Hale, Historia placitorum coronae [30]. The standard Hale articulated applied to capital offences rather than misdemeanours: see Walker Crime and Insanity in England (Vol 1) 222.

(34) See Chapter 3 for a discussion of the thick significance of a ‘mad’ defendant's conduct in legal evaluation and adjudication.

(35) See A Platt and B L Diamond ‘The Origins of the “Right and Wrong” Test of Criminal Responsibility and its Subsequent Development in the United States: An Historical Survey’ (1966) 53 California Law Review 1227. See also discussion in R v JTB [2009] 2 Cr App R 500.

(36) OBP, John Tirey, William Tirey, James Tirey, 23 May 1787 (t17870523–30). The ‘good and evil’ test was used in the murder trial of Earl Ferrers in 1760 (R v Ferrers (1760) 19 St Tr 885) and in the trial of Daniel M’Naghten in 1843. See Chapters 5 and 6 for discussion.

(37) In criminal law scholarship, the conceptual connections between insanity and infancy are reflected in Michael Moore's argument that insanity, intoxication, and infancy all belong in the category of ‘status excuse’: see M S Moore ‘Causation and the Excuses’ (1985) 73 California Law Review 1091, 1098. See also Maher ‘Age and Criminal Responsibility’ 493.

(38) Rex v Pritchard (1836) 7 C & P 303, 304 per Baron Alderson.

(39) 39 & 40 Geo. 3, c.94. This Act was subtitled ‘An Act for the Safe Custody of Insane Persons Charged with Offences’.

(40) R v Hadfield (1800) 27 St Tr 1281. I discuss this case in more detail in Chapter 5.

(41) See M J Wiener Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge: CUP, 1990) 84; R Moran ‘The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield’ (1985) 19(3) Law and Society Review 487, 511.

(42) Section 2 of the 1800 Act had a broad reach as it applied to those charged with ‘any offence’, meaning that it covered offences of treason, murder, felony, and misdemeanor: see Walker Crime and Insanity in England (Vol 1) 80, 224. The enhanced profile that individuals who could not be tried enjoyed by the end of the eighteenth century, and concern about their disposal, helps to account for the exclusion of a specific provision on unfitness in this Act.

(43) Thus, although Duff is now right to state that an unfit defendant is not exempt from trial merely because he or she would have been eligible for an insanity verdict in the early decades of the nineteenth century, this claim could not have been made with confidence. R A Duff Trials and Punishments (Cambridge: CUP, 1986) 30.

(44) As Walker suggests, this would have been contingent, depending ‘partly on the judgment of individual doctors, partly on the extent to which his state of mind had improved or deteriorated between the crime and the trial, and partly on the strictness of the court’: see Walker Crime and Insanity in England (Vol 1) 85.

(45) Like insanity for the purposes of conviction, insanity for the purposes of trial prevented defendants who had been charged with capital offences from being executed as defendants found unfit were rarely remitted for trial: see Crime and Insanity in England (Vol 1) 229.

(46) A R Poole suggests that a definition was not needed in the 1800 Act and the statutory reference to defendants who were ‘insane on arraignment’ would have been taken to refer to ‘madness and lunacy’: A R Poole ‘Standing Mute and Fitness to Plead’ [1968] Criminal Law Review 6; see also Grubin ‘What Constitutes Fitness to Plead?’ 752.

(47) See further Chapters 5 and 6.

(48) Rex v Pritchard (1836) 7 C & P 303. Pritchard followed soon after Rex v Dyson (1831) 7 C & P 305, which also included a discussion of unfitness. Dyson was regarded as ‘deaf and dumb’, and Justice Parke directed the jury to determine whether the defendant was ‘sane or not’, instructing them using the words of Hale: if the defendant did not have ‘intelligence enough to understand the nature of the proceedings against her, they ought to find her not sane’ (306). The jury returned a verdict that Dyson was ‘not sane’ and the Court ordered Dyson to be kept in strict custody as under the 1800 Act.

(49) Smith Trial by Medicine 93.

(50) Rex v Pritchard (1836) 7 C & P 303, 304. Pritchard was found ‘not capable of taking his trial’ and was confined ‘in prison during his Majesty's pleasure’.

(51) C Emmins ‘Unfitness to Plead: Thoughts Prompted by Glenn Pearson's Case’ [1986] Criminal Law Review 604, 606; see also Walker Crime and Insanity in England (Vol 1) 224–5.

(52) See Wiener Reconstructing the Criminal 50–2 for discussion.

(53) OBP, William Newton Allnutt, 13 December 1847 (t18471213–290) (a trial in which a ‘medical man’ testified that the 12‐year‐old prisoner was suffering from ‘partial insanity’ the effect of which was to prevent him from distinguishing right from wrong).

(54) Reg v Smith (Sidney) (1845) 1 Cox CC 260. See also R v Kershaw (1902) 18 TLR 357 and CC (A Minor) v DPP [1996] 1 Cr App R 375. It seems possible that Reg v Smith actually represented a change in legal practice at the time, just as Woolmington is widely regarded to have changed the law on burdens of proof while professing to uphold it (see Chapter 6 for discussion of this decision). In any case, there seems to have been some residual uncertainty about this prohibition on considering the facts themselves in serious cases. As recently as 1988, in R v Coulburn (1988) 87 Cr App R 309, the Court of Appeal appeared to rely on what the child defendant knew about sticking a knife into the victim (315–16). The House of Lords subsequently cautioned that that decision could not provide authority for the general proposition that ‘the facts may be left to speak for themselves if the offence is serious enough’: see C (A Minor) v DPP [1996] AC 1, 9 per Laws J.

(55) An example of the role of good character is provided by the trial of OBP, John Peter Mayaffree, 26 February 1746 (t17460226–36). The trial record states that ‘The Jury on Account of his Excellent Character and tender Years, recommended him to his Majesty's Mercy’.

(56) Wiener Reconstructing the Criminal 51.

(57) See for instance, G S Frost Victorian Childhoods (Westport, CT: Praeger Publishers, 2009) 133, and ch. 6 more generally.

(58) See Victorian Childhoods 133.

(59) Reformatory Schools (Youthful Offenders) Act 1854 (17 Vict, c 86); Frost Victorian Childhoods 136.

