Criminal litigation

Section 37(3) of the Mental Health Act 1983 provides the magistrates’ court with the power, in an appropriate case, to abstain from either convicting or acquitting, but instead to make a hospital order. There is no entitlement to a trial; rather, the interests of justice and of the accused have to be considered. If it is clear that no s 37(3) order is going to be possible on the medical evidence whatever happened then, in the absence of some other compelling factor, the case has to proceed to trial. 

Before embarking on a case in which s 37(3) might be applied, the court should make it clear that it is a possibility and should invite submissions upon the course to be adopted. In particular, careful consideration should be given to any reason advanced as to why the issue of insanity should be tried. Such an application should be resolved having regard to the interests of justice, which include, but are not limited to, justice to the accused.