Psychiatric evidence and mandatory disposal: Article 5 compliance?

Abstract

This Article considers the position of defendants charged with murder who are found to be unfit to plead or insane at the time of the offence. If the court is satisfied that the defendant did the act charged as murder then the judge has no option but to impose a hospital order with restrictions. This Article examines the statutory requirements for medical evidence prior to a finding of unfitness or insanity and asks whether this satisfies the requirements of Article 5 of the European Convention on Human Rights. It concludes that there is no obvious justification for requiring defendants to be sent to hospital in the absence of a conviction where the medical evidence does not indicate that such a disposal is necessary. It follows that the current practice is likely to violate the Convention.