(60) See Chapter 6 on insanity and automatism.

(61) See Langbein The Origins of the Adversary Criminal Trial 334–6; L Farmer ‘Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45’ (2000) 18(2) Law and History Review 397, 406.

(62) The reform of the criminal trial was a plank in a large raft of reforms, which extended to the criminal law and prisons, and which were themselves a part of reform of government, aiming at ‘tackling corrupt practices and modernizing political and legal institutions’: see Farmer ‘Reconstructing the English Codification Debate’ 403.

(63) ‘Reconstructing the English Codification Debate’ 413. These reforms included the introduction of defence counsel in felony trials (Prisoners’ Counsel Act 1836 (6 & 7 Will IV c.114)), the creation of public prosecutors (Prosecution of Offences Act 1879 (42 & 43 Vict. c.22)), and the introduction of a limited appeal system in criminal cases (Crown Cases Act 1848 (11 & 12 Vict c.43)) and the defendant's right to give evidence at the end of the century (Criminal Evidence Act 1898). See D J A Cairns Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Clarendon Press, 1998) 169–76; C Emsley Crime and Society in England 1750–1900 (Harlow: Pearson Longman, 2005) 183–211.

(64) Wiener Reconstructing the Criminal 66–7. On the development of summary jurisdiction, see Farmer Criminal Law, Tradition and Legal Order.

(65) Reconstructing the Criminal 65.

(66) Reconstructing the Criminal 131, 135.

(67) See Reconstructing the Criminal 133–5 for discussion.

(68) Reconstructing the Criminal 294 and, more broadly, 285–94.

(69) Reconstructing the Criminal 51.

(70) See Frost Victorian Childhoods ch. 7. Frost argues that these changes amounted to an expansion of the time in which children could be children. See also H Cunningham The Children of the Poor (London: Blackwell, 1991). Cunningham argues that the theory of ‘recapitulation’, a belief that all children proceeded through the stages of civilization, helped erode distinctions between rich and poor (97), fostering an idea that childhood for all children should be marked by freedom.

(71) Wiener Reconstructing the Criminal 131. As Wiener writes about juveniles, ‘their guilt (like that of lunatics) was more questionable than that of adult offenders, although (also like lunatics) they seemed more ruled by impulse and thus in the long run even more of a social danger’ (131). For a discussion of gender, ‘madness’ and crime in the context of infanticide, see my Chapter 8.

(72) Rex v Governor of Stafford Prison ex parte Emery [1909] 2 KB 81, 86 per Lord Alverstone.

(73) Rex v Governor of Stafford Prison ex parte Emery [1909] 2 KB 81, 83.

(74) Rex v Governor of Stafford Prison ex parte Emery [1909] 2 KB 81, 84. Lord Alverstone referred with approval to the decisions of Dyson and Pritchard and stated that the word ‘insane’ in Section 2 of the 1800 Act ought to be construed ‘with reference to the question whether the prisoner can or cannot be tried upon the indictment’ (86). Lord Alverstone justified this expansive approach by claiming that it was ‘in accordance with reason and common sense’ (84–5). The broad approach of the court in Emery to insanity for the purposes of unfitness was cited with approval by the Court of Criminal Appeal in Podola in 1960 (R v Podola [1960] 1 QB 325, 356).

(75) R v Podola [1960] 1 QB 325.

(76) R v Podola [1960] 1 QB 325. Before it was resolved in Podola, the question of the burden of proof for unfitness to plead had vacillated considerably. The burden of proving a defendant fit to plead was held to lie with the prosecution in R v Davies (1853) 3 C & K 328 (see also R v Sharp [1960] 1 QB 357). In Podola, Chief Justice Lord Parker stated that the correct approach was that the burden of proving unfitness lay on the defence—an approach which had been taken in Reg v Turton (1854) 6 Cox 395 (see also R v Rivett (1950) 34 Cr App R 87)—and that Davies and its progeny were wrongly decided (351).

(77) R v Podola [1960] 1 QB 325, 350; Robertson [1968] 1 WLR 1767, 1773. The evidential issue of the burden and standard of proof that applied to the unfitness to plead issue was before the Court in Sharp (R v Sharp [1960] 1 QB 357). In this case, the Court decided that, as unfitness was a preliminary issue, ‘it would be right for the prosecution to put its evidence before the court and to begin’ (360 per Justice Salmon). This issue came to the Court of Criminal Appeal in the same year in Podola, where the Court held that Sharp was wrongly decided. In Podola, the Court held that the burden of proof on the issue of the defendant's unfitness lay with the defence, and that the standard of proof is the balance of probabilities (350).

(78) Criminal Law Revision Committee, Criminal Procedure (Insanity) (Cmnd 2149, 1963). The CLRC recommended that the question of a defendant's ability to plead continue to be determined by a jury because of the ‘great public importance of the issue from the point of view of the accused and of the public’ (para 15). The CLRC noted the problem that certain defendants may be entitled to an acquittal, although it may not be possible to try them because of their disability (para 18). With this in mind, the Committee recommended that the court have discretion as to whether the question of fitness should be addressed when raised, or postponed until any time up to the opening of the defence case (para 24, 28). Neither the CLRC Report nor the 1964 Act addressed the substantive issue of the reach of the law on unfitness, perhaps on the basis that, as the CLRC Report stated, the criteria of unfitness were ‘well established’. As a result, the criteria for determining whether a defendant was unfit to plead continued to be governed by the Criminal Lunatics Act 1800 and the cases decided under it.

(79) Section 4(2). This also resolved earlier inconsistency in the case law discussions of the point in the proceedings in which the issue of unfitness could be raised. In Roberts (R v Roberts [1954] 2 QB 329), Justice Devlin held that the issue of the defendant's fitness could either be raised at the start of the trial, or it could be postponed until the end of the prosecution case. Roberts was not followed in Benyon (R v Benyon [1957] 2 QB 111), where the Court held that the issue of fitness must be dealt with as a preliminary issue. In that case, Justice Byrne relied on Hale's History of the Pleas of the Crown, the Criminal Lunatics Act 1800 and the nineteenth-century decision of Berry (R v Berry (1876) 1 QBD 447).

