The prosecutor appealed a grant of a stay of a prosecution of the 13 year old defendant as an abuse of process. Reports had indicated that he was unfit to plead. The prosecution contended that, if the court thought P ought not to face trial by reason of his disability, it should proceed to decide whether he had done the acts alleged and, if satisfied that he had, should then consider medical evidence and all the circumstances of the case before deciding whether an order under section 37(2) of the Mental Health Act was appropriate.
Held: Though the prosecutor’s appeal succeeded, the matter should not be remitted because of the delay. The were two separate questions; whether the defendant was able to understand and plead to the charge against him, and whether he would be able to take an effective part in the trial. It was for the court to decide this, not the doctors: ‘the medical evidence should be considered as part of the evidence in the case and not as the sole evidence on a freestanding application.’ That another court may have decided that a defendant was doli incapax did not prevent a later court taking a case forward. It had to decide the matter afresh. The power and duty to consider this was a continuing one throughout the trial. Obiter, section 34 has not abolished the doctrine of doli incapax, the presumption of incapacity for a child over 10. The change ruled out the presumption of incapacity, not the ability of a court to apply the doctrine where appropriate: ‘it must be the presumption that has been abolished.’
Smith LJ, Gross J
[2007] EWHC 946 (Admin), [2007] 4 All ER 628, [2008] 1 WLR 1005
Bailii
Powers of Criminal Courts (Sentencing) Act 2000 11(2), Mental Health Act 1983 37(3), Crime and Disorder Act 1998 34
England and Wales
Citing:
Cited – Regina (P) v Barking Magistrates Court Admn 2002
P, a 16 year old boy with learning difficulties faced charges. A psychologist said his IQ was so low (52) that P would not be able to understand or reply rationally to the charges. The justices decided that he was fit to plead; they had formed a . .
Cited – Rex v Pritchard 21-Mar-1836
A person, deaf and dumb, was to be tried for a capital felony the Judge ordered a Jury to be impanneled, to try whether he was mute by the visitation of God, the jury found that he was so. The jury were then sworn to try whether he was able to . .
Cited – TP, Regina (on the Application of) v West London Youth Court and others Admn 21-Nov-2005
It had been submitted to the youth court that a boy of 15, with the intellectual capacity of an 8 year old, ought not to face trial. The district judge decided that the trial should proceed and the defendant sought judicial review.
Held: The . .
Cited – SC v United Kingdon ECHR 2004
SC when aged 11 was charged with attempted robbery. He had previous convictions, and was committed to the crown court for trial. He applied to stay the proceedings as an abuse of process on account of limited intellectual capacity, and inability . .
Cited – White, Regina (on the Application of) v the Justices of Barking Magistrates’ Court Admn 25-Feb-2004
A court was correct to refuse to enforce an expectation which was assumed to be otherwise legitimate on the basis that a sentence passed in accordance with that expectation would have been outside the range available to the sentencing court and . .
Cited – White, Regina (on the Application of) v the Justices of Barking Magistrates’ Court Admn 25-Feb-2004
A court was correct to refuse to enforce an expectation which was assumed to be otherwise legitimate on the basis that a sentence passed in accordance with that expectation would have been outside the range available to the sentencing court and . .
Cited – Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
Cited by:
Cited – Regina v T CACD 16-Apr-2008
The twelve year old defendant had pleaded guilty to several allegations of sexual assault. The judge had ruled that it was not open to him to plead doli incapax. He appealed saying that only the presumption of doli incapax had been abolished, and . .
Cited – JTB, Regina v HL 29-Apr-2009
The defendant appealed against his convictions for sexual assaults. He was aged twelve at the time of the offences, but had been prevented from arguing that he had not known that what he was doing was wrong. The House was asked whether the effect of . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Crime
Leading Case
Updated: 11 November 2021; Ref: scu.251535