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Report No. 35

Topic Number 52

Medical Examination of the accused

997. Medical Examination of the accused.-

The topic of medical examination of the accused in a capital case, which was considered by the Royal Commission1, may be dealt with, as it is of interest to our country also. The importance of ensuring full and reliable information about the mental state of an accused charged with murder, need not be emphasised. The existing provisions of the law may be referred to in this respect.

Under the Code of Criminal Procedure2, if any person committed for trial before a Court of Session or a High Court appears to the court at the trial to be of "unsound mind and consequently incapable of making his defence", the jury or the court shall, in the first instance, try the fact of such unsoundness and incapacity; and if the jury or the court is satisfied of the fact, the Judge shall record a finding to that effect and shall adjourn further proceedings in the case. If such person is found to be of unsound mind and incapable of making his defence, then, under the same Code3, he can be released on security being given, etc., or may be ordered to be detained in safe custody.

1. R.C. Report, p. 145, et seq and Appendix 9, p. 416 et seq.

2. Section 465, Code of Criminal Procedure, 1898.

3. Section 466, Code of Criminal Procedure, 1898.

998. Now, it will be noted that these provisions are dependent upon it "appearing to the court" that the accused1 is of unsound mind, etc. There is no automatic examination of the mental state of the accused. The Royal Commission2 recommended that every person charged with murder should be specially examined as to his state of mind by two doctors, of whom one at least should be a psychiatrist of standing who is not a member of the Prison medical service, and the other usually an experienced member of that service.

In making this recommendation, the Royal Commission had two objects, first, to recognise the fact that where a person is charged for a crime for which the fixed penalty is death, it is the duty of the State to obtain the best advice on his mental condition as a guide to the conduct of the case; and secondly, to ensure that the evidence presented on the point by the State, should have the weight that can be given only by authorities of "the highest skill, fullest experience and manifest impartiality".

1. Section 466, Code of Criminal Procedure, 1898.

2. R.C. Report, p. 145, para. 422.

999. In this connection, mention may also be made of what is known as the Brigg's Law, enacted in the State of Massachusetts, under which an accused charged with a capital offence (as well as an accused indicted for any other offence more than once or previously convicted of felony), must be examined, by experts appointed by the State Department of Mental Health1.

1. R.C. Report, p. 148, para. 426, contains a detailed discussion.

1000. Provisions on the subject exist in the laws of certain other States of the United States of America, and also in certain countries of the Continent also1.

1. See detailed discussion in R.C. Report, pp. 416 to 424, paras. 17-20.

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