(80) Section 4. The judge must raise the issue of unfitness if he or she believes it to be an issue and it has not been raised by either party: R v Podola [1960] 1 QB 325, 349–50 per Lord Parker.

(81) Sections 5(1) and 5(4).

(82) As Duff writes, the Act treated the unfit defendant as if he or she was guilty: see Duff Trials and Punishments 33.

(83) The prospect of indefinite detention in hospital meant that, unless the defendant was charged with a serious offence, defence counsel had little incentive to initiate an inquiry into unfitness: see R v H [2003] UKHL 1, [8]; R D Mackay ‘The Decline of Disability in Relation to the Trial’ [1991] Criminal Law Review 87, 88; G Kearns and R D Mackay ‘The Trial of the Facts and Unfitness to Plead’ [1997] Criminal Law Review 644, 645.

(84) United Kingdom Report of the Committee on Mentally Abnormal Offenders (Cmnd 6244, 1975) (‘Butler Report’).

(85) Butler Report paras 10.24–10.25 and 1991 Act, s 4A.

(86) 1991 Act, s 4(6) and Butler Report para 10.41.

(87) The Committee labelled the part played by the jury an anachronism, and noted that juries are not normally involved in the decision as to ‘whether the trial should proceed’ (Butler Report para 10.22). The Butler Committee had recommended that judges should have the power to decide the question of unfitness, whether the medical evidence is unanimous or disputed, unless the defence desire that the question go to the jury (para 10.20).

(88) Section 4A(2). The requirement of jury decision‐making has recently been altered by the Domestic Violence Crime and Victims Act 2004, which I discuss below.

(89) See R D Mackay ‘Unfitness to Plead—Data on Formal Findings from 2002 to 2008’, Appendix C, Law Commission Unfitness to Plead: A Consultation Paper (Law Com No 197, 2010) and R D Mackay, B J Mitchell and L Howe ‘A Continued Upturn in Unfitness to Plead—More Disability in Relation to the Trial Under the 1991 Act’ [2007] Criminal Law Review 530.

(90) For the range of disposal options, see 1991 Act, s 5(2) and Butler Report para 10.29.

(91) Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s 5, as amended by Domestic Violence, Crime and Victims Act 2004, s 24. Of these disposal options, empirical studies suggest that hospital based disposals are most common: see Mackay ‘Unfitness to Plead– Data on Formal Findings from 2002 to 2008’ (Law Com No 197, 2010). When compared with disposals following successful insanity defences (where the courts have the same set of options), community based disposals are less common where a defendant has been found unfit to plead (Mackay, Mitchell and Howe ‘A Continued Upturn in Unfitness to Plead’ 544; R D Mackay and G Kearns ‘An Upturn in Unfitness to Plead? Disability in Relation to the Trial Under the 1991 Act’ [2000] Criminal Law Review 532, 545). It is likely that this reflects the fact that more defendants who are unfit at the time of the trial will need hospital treatment than those who were insane at the time of the offence (Mackay and Kearns ‘An Upturn in Unfitness to Plead?’ 545) and also the likelihood that the unfitness provision operates to capture severe species of disorder.

(92) 1991 Act, Sch 1, para 4(2). Although it has always been possible to remit a defendant to court to determine if he or she has become fit to plead, before 1982, it was Home Office policy to remit defendants for trial only in exceptional circumstances. In the decade before the passage of the 1991 Act, the Home Office altered its policy on the remission of defendants found unfit to plead. In the years since 1982, when the policy changed, nearly half of the number found unfit to plead in England and Wales have been remitted to trial. Of this group, the majority was found guilty: see D Grubin ‘Regaining Unfitness to Plead: Patients found Unfit to Plead who Return for Trial’ (1992) 2(2) Journal of Forensic Psychiatry 140, 142–5.

(93) Domestic Violence, Crime and Victims Act 2004, s 24. The 2004 Act also seems to have addressed the compatibility with Article 5(1)(e) of the Human Rights Act 1998 that arises because the court's only interest in an inquiry into unfitness is into ‘the accused's ability to engage in the proceedings, not his mental state more generally’: see R v Grant [2002] QB 1030 and D Tausz and D C Omerod ‘Fitness to Plead: Whether Defendant Found Unfit to Plead Permitted to put before Jury Defences of Lack of Intent and Provocation’ [2002] Criminal Law Review 403, 405. In connecting its reference to ‘hospital order’ to the same term in the Mental Health Act 1983, the Domestic Violence, Crime and Victims Act 2004 changed the law to provide that there must be medical evidence which justifies hospitalization if this is ordered by the court: s 24.

(94) In research commissioned for the Law Commission, Mackay found that, between 2002 and 2008, the annual average number of findings of unfitness exceeded 100 for the first time: Mackay ‘Unfitness to Plead– Data on Formal Findings from 2002 to 2008’ (Unfitness to Plead: A Consultation Paper Law Com No 197, 2010). Older research by Mackay and colleagues found that, between 1997 and 2001, there was an average of 45 findings of unfitness to plead per year: see Mackay, Mitchell and Howe ‘A Continued Upturn in Unfitness to Plead’ 530. As Mackay and colleagues suggest, this increase may be attributed to the introduction of a range of disposals for unfit defendants (532; see also Mackay and Kearns ‘An Upturn in Unfitness to Plead?’ 546).

(95) As several commentators suggest, this may be because, historically, there was little incentive to raise the issue when a successful finding of unfitness resulted in indefinite hospitalization. See, for example, P Fennell ‘The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991’ (1992) 55 Modern Law Review 547, 547; Mackay ‘The Decline of Disability in Relation to the Trial’ 88. With judges also cognizant of indefinite hospitalization, it is possible that, as Mackay has suggested, the low numbers of defendants found unfit to plead before the 1991 Act may also have been a result of courts avoiding the law on unfitness and using their powers under the Mental Health Act 1983 to remand certain mentally disordered defendants in hospital (Mackay ‘The Decline of Disability in Relation to the Trial’ 96).

(96) Mackay Mental Condition Defences 245.

(97) Committee on Insanity and Crime (‘Atkin Committee’) (Cm 2005, 1923) 9, 21.

(98) United Kingdom, Royal Commission on Capital Punishment 1949–1953 Report (Cmd Paper 8932, 1953) para 225.

