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Roger Pearson reports on defendants' rights to a claim of diminished responsibility once they have been ruled unfit to plead.
The right of defendants in criminal proceedings to mount a defence of diminished responsibility after it has already been held that they are unfit to plead is to be probed by the House of Lords.
The case is one which will call for examination of the provisions of the Criminal Procedure (Insanity) Act 1964, the Homicide Act 1957 and the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.
Lords Nicholls, Hope and Millett have given leave for Pierre Harrison Antoine to appeal against a judge's refusal to allow him to plead diminished responsibility.
Antoine was made the subject of an unlimited hospital order after a jury found he had been responsible for the death of a 15-year-old South London boy. The killing was said to have been carried out as a sacrifice to the devil.
Antoine and another man appeared at Inner London Crown Court in March 1997 charged with murder and manslaughter.
The other defendant pleaded not guilty to murder but guilty to manslaughter on grounds of diminished responsibility.
Antoine, however, was found unfit to plead because of a mental disability, and in those circumstances, unfit to stand trial.
However, the court then went on to decide whether Antoine had actually committed the murder.
It was in the course of that process that Antoine's counsel claimed that although he had been found unfit to plead, he could still mount a defence of diminished responsibility.
But the judge, in a decision upheld by the Court of Appeal in April last year, ruled that under the provisions of Section 2 of the Homicide Act, the defence of diminished responsibility was not open after a finding that the defendant was unfit to plead.
The Court of Appeal held that unfitness to plead differed from insanity in that it related to the mental capacity of a person at the time of trial, and not at the time of the alleged offence.
It is that decision which is now to be challenged.