Unfitness to Plead Consultation Responses - Law Commission ...

Question 1:
Do consultees agree that we should aim to construct a scheme which allows courts
to operate a continuum whereby those accused who do not have decision-making
capacity will be subject to the section 4A hearing and those defendants with decisionmaking
capacity should be subject to a trial with or without special measures
depending on the level of assistance which they need?
This question refers to Paragraph 4.27 & Provisional Proposal 5
Paragraph 4.27:
However, taking account of the availability of special measures as part of the
decision making capacity test will not remove the possibility of an accused being
found to lack decision-making capacity. There will always be accused who are not
going to be susceptible to the assistance which can be offered by way of special
measures. It is these accused who would be subject to a reformed section 4A
hearing.
Provisional Proposal 5:
Decision-making capacity should be assessed with a view to ascertaining whether an
accused could undergo a trial or plead guilty with the assistance of special measures
and where any other reasonable adjustments have been made.
Response
It was felt that There is a clear continuum among defendants with regard to all the
elements of mental and cognitive competence required to engage meaningfully with
a trial. Pritchard criteria, are not able to allow for this variation. However the new
proposals may help with this issue.
Regarding special measures, it was felt to be already known to happen. Slowing
down the pace of the trial, multiple breaks, appropriate adult to help explain things to
them were suggested but this would need to be assessed on an individual basis.
Video links may have the advantage of allowing (when required) psychotropic
medication to be administered to improve concentration or reduce distress for
example if they suffer with a psychotic illness or anxiety disorder.
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