(99) The Butler Committee reasoned that, in practice, expert evidence is usually adduced (Butler Report para 10.41). The Committee seemed to be motivated to make such evidence mandatory because of the weighty consequences of a finding of unfitness: under the 1964 Act, both a finding of unfitness and a successful insanity defence resulted in the indefinite hospitalization of defendants. Concerns to this effect were also evident is the decision of the European Court of Human Rights in Winterwerp v The Netherlands ((1979) 2 EHRR 387). In relation to the claim that Winterwerp's right to liberty under Article 5 of the European Convention on Human Rights was violated after he was committed to a psychiatric hospital via an emergency procedure, the European Court stated that a decision to detain people of ‘unsound mind’ should be made on ‘objective medical expertise’ and that the relevant mental disorder ‘must be of a kind or degree warranting compulsory confinement’ [39].

(100) As John Beattie suggests in relation to this period, juries would gather evidence from ‘those in court who had any dealings with the prisoner—magistrates, jailers and if there happened to be a doctor in the court he might be asked to examine the prisoner’: see Crime and the Courts in England 337.

(101) Rex v Dashwood [1943] KB 1, 4; see also Walker Crime and Insanity in England (Vol 1) 231; Criminal Law Revision Committee Criminal Procedure (Insanity) (Cmnd 2149, 1963) para 15; R v H [2003] UKHL 1, [4].

(102) D Grubin ‘Unfit to Plead in England and Wales, 1976–1988 A Survey’ (1991) 158 British Journal of Psychiatry 540, 545; B J Winnick ‘Reforming Incompetency to Stand Trial and Plead Guilty: A Restated Proposal and a Response to Professor Bonnie’ (1995) 85(3) Journal of Criminal Law and Criminology 571, 620. However, there also appear to be problems with the use of expert evidence in this context. Perhaps in part because unfitness to plead does not have the profile of the insanity defence, there seems to be some uncertainty about the criteria for a finding of unfitness: see E P Larkin and P J Collins ‘Fitness to Plead and Psychiatric Reports’ (1989) 29(1) Medicine, Science and the Law 26, 26. In their study, Larkin and Collins examined pre‐trial psychiatric reports and found that only about one third of them included a statement about unfitness to plead and supported this statement with reference to the legal criteria for such a finding (30). Similarly, Mackay and Kearns found that only a minority of pre‐trial reports they examined explicitly addressed the criteria for a finding of unfitness (‘An Upturn in Unfitness to Plead?’ 538). There also seems to be some confusion between the criteria for a finding of unfitness to plead and the ingredients of the insanity defence, with some experts in Grubin's study commenting on whether the defendant could distinguish between right and wrong: see Grubin ‘Unfit to Plead in England and Wales’ 540. As Grubin suggests, it is possible that those found unfit to plead are little different from ‘the majority of mentally disturbed defendants who come before the courts every year’ (545).

(103) Grubin ‘Unfit to Plead in England and Wales’ 548.

(104) I discuss the significance of expert evidence in this respect in relation to diminished responsibility: see Chapter 9.

(105) See further Chapter 6.

(106) See R v Habib Ghulam [2010] 1 WLR 891, 895, 897.

(107) Under the Mental Health Act 1983, magistrates can make a hospital or guardianship order where an individual has been convicted of an offence punishable with imprisonment (s 37(1)) or where a defendant has been charged with such an offence (s 37(3)); see also N Walker and S McCabe Crime and Insanity in England (Vol 2): New Solutions and New Problems (Edinburgh: Edinburgh University Press, 1973) 107. Under the Mental Health Act 1983, s 37(3) the power of magistrates’ courts over defendants who had not been convicted extended only to those who were ‘mentally ill’ or ‘severely subnormal’, meaning that defendants with communication difficulties were not covered and had to rely on the discretionary powers of magistrates to dismiss the case: see Emmins ‘Unfitness to Plead’ 611. These defendants may now be caught by the provision because the Mental Health Act 2007 has amended the 1983 Act to remove different categories of mental disorder, replacing them with one definition of mental disorder as ‘any disorder or disability of the mind’ (Mental Health Act 2007, s 1 amending Mental Health Act 1983). The Butler Committee had recommended that the power to determine unfitness be extended to magistrates courts (para 10.35).

(108) Most recently, see Law Commission Unfitness to Plead: A Consultation Paper (Law Com No 197, 2010) Chapter 8. The Law Commission identifies the problems with the approach to unfitness in magistrates’ courts and youth courts, but refrains from making particular recommendations in the Consultation Paper in advance of feedback from consultees. See also Butler Report para 10.35; and Walker and McCabe Crime and Insanity in England (Vol 2) 107.

(109) Walker and McCabe suggest that, at the end of the nineteenth century, the Home Office advocated a practice of dismissing charges against certain defendants and encouraged magistrates ‘to use their civil powers of committal to lunatic asylums’ in petty cases (Walker and McCabe Crime and Insanity in England (Vol 2) 105. The legacy of this practice is that, in the current era, magistrates cannot try an issue of unfitness to plead, nor commit it to the Crown Court for it to be tried (R v Lincoln (Kesteven) Justices, ex parte O'Connor [1983] 1 WLR 335; see also S White ‘The Criminal Procedure (Insanity and Unfitness to Plead) Act’ [1992] Criminal Law Review 4, 13).

(110) C (A Minor) v Director of Public Prosecutions [1996] AC 1, 36.

(111) This Act provided that the most serious offences committed by children were to be tried in Crown courts, by a judge and jury. The 1908 Act included special measures for children charged with murder (ss 103, 104), and similar special measures were included in the Children and Young Persons Act 1933 (s 53(1)), applying to offenders aged 14 to 17 who were charged with attempted murder, manslaughter, or wounding with intent. This provision was amended again in the Criminal Justice Act 1961 to allow children charged with offences for which the maximum period of imprisonment was 14 years or more to be tried in the Crown courts.

