Callum Anderson, Partner & Solicitor Advocate with Levy and McRae, explains the term Examination of the Facts.

Where a court has deemed that an accused is unfit to stand trial, an examination of facts will occur.

This is a procedure where evidence is led in before a judge sitting without jury.

The Crown and the defence will have an opportunity to lead evidence and the defence has a duty to test the Crown case during this process.

There is no formal verdict at the conclusion of the evidence and submissions.

The judge makes findings in facts based on the evidence that has been heard and accepted by him.

If, the judge concludes that the acts of the accused would have constituted a crime if he had been fit to stand trial, the judge will be required to make a finding on the mental state of the accused at the time of the offence.

Regardless of the judge's finding on the accused's mental state at the time of the offence, the judge will make an order detaining the accused in hospital.

If the judge finds that the accused did not act in a manner which would constitute a crime, the judge will either liberate the accused or remit him to a hospital for up seven days.

If remitted to hospital, there is an opportunity for the accused to be examined and procedures initiated under mental health legislation which could lead to the accused being compelled to remain in hospital for treatment.