Unfitness to Plead Consultation Responses - Law Commission ...

From: Lorna Duggan
Sent: 24 January 2011 06:51
To: LAWCOM Criminal Law
Subject: Consultation on Fitness to plead
A well thought out and comprehensive piece of work. My comments are from the
perspective of a 12 years' experience as a Consultant Forensic Psychiatrist in
Developmental Disabilities working in the independent sector in medium and low
security (both adults and children). I have been instructed by both the prosecution
and the defence (once by the trial judge) with the defence raising the issue in approx
>95% of cases. Defence solicitors are generally very accurate in identifying
defendants who are unfit to plead.
In many cases the legal professionals appear unsure of the process to be followed and
I have advised the court. Clearly, an uncomfortable position. In addition, some
psychiatrists are unsure of the Pritchard criteria and what they mean eg guilty means
you've done it and not guilty means you didn't, rather than a more sophisticated
answer. This becomes apparent when the Judge hears the issue, however, in many
cases the issue may not be raised because of erroneous conclusions of the psychiatrist
instructed by the defence. The seriousness of the consequences are clear.
From my experience of special measures in youth courts a proportion of children are
put through the trial process when they cannot effectively participate and there is a
presumption that this is OK. I am concerned that for a group of defendants whatever
is done the person cannot effectively participate in their trial - the concepts are just
too complicated. As Einstein is quoted as saying "Everything should be made as
simple as possible, but not simpler"
Regarding the proposals
LIST OF PROVISIONAL PROPOSALS AND
QUESTIONS
PROVISIONAL PROPOSALS
9.1 We provisionally propose that:
(1) The current Pritchard test should be replaced and there should be a new
legal test which assesses whether the accused has decision-making
capacity for trial. This test should take into account all the requirements