(112) See Bottoms and Dignan ‘Youth Justice in Great Britain’ 82–3. Under the Criminal Justice Act 1991, a child aged 12 to 14 cannot be sentenced to custody unless he or she is a ‘persistent offender’, although a custodial sentencing option is available for those aged 15 and over. For a useful overview of procedures relating to young offenders, see C Ball ‘Youth Justice? Half a Century of Responses to Youth Offending’ [2004] Criminal Law Review 28. Ball tracks the cumulative erosion in the welfare‐oriented, special treatment of young offenders over the second half of the twentieth century, realized in part on the back of the separation of criminal process from the civil process of care proceedings in the early 1990s. See L Gelsthorpe ‘Recent Changes in Youth Justice Policy in England and Wales’ in E Weijers and A Duff (eds) Punishing Juveniles: Principle and Critique (Oxford: Hart, 2002) 45–66. For a discussion of the Scottish system of Children's Hearings, see Bottoms and Dignan ‘Youth Justice in Great Britain’ 44–76.

(113) The age of criminal responsibility had been raised to eight in the Children and Young Persons Act 1933 (23 & 24 Geo.5 c.12) after the Report of the Departmental Committee on the Treatment of the Young Offender (The Molony Committee Report) (Cmd 2831, 1927). The age was raised to 10 years by Children and Young Persons Act 1963, s 16. The age of criminal responsibility in Scotland was recently raised to 12: see Criminal Procedure (Scotland) Act 1995, s 41A, as amended by Criminal Justice and Licensing (Scotland) Act 2010.

(114) See D Garland The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: OUP, 2001).

(115) It was implemented in part after a change of government. See Gelsthorpe ‘Recent Changes in Youth Justice Policy in England and Wales’ 45, 49–51.

(116) As Ashworth points out, age can only be an imperfect guide to something like maturity: see A Ashworth ‘Child Defendants and the Doctrines of Criminal Law’ in J Chalmers, F Leverick and L Farmer (eds) Essays in Criminal Law in Honour of Sir Gerald Gordon (Vol 8, Edinburgh Studies in Law, 2010) 29.

(117) C (A Minor) v DPP [1996] AC 1 [58]. This is in contrast to the way the civil rules on competency have developed: in order to empower decision‐making, rules about incompetency have been narrowly circumscribed. For a comparison of civil and criminal norms regarding the responsibility of young people, see B Lyons ‘Dying to be Responsible: Adolescence, Autonomy and Responsibility’ (2010) 30(2) Legal Studies 257.

(118) In relation to young people, the Criminal Justice Act 1982 replaced indeterminate sentences of Borstal training with determinate sentences of Youth Custody. For discussion, see C Ball ‘Young Offenders and the Youth Court’ [1992] Criminal Law Review 277.

(119) Children and Young Persons Act 1933, s 53(1). This sentence is in lieu of a life sentence, as would apply to an adult convicted of murder (Criminal Justice Act 2003, Sch 21). The case of the murder of James Bulger ushered in a change in government policy in this area. Until this point, the Home Secretary, in consultation with the trial judge and the Lord Chief Justice, had decided the tariff for adult mandatory life sentences and juveniles sentenced to ‘detention during Her Majesty's pleasure’. In the case of Thompson and Venables, and in the context of intense public concern, the tariff had been set at 15 years, with no review for 12 years. In R v Secretary of State for the Home Department, ex parte Doody (1994) 1 AC 57, the Court of Appeal upheld a Divisional Court decision requiring the Home Secretary to review regularly the period of detention of children and young people. The policy was changed and withstood a human rights challenge on the basis of Article 3 in the European Court of Human Rights: see T v The United Kingdom (Application No 24724/94); V v The United Kingdom (Application No 24888/94). For discussion, see D Haydon and P Scraton ‘“Condemn a Little More, Understand a Little Less”: The Political Context and Rights Implications of the Domestic and European Rules in the Venables‐Thompson Case’ (2000) 27(3) Journal of Law and Society 416.

(120) In addition, the scope of defences such as duress to take into account the age of the defendant represents a further way in which age acts as a protective factor in the criminal law context. For discussion, see Ashworth ‘Child Defendants and the Doctrines of Criminal Law’ 35–43.

(121) See C (A Minor) v DPP [1996] AC 1, 18. The phrase ‘seriously wrong’ was used by the Court in R v Gorrie (1918) 83 JP 136 and adopted by the Divisional Court in JM (A Minor) v Runeckles (1984) 79 Cr App R 255.

(122) R v Kershaw (1902) 18 TLR 357. In a way that echoes the justification for the reverse burden of proof in insanity, an argument that the burden of disproving knowledge of wrongness should be on the defence has been mounted by Glanville Williams on the basis that whether a child knew something was wrong was peculiarly within the child's knowledge: see G Williams ‘The Criminal Responsibility of Children’ [1954] Criminal Law Review 493, 499–500.

(123) R v Coulburn (1988) 87 Cr App R 309; A v DPP [1997] 1 Cr App R 27, 32. For discussion, see Crofts The Criminal Responsibility of Children and Young Persons.

(124) See S Bandalli ‘Abolition of the Presumption of Doli Incapax and the Criminalisation of Children’ (1998) 37(2) The Howard Journal 114.

(125) See DPP v P [2008] 1 WLR 1005.

(126) A v DPP [1997] 1 Cr App R 27, 34.

(127) L (A Minor) v DPP [1996] 2 Cr App R 501.

(128) JM (A Minor) v Runeckles (1984) 79 Cr App R 255.

(129) It is interesting to note that the significance of the actus reus of the offence with which a young person has been charged has spilled over from non-exculpatory doctrines into the sphere of criminal offences. The Sexual Offences Act 2003 provides that a person under 18 commits an offence if he does anything that would be an offence if he were aged 18 (s 13). Francis Bennion has argued that this offence rests on the mistaken assumption that only the actus reus is significant when a young person is alleged to have committed a serious offence, referring to this as a ‘defective deeming’ provision: see F Bennion ‘Mens Rea and Defendants Below the Age of Discretion’ [2009] Criminal Law Review 757.

(130) See for discussion H Keating ‘The Responsibility of Children in the Criminal Law’ [2007] Child and Family Law Quarterly 183. Keating argues that children are held to be responsible at the age of 10 to make them responsible rather than as an acknowledgment that they are responsible at this point.

