HOC 24/2005 The Domestic Violence, Crime and Victims Act 2004

These were previously detailed in the Criminal Procedure (Insanity) Act 1964, as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. This Circular, subtitled Provisions for unfitness to plead and insanity, sets out the principal changes and offers guidance on the operation of the revised procedures, as summarised below.

Firstly, the issue of whether a defendant is fit to plead is now determined by the judge rather than the jury. However, where it is decided that the accused is unfit to be tried, the jury will still determine the question of whether he did the act or omission charged against him.
Secondly, the court will have a new range of disposals when it has made a finding of unfitness to plead or not guilty by reason of insanity. These are:

u Hospital order (with or without a restriction order).

u Supervision order.

u Order for the absolute discharge of the accused

Hospital Orders

The 2004 Act makes a number of alterations to the Mental Health Act 1983 in relation to hospital orders:

u The Secretary of State will no longer have a role in deciding whether or not the defendant is admitted to hospital; this will be a matter for the court.

u The court can no longer order a defendant’s admission to hospital without medical evidence that justifies his detention.

u Under the 2004 Act the court can require a hospital to admit a person found unfit to plead or not guilty by reason of insanity.

u The court will have the power to remand an accused person to hospital for a report or treatment and to make an interim hospital order whilst it is considering which disposal order would be most appropriate.

u The Secretary of State is allowed to remit for trial a person who was found unfit to plead, while he remains detained in hospital under a hospital order with a restriction order. The Secretary of State must consult with the responsible medical officer and will seek his/her opinion as to whether the person can be properly tried.

Supervision Orders
These are designed to enable support and treatment to be given to the defendant to prevent recurrence of the problem which led to the offending. The changes made by the 2004 Act in relation to supervision orders include:
u The supervision order will replace the supervision and treatment order
(1991 Act).
u It will enable treatment to be given under supervision for physical as well as mental disorder.
u The order cannot include a requirement for a person to receive treatment as an inpatient without his consent.
u There is no sanction for the breach of a supervision order.

Absolute Discharge
The 2004 Act applies the provision on absolute discharge in S12 Powers of Criminal Courts (Sentencing) Act 2000 to a case where a defendant is given an absolute discharge following a finding of unfitness to plead or insanity.

Thirdly, where the Court of Appeal has substituted a finding of insanity or unfitness to plead for another finding, it now has at its disposal the orders available to the Crown Court. In addition, the Court of Appeal’s power to order admission to hospital where there is medical evidence that the person is mentally disordered has been removed, and a right of appeal to the Court of Appeal is available against a supervision order or hospital order, and the Court of Appeal has the power to quash the order or amend it in any way available to the court.
The new provisions came into force on March 31, 2005 and will apply to those defendants arraigned on or after that date. All persons arraigned before that date will be covered by the Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.
The Circular can be found at www.circulars.homeoffice.gov.uk