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Lord Thomas of Gresford: My Lords, we support Amendment No. 12A. The essential thing to realise about these issues of fitness to plead is that if a person is unfit to plead he is detained during Her Majesty's pleasure. Therefore, it is a matter of very considerable importance. Such people will be detained for a lengthy, indeterminate period of time. They will be regarded as people who have not been completely cleared of the offence with which they are charged. It is a very unfortunate position for them to be in. That is why we support this amendment.
Lord Donaldson of Lymington: My Lords, there is one slight snag with Amendment No. 12B in the name of the noble Baroness, Lady Anelay. Proposed new subsection (4A) states:
I came across this in the late 1960s; it is the only time that I ever have met it. In the particular circumstances the prison officer had decided that the accused was perfectly fit to plead and had so certified. Originally no one raised any question about that until at a fairly late stage the accused went into the witness box. At that stage he said, alternately, "I did not do it" and "Of course, I did it". It seemed to be self-evident that he was not fit to plead. He was not putting on an act; he was quite genuine to that extent.
I turned to counsel for the defendant and asked whether he agreed that his client was unfit to plead. The counsel is a distinguished Member of this House. I cannot remember his name but it does not matter. He rightly said, in effect, "Don't be silly. If he is unfit to plead, he cannot give me any instructions as to whether he is fit to plead and so I really cannot enter into this at all", and he did not, although I believe it was clear that privately he thought that was all right.
That raised another point which is very helpfully dealt with—and I think rightly dealt with—in subsection (5) of the Government's amendment. In the peculiar circumstances to which I referred the accused's clear unfitness to plead emerged only during the course of the trial. There was, I am bound to say, a slight problem with the prison medical officer. The prosecution assured me that if we had a short adjournment he felt sure that the prison officer would change his mind, which he did. I was then faced with the problem of whether to empanel another jury to decide the question. That seemed to me to be daft. I do not think that it is referred to in any law on the subject. The question arises, if you have the same jury, do you really have to go through the charade of giving the evidence all over again? It seemed to me that that was nonsense. Therefore, I directed the jury that it was fully entitled to take account of the evidence that it had heard in a different capacity and the man was quite rightly found unfit to plead.
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Subsection (5) of the new clause proposed by the Government is right. There are real problems in amendments that depend on neither party challenging, for reasons that I have given.
Baroness Scotland of Asthal: My Lords, I respectfully agree with the noble and learned Lord, Lord Donaldson. The judiciary generally shares the view that the new clause would be helpful. It may be right to remind the House what Lord Justice Auld said about the issue. He found that: first, the jury's role in the majority of unfitness decisions was little more than a formality; secondly, the procedure is cumbersome because it often requires the empanelling of two juries; thirdly, the jury can bring nothing to the finding that a judge cannot; and fourthly, he takes equivalent decisions about whether there should be a trial and whether a defendant is physically fit to stand in applications to stay the prosecution or discharge the defendant, very much as the noble and learned Lord gave us a clear example of.
Lord Justice Auld also suggested that the consequences of a finding of unfitness were more flexible since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, including absolute discharge, and that the jury should be left to determine whether the defendant committed the act. I hope that noble Lords will not think that those points were not well made because he was succinct and precise to the point. Verbosity was never an ill from which he has suffered. He is right on the matter.
The noble Baroness made a point about the 10 per cent. For those who may be, as the noble Lord, Lord Thomas of Gresford, so clearly says, detained at Her Majesty's pleasure for a lengthy and indeterminate time, it is more important to get a reasoned decision on why they are to be so detained and why they are found to be unfit to plead. Although the jury can come to that decision, it is not obliged to give reasons for having come to it; in fact, it cannot. When it comes to either appealing or reviewing a jury's decision, there is not the wherewithal to know the basis on which it came to it. That is why we think it better if the judge is charged with that task, as he can bring the acuity, knowledge and skill that is sometimes needed when there is a contest between two difficult and contentious medical opinions. He can give a reasoned decision on why he may prefer the advice of one to the other.
In terms of the interests of those who are particularly vulnerable, we think the new clause a safeguard that is merited. Lord Justice Auld was right to say that the matter should be addressed. Given my further explanation and the assistance of the noble and learned Lord, I ask the noble Baroness not to press her amendment.
Baroness Anelay of St Johns: My Lords, I shall try to be as succinct as Lord Justice Auld, whose very weighty tome certainly did not suffer for its length. His acuity showed that it could have been even longer had it been written by someone else.
Even when the drafting of my amendments is holed below the water by the noble and learned Lord, Lord Donaldson, I sometimes have the temerity to plough
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ahead. This is one such occasion. I am extremely grateful to the Public Bill Office for the assistance that it gave me in drafting the amendment. It had to be somewhat rushed at the last moment, and it achieved a miracle in producing the amendment, subject to the directions that I gave; I am sure that they were rather vague.
The amendment fulfils my commitment to Mind to raise the issue today and put it to the test if there were not a satisfactory answer from the Government on the points raised. I shall not test the patience of the House by going through those arguments again, but I wish to test the opinion of the House when we reach Amendment No. 12B.
Baroness Scotland of Asthal: My Lords, I just wanted to clarify matters, because the noble Lord, Lord Thomas of Gresford, suggested that an individual could be detained at Her Majesty's pleasure for an indeterminate period. I should make it plain, and I hope that the noble Lord was intending this, that unfitness to plead cannot lead to indefinite detention in hospital. It can lead only to a trial of the facts by the jury; and only if a jury finds the defendant did the act, as charged, can he be ordered to be detained in hospital—and then only if he meets the conditions for detention on the grounds for his mental disorder, subject to the full safeguards of the Mental Health Act 1983, including immediate right to hearing by the Mental Health Review Tribunal, which can discharge him. That is the process that would have to be undergone. I felt that I should make that clear. I have said that before, but putting the two together might have caused some confusion.
Baroness Anelay of St Johns: My Lords, so that we are clear—I shall now seek to withdraw the amendment to the Motion, but give notice that I shall seek to move Amendment No. 12B. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns rose to move, as an amendment to Commons Amendment No. 12, Amendment No. 12B:
12B Leave out lines 4 to 13 and insert—
"( ) In section 4 (finding of unfitness to plead), after subsection (4) insert—
"(4A) Where there is no challenge by either party regarding the question of fitness to be tried the question shall be determined by the court without a jury.".
( ) In subsection (5) (question of fitness to be determined by a jury), for the words "The question of fitness to be tried" substitute "In all other cases the question".
( ) In subsection (6), for "A jury shall not make a determination under subsection (5)" substitute "The court or a jury shall not make a determination under subsection (4A) or (5)".
( ) In section 4A (finding that the accused did the act or omission charged against him), in subsection (1), for "section 4(5) above it is determined by" substitute "section 4(4A) or (5) above it is determined by the court or".
( ) In subsection (5)(a), after "was determined" insert "by a jury".
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( ) In subsection (5)(b), after "was determined" insert "by a jury"."
The noble Baroness said: My Lords, I have spoken to the amendment already and I beg to move.
Moved, as an amendment to Amendment No. 12, Amendment No. 12B.—(Baroness Anelay of St Johns.)
On Question, Whether the said amendment (No. 12B), as an amendment to Commons Amendment No. 12, shall be agreed to?
Their Lordships divided: Contents, 76; Not-Contents, 95.
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