(131) See J Fionda ‘Youth and Justice’, in J Fionda (ed) Legal Concepts of Childhood (Oxford: Hart, 2001).

(132) See for discussion, G Douglas ‘The Child's Right to Make Mistakes: Criminal Responsibility and the Immature Minor’ in G Douglas and L Sebba (eds) Children's Rights and Traditional Values (Aldershot: Ashgate, 1998) 264–87.

(133) C (A Minor) v DPP [1996] AC 1, 36 per Lord Lowry.

(134) See C (A Minor) v DPP [1996] AC 1.

(135) C (A Minor) v DPP [1996] AC 1, 11, referring to the judgment of Laws J in the Divisional Court in C v DPP [1994] 3 WLR 888. Both Courts drew on a critique of doli incapax mounted by Glanville Williams: G Williams ‘The Criminal Responsibility of Children’.

(136) C (A Minor) v DPP [1996] AC 1, 9 referring to the judgment of Laws J in the Divisional Court in C v DPP [1994] 3 WLR 888.

(137) See Home Office Tackling Youth Crime, Reforming Youth Justice: A Consultation Paper (London, Home Office, 1997) and Home Office No More Excuses—A New Approach to Tackling Youth Crime in England and Wales (Cmd 3809, 1997).

(138) Crime and Disorder Act 1998, s 34. Unlike earlier proposals to abolish doli incapax, such as that of the Report of the Ingleby Committee on Children and Young Persons (Cmd 1191, 1960) and the Law Commission's draft criminal code (Codification of the Criminal Law: A Report to the Law Commission (Law Com No 143, 1985)), the legislation did not hook this change to the law to an increase in the age of criminal responsibility.

(139) See JTB [2009] 2 Cr App R 500. The House of Lords decision ran against obiter comments by Smith LJ in DPP v P [2008] 1 WLR 1005 that the statute had left the defence of doli incapax in place. In JTB, the House of Lords ruled that the defence had existed separately from the presumption (contra the Court of Appeal) but reasoned that the mischief that the statutory provision was designed to remedy was such that Parliament intended to abolish both. For discussion, see T Crofts ‘Catching Up with Europe: Taking the Age of Criminal Responsibility Seriously in England’ (2000) 17(4) European Journal of Crime, Criminal Law and Criminal Justice 267.

(140) Irrespective of the age of the criminal responsibility, all defendants should have sufficient understanding to comprehend the proceedings. See T v United Kingdom (2000) 30 EHRR 121, V v United Kingdom (2000) EHRR 121, SC v United Kingdom (2004) 40 EHRR 10 and DPP v P [2008] 1 WLR 1005. In concluding that the trial of Thompson and Venables had breached the right to a fair trial under Article 6 of the Convention, the European Court of Human Rights stated that a criminal trial of a young child should be conducted ‘in such a way as to reduce as far as possible his or her feelings of intimidation and inhibition’ (T v United Kingdom (2000) 30 EHRR 121 [85]). This ruling prompted changes in Crown Court trials of children charged with serious offences: see H Keating ‘Reckless Children?’ [2007] Criminal Law Review 546. It is notable that, although the applicant in SC had been found fit to plead, the Court still found that there had been a breach of Article 6, which indicates that effective participation requires more than the cognitive capacities currently assessed via the test for unfitness.

(141) The case ushered in a raft of reforms to juvenile justice. See for discussion M Freeman ‘The James Bulger Tragedy: Childish Innocence and the Construction of Guilt’ in A McGillivray (ed) Governing Childhood (Dartmouth: Aldershot, 1997) 115–34.

(142) David Archard argues that Western philosophical approaches to children coalesce around an idea of the child as an ‘unfinished human’, defined in terms of what it lacks—rationality, freedom, and moral responsibility. But the influence of developmental psychology on social views of childhood, according to which the period of childhood is marked by distinct states that correspond to particular sets of abilities and skills, subverts any straightforward idea of an absence of adult capacities: see D Archard ‘Philosophical Perspectives on Childhood’ in J Fionda (ed) Legal Concepts of Childhood (Oxford: Hart, 2001) 43–6.

(143) In 2006, the Law Commission for England and Wales proposed a reformulated doctrine of diminished responsibility, which would have provided a partial defence where a defendant was unable to understand the nature of his or her conduct, or where he or she was unable to form a rational judgment or his or her self‐control was ‘substantially impaired by an abnormality of mental functioning arising from a recognised medical condition’, or developmental immaturity for a defendant under 18, where that abnormality or developmental immaturity ‘provides an explanation for the defendant's [homicidal] conduct’ (Murder, Manslaughter, and Infanticide (Law Com No 304, 2006) para 5.112). The part of this proposal that related to ‘developmental immaturity’ was not included in the new diminished responsibility provision contained in Coroners and Justice Act 2009, s 52, and parliamentary debate suggests that the slipperiness of a notion of ‘normal immaturity’ scuppered such a protective exclusion: see HL Deb 30 June 2009, vol 712, col 185–8.

(144) Hansard (HL), vol 658, col 1413 (11 March 2004), debating the recent changes to the way in which unfitness to plead is decided, which I discuss below.

(145) R v Egan [1998] 1 Cr App R 121, 125. As a result of this interpretation, the question of whether the defendant ‘did the act’ extended to encompass the mens rea as well as the actus reus of the offence with which the defendant had been charged. This interpretation of the phrase ‘did the act or made the omission charged’ accorded with the recommendation of the Butler Report para 10.24.

(146) Support for this position was drawn from the parliamentary debate about the Bill that became the 1991 Act. In the House of Commons, the Member for Ryedale, who proposed the Bill, stated that it would provide for the court to ‘look only at the facts of the case’, not at ‘the intentions of the accused’ (Hansard (HC), vol 186, col 1272 (1 March 1991)). According to the Member for Ryedale, ‘it would be meaningless to try to form an impression of the motives of someone, who, because of his mental condition, is unfit to plead’ (Hansard (HC), vol 186, col 1272 (1 March 1991)). The Minister of State for the Home Office, John Patten, concurred, stating that ‘it would be unrealistic and even contradictory where a person is unfit to be tried properly because of his mental state, that the trial of the facts should nevertheless have to consider that very aspect’: Hansard (HC) vol 186, col 1280 (1 March 1991).

