Unfitness to Plead, Insanity and the Mental Element in Crime

Abstract

Whenever a person is found to be unfit to plead at the time of his or her trial, a jury must determine whether s/he “did the act or made the omission charged as the offence”. Similarly, when a court decides that a person was insane at the time of an offence being committed, part of the jury’s task is to determine whether s/he “did the act or made the omission charged”. In either case, if the jury is not so satisfied then it must return a verdict of acquittal. An issue that has caused the courts some considerable concern recently is the extent to which, if any, the mental element of the crime is relevant to the question of whether the accused “did the act”. This article reviews the existing authority and concludes that, although the courts have imposed a uniform test and may thus be said to have achieved consistency between the two situations, this may result in considerable injustice in some cases.