Unfitness to plead: Powers of the court on a finding that the...

Unfitness to plead: Powers of the court on a finding that the accused did the acts charged


Where an accused has been found by a jury to have done the acts (or made the omission) charged, the court has limited powers as to how the individual can be dealt with.

The first thing to note is that this is not a sentencing hearing. The individual has not been convicted of a criminal offence as, upon a finding of unfitness to plead, the resulting trial of the facts lacks the necessary finding as to the “mental element” of the offence.


The powers of the court are governed by the Criminal Procedure (Insanity) Act 1964 s.5:

Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.

s.5(1) – this section applies where–

(a) a special verdict is returned that the accused is not guilty by reason of insanity; or

(b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.

s.5(2) – the court shall make in respect of the accused–

(a) a hospital order (with or without a restriction order);

(b) a supervision order; or

(c) an order for his absolute discharge.

s.5(3) – where–

(a) the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and

(b) the court have power to make a hospital order,

the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

The court may impose:

a) a hospital order (with or without a restriction order)

A hospital order involves the individual being taken to a hospital for treatment for their mental disorder. A restriction order may be made in addition to a hospital order where the individual poses a risk if he were to be released and it is necessary for the protection of the public that he remain in detention.

b) a supervision order

A supervision order means an order which requires the “the supervised person” to be under the supervision of a social worker, an officer of a local probation board or an officer of a provider of probation services (“the supervising officer”) for a period specified in the order of not more than two years. A supervision order may not be made unless the court considers it is the most suitable method of dealing with the individual.

c) an absolute discharge

An absolute discharge is imposed when “it is inexpedient to inflict punishment“. The order ends immediately and there are no repercussions.


The individual may appeal against the making of a supervision order or a hospital order under s.5. The appeal lies to the Court of Appeal.

The Court of Appeal has the power to impose any order that the court below had the power to make, i.e. the list of three orders under s.5 above.