(147) Attorney General's Reference (No 3 of 1998) [2000] QB 401, 410. This case concerned the Trial of Lunatics Act 1883 (46 & 47 Vict. c.38), s 2(1) which provided that insane defendants who ‘did the act or made the omission charged’ as an offence would be subject to a special verdict of guilty but insane. Unlike the Criminal Lunatics Act 1800, which referred to ‘offence’, the 1883 Act referred to ‘act’ and ‘omission’. This led the Court to hold that, for the purposes of a ‘trial of the facts’, the Crown need only prove that the defendant had done the actus reus of the offence—apart from insanity, the defendant's mens rea was irrelevant (at 411).

(148) R v Antoine [2001] 1 AC 340. Antoine had been charged with murder and, at trial, the defence had attempted to raise the defence of diminished responsibility. When the defendant was found unfit to plead, the trial judge held that diminished responsibility could not be raised in a ‘trial of the facts’. The House of Lords upheld the first instance decision.

(149) R v Antoine [2001] 1 AC 340, 375 per Lord Hutton.

(150) R v Antoine [2001] 1 AC 340, 375–6 per Lord Hutton. The reasoning of the House of Lords in Antoine, and the Court of Appeal in Attorney General's Reference (No 3 of 1998), precludes an unfit defendant charged with murder from relying on the defence of diminished responsibility because this defence arises only where all the elements of the offence have been made out (Antoine 368). As a result of these two decisions, the only kind of defences an unfit defendant can rely on in a ‘trial of the facts’ are defences of accident, mistake, or self‐defence. In Antoine, Lord Hutton acknowledged that even these defences ‘almost invariably involve some consideration of the mental state of the defendant’ (376). To address this ‘difficulty’, Lord Hutton stated that, where there is ‘objective evidence’ of accident, mistake, or self‐defence, ‘the jury should not find that the defendant did the “act” unless satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence’ (376).

(151) R v Grant [2002] QB 1030. The Court concluded that any consideration of provocation necessitated an examination of the defendant's state of mind, which was precluded by s 4A(2) of the 1991 Act (1048).

(152) R v Martin [2003] 2 Cr App R 322.

(153) R v Martin [2003] 2 Cr App R 322, 339, 338.

(154) R v H [2003] UKHL 1; see also R v Grant [2002] QB 1030, M (Edward) & Ors [2002] 1 Cr App R 25.

(155) R v Grant [2002] QB 1030, 1049; R v H [2003] UKHL 1 [18].

(156) R v Grant [2002] QB 1030 1049.

(157) R v B, W, S, H and W [2009] 1 Cr App R 261, 271. For a normative argument about a ‘trial of the facts’, see Duff Trials and Punishments. Duff argues that the judicial inquiry into the facts of a particular case after a finding of unfitness serves an ‘instrumental purpose—to decide what should be done with the disordered defendant’ (122). For Duff, proving that the defendant committed the offence serves ‘the evidential role of a predictor of future danger’ and ‘the justificatory role of a precondition’ for the particular disposal of the defendant (122).

(158) Law Commission Unfitness to Plead: A Consultation Paper, (Law Com No 197, 2010) para 6.128.

(159) Unfitness to Plead: A Consultation Paper para 6.130. The Law Commission recommended that, if the accused is acquitted, provision should be made for a judge to hold a further hearing (to be held at the discretion of the judge on the application of any party or the representative of any party to the proceedings) to determine whether or not the acquittal is because of mental disorder existing at the time of the offence: 6.140, 6.152.

(160) Unfitness to Plead: A Consultation Paper para 6.132–6.133.

(161) Domestic Violence, Crime and Victims Act 2004, s 22, which provided that a judge is to make determinations on the question of unfitness. If a defendant is found unfit to plead by a judge, a jury is empanelled for the purposes of a ‘trial of the facts’. Even prior to the passage of this Act, empirical studies of the role of the jury in proceedings on unfitness concluded that it was ‘somewhat formalistic’ on the basis there was usually no dispute between the prosecution and defence as to a defendant's unfitness (Mackay, Mitchell and Howe ‘A Continued Upturn in Unfitness to Plead’ 534; Mackay and Kearns ‘An Upturn in Unfitness to Plead?’ 536).

(162) Review of the Criminal Courts of England and Wales (Auld Report) (London, Home Office, 2001). The report concluded that the jury procedure for determining unfitness is cumbersome, especially if the issue of unfitness is raised on arraignment as it requires empanelling two juries: one for the ‘trial of the issue’, and one for the ‘trial of the facts’ (para 213). The Review concluded that it was ‘difficult to see’ what a jury contributed to the determination of unfitness that a judge could not also contribute (para 213).

(163) The parliamentary debates about the reform proposal reveal government concern that finding a defendant unfit to plead was a ‘very cumbersome and very complex procedure which is not necessary’ (Hansard (HL), vol 658, col 1413 (11 March 2004)). Having been questioned directly about whether the amendment was not just an attempt to ‘speed things along and tidy things up’ at the expense of public involvement in the criminal process (Hansard (HL), vol 658, col 1413 (11 March 2004)), Baroness Scotland replied that the requirement that a judge give reasons for his or her decision would make the decision about unfitness more transparent than if decided by a jury: Hansard (HL), vol 658, col 1414 (11 March 2004)).

(164) Pritchard was upheld by the Court of Criminal Appeal in R v Robertson [1968] 1 WLR 1767; M [2003] EWCA Crim 3452. Prior to the 1964 Act, the CLRC had commented that ‘what constitutes unfitness to plead is, in general, well established’ and had not recommend any changes in the criteria for unfitness to plead: Criminal Law Revision Committee, Criminal Procedure (Insanity) (Cmd 2149, 1963) Similarly, in its review, the Butler Committee had concluded that the criteria for unfitness to plead ‘work well’: para 10.3. The Committee did recommend that the reference to the ability to challenge jurors be omitted from the criteria for a finding of ‘disability in relation to trial’ (the language of the Report) and that two further criteria be added to those laid down in Pritchard—that the defendant be able to give adequate instructions to his or her legal advisors and that he or she be able to plead ‘with understanding’ to the indictment (Butler Report para 10.3)—but this reformulation did not constitute a substantive change to the common law: see Grubin ‘What Constitutes Fitness to Plead?’ 748, 754; Mackay Mental Condition Defences 244.

