AG v O’Driscoll

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Deputy Bailiff
• Judgment Date: 20 November 2003
• Neutral Citation: [2003] JRC 212A
• Date: 20 November 2003

[2003] JRC 212A

ROYAL COURT

(Samedi Division)

Before:

M. C. St. J. Birt, Esq., Deputy Bailiff; and Jurats de Veulle, Quérée, Le Brocq, Tibbo, Allo, King.

Between

Attorney General

Plaintiff

and

Neil Liam O'Driscoll

Defendant

Advocate C.M. Fogarty for the Attorney General;

Advocate P.D. James for the Defendant.

Authorities.

Criminal Justice (Insane Persons) (Jersey) Law 1964: Article 1(3).

AG v O'Driscoll [2003] JRC 117.

R v Robertson (1968) 1 WLR 1767.

R v Padola (1960) 1 QB 325.

The Superior Number, convened under Article 1(3) of the Criminal Justice (Insane Persons) (Jersey) Law 1964, to decide whether the defendant is “so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial.

Deputy Bailiff

THE

1 The Superior Number has been convened in order to hold a hearing pursuant to Article 1(3) of the Criminal Justice (Insane Persons) (Jersey) Law 1964. The purpose of the hearing is to decide whether the defendant is, to use the wording of Article 1(3) “so insane as to be unfit to plead to the accusation or unable to understand the nature of the trial”. I propose to refer to the issue simply as being one of fitness to plead.

2 The test for deciding whether an accused is fit to plead has recently been authoritatively determined in Jersey for the first time at an earlier hearing in relation to this defendant (see AG v O'Driscoll [2003] JRC 117. The Bailiff established a test which took account of the jurisprudence under the European Convention of Human Rights and which is not the same as that which applies under English law.

3 In the course of his judgment the Bailiff said this at paragraph 30:-

“A number of points arise from that test. First, the presumption of sanity remains. If an issue as to unfitness to plead is raised by the defence, the burden is on the defence to satisfy the Superior Number on a balance of probabilities that the accused does not have the capacity to participate effectively in the proceedings. If the issue of unfitness to plead is raised by the Crown, the burden is on the Crown to satisfy the Superior Number beyond reasonable doubt. I am conscious that these rather bold statements do not address serious issues as to whether the burden is a legal or an evidential burden, nor the appropriate standard if the matter is initially raised by the Court. However, I have heard no argument on these issues and they may be left over for another day. The above statements as to where the burden lies and what is the relevant standard appear to be in conformity with the position at English law; see R v Friend (1997) 2 All ER 1011 at 1018–9 per Otton LJ.”

4 The relevant English authorities establishing the position described in R v Friend (1997) 2 All ER 1011 would appear to be R v Robertson (1968) 1 WLR 1767 (which held that, where the prosecution raises the issue, the standard of proof is the ordinary criminal one of proving the issue beyond reasonable doubt; however it is clear from the judgment that this conclusion was reached without argument because prosecuting and defence counsel...