(165) Pritchard 304. Formally, these criteria are cumulative and each one must be satisfied for a defendant to be fit to plead: see Mackay, Mitchell and Howe ‘Yet More Facts about the Insanity Defence’ 536. In practice, however, it seems that the Pritchard criteria tend to be paraphrased, which suggests that there is in effect a composite standard for unfitness. In his direction on unfitness in Sharp (R v Sharp [1960] 1 QB 357), Justice Salmon stated that the jury must be satisfied that the defendant was ‘fit to communicate with his advisors’ and that he was able to understand the trial process (360). In Friend (R v Friend [1997] 1 WLR 1433), Lord Justice Otton referred to the Pritchard criteria and summarized them to the effect that ‘the test of unfitness is whether the defendant will be able to comprehend the course of the proceedings so as to make a proper defence’ (1441).

(166) Intellectual disability (R v Burles [1970] 2 WLR 597; R v Grant [2002] QB 1030; R v Martin [2003] 2 Cr App R 322), mental illness (R v Antoine [2001] 1 AC 340) and situations where the defendant is ‘deaf and dumb’ (R v Berry; Rex v Dyson (1831) 7 C & P 305; R v Roberts [1954] 2 QB 329) have given rise to findings of unfitness. Neither amnesia about the offence (R v Podola [1960] 1 QB 325) nor a form of hysteria (which left the defendant unable to communicate except in writing) (R v Holman (Unreported) CA, 27 April 1994) can ground a finding of unfitness to plead.

(167) As a result, delusions, mood disorders and other features common to mental illness, and potentially relevant to a defendant's understanding of the trial process, are strictly excluded from the parameters of the legal inquiry: see Grubin ‘What Constitutes Fitness to Plead?’ 753.

(168) Mackay Mental Condition Defences 245.

(169) See Law Commission Unfitness to Plead: A Consultation Paper (Law Com No 197, 2010) paras 1.15 and 3.41 for discussion. At the time of writing, the proposals have not been incorporated into legislation.

(170) Law Commission Unfitness to Plead: A Consultation Paper (Law Com No 197, 2010) paras 3.41, 3.99. The Commission's proposal draws on the Mental Capacity Act 2005 which provides that a person is unable to make a decision for him or herself if he or she is unable to understand the information relevant to the decision, retain that information, use or weigh it as part of the process of making the decision or communicate the decision (s 3(1)). The Act also provides that a person is not to be treated as unable to make a decision ‘unless all practicable steps to help him to do so have been taken without success’ (s 1(3)). Reform in the direction of the civil law standard has also been proposed by the Scottish Law Commission, which reasoned that a test of ‘effective participation’ in criminal trials would meet European Convention on Human Rights standards on a fair trial (European Convention on Human Rights 2004 para 4.30).

(171) The Commission specified that, in particular, the judge should take account of how important any disability is likely to be in the context of the decision the accused must make in the context of the trial which he or she faces (Unfitness to Plead: A Consultation Paper (Law Com No 197, 2010) para 3.101).

(172) R M Mackay, among others, had suggested that the criteria should be expanded so as to amount to a test of ‘decisional competence’, a broader notion than the current test which, as discussed above, refers to the defendant's ability to understand the trial proceedings, challenge jurors, and instruct lawyers (R D Mackay ‘Mentally Abnormal Offenders: Disposal and Criminal Responsibility Issues’ in M McConville and G Wilson (eds) The Handbook of the Criminal Justice Process (Oxford: OUP, 2002) 732; see also R D Mackay ‘On Being Insane in Jersey: Part 3—The Case of Attorney General v O'Driscoll’ [2004] Criminal Law Review 291, 292–5 and Mackay Mental Condition Defences 244–6 and Scottish Law Commission Report on Insanity and Diminished Responsibility (Edinburgh, 2004) paras 4.11–4.19.

(173) Those advocating flexibility in the criteria for unfitness hold that the meaning of unfitness to plead is dependent on the context in which the defendant finds him or herself. (Freckelton ‘Rationality and Flexibility in Assessment of Fitness to Stand Trial’ 48; Winnick ‘Reforming Incompetency to Stand Trial and Plead Guilty’ 590). The standard to be applied in determining unfitness should thus depend on the seriousness and complexity of the charges, the relationship between the defendant and his or her lawyers and the communication skills of his or her lawyers, among other factors (Freckelton ‘Rationality and Flexibility in Assessment of Fitness to Stand Trial’ 48). Winnick labels this a ‘sliding‐scale approach to competency’ (‘Reforming Incompetency to Stand Trial and Plead Guilty’ 592).

(174) Law Commission Unfitness to Plead: A Consultation Paper (Law Com No 197, 2010) para 3.57. It has long been clear that the legal question of a defendant's fitness to plead does not correspond to his or her ability to act in his or her own best interests (R v Robertson [1968] 1 WLR 1767; R v M [2003] EWCA Crim 3452). In Robertson, the Court of Appeal allowed an appeal from a murder trial where a defendant, who was representing himself, was found unfit. The Court of Appeal concluded that, as the trial judge had directed the jury with reference to the defendant's ability to make a ‘proper’ defence, the jury may have erroneously thought that a defendant who could not act in his or her best interests was unfit (1773).

(175) Law Commission Unfitness to Plead: A Consultation Paper (Law Com No 197, 2010) para 3.37.

(176) Unfitness to Plead: A Consultation Paper para 3.42.

(177) Unfitness to Plead: A Consultation Paper para 2.105. See also T P Rogers et al ‘Fitness to Plead and Competence to Stand Trial: a Systematic Review of the Constructs and their Application’ (2008) 19(4) Journal of Forensic Psychiatry and Psychology 576.

(178) Law Commission Unfitness to Plead: A Consultation Paper paras 4.27 and 4.25.

(179) See Moyle v R [2008] EWCA Crim 3059 [38]. The Court stated that delusions—as to the Court's powers of sentence, its objectivity, and the evil influences thought to be present in the proceedings—did not necessarily require a finding that the person is unable to give instructions and to understand the proceedings [38].