Unfitness to Plead Consultation Responses - Law Commission ...

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From: Ernest Gralton Sent: 14 December 2010 14:43 To: Subject: Dr Gralton Dear RE: Feedback on Unfitness to Plead Consultation Paper No 197 Thank you for sending me a copy of this extremely comprehensive and well written document. I am in agreement that a unitary approach is preferable to a disaggregated one- as having to assess an individual and take into account the potential complexity of the evidence for every trial would be extremely problematic. The adolescents that I tend to see have a variety of co-morbid disorders- that is to say that they have combination of a variety of mental and developmental disorders like ADHD and Autism (with sensory sensitivities), learning disabilities & mental illness, that in themselves may be relatively modest, but taken together can produce much more significant impairment. A new test would I hope take into account situations where there may be multiple factors that are going to affect an individual’s overall ability to engage in the legal process -a gestalt view. Ernest Gralton Consultant Forensic Psychiatrist in Adolescent Developmental Disabilities St Andrew's Healthcare Billing Road, Northampton, NN1 5DG T: F: E: W: www.stah.org
From: Don Grubin Sent: 06 January 2011 20:53 To: Cc: LAWCOM Criminal Law Subject: Unfit to plead Dear Many thanks for sending the Law Commission consultation paper on unfitness to plead. In your cover letter of 27 October you invited a direct response, and I am taking you up on this; I of course had some advance notice of what was going to be proposed through the working party. I have included these comments, amongst others, as part of my contribution to the Forensic Faculty (of which I am a member) of the Royal College of Psychiatrists response, so you may or may not see them again through that avenue, depending on whether others agree with me. Overall I am supportive of the proposals, and I agree that a capacity based approach is the right way forward. I think you have done an excellent job in dealing with a range of contentious issues - even those like me who believe there should be different thresholds for those who want to plead guilty can be satisfied. I do, however, have a couple of small points, and one more significant one. In terms of the latter, I am uncomfortable with Proposal 7 regarding the use of a 'psychiatric test' to assess decision making capacity. My view is that this gives an illusion of scientific validity because there is no objective anchor on which to base the test - how do you decide if the test has got it right, and who decides? Evaluations under the Mental Capacity Act do not make use of any such test, and I don't believe that the case has been made in Section 5 that fitness assessments are any different in nature. The fact that some psychiatrists who don't understand what they are doing base their fitness recommendations on problematic grounds (Paragraphs 5.8 to 5.12; I found some much more humorous ones in my 1980s research) means that more care needs to be taken in the choice of expert, and experts should be reminded of the criteria they are assessing on. Misuse of tests in other areas (for example, suggestibility) shows that having a test doesn't necessarily improve assessments. In my view assessors should be free to use a test should they want to do so, but there shouldn't be an expectation that they will. Capacity in respect of fitness to plead, like Diminished Responsibility, does not lend itself well to a standardised test. The other, smaller points, I have are: No reference is made to a default position. In the Mental Capacity Act the starting point that individuals have capacity. I believe the same should be true of fitness to plead. It is not made explicit what the standard of 'proof' should be, although it is probably implicit from the paper that it is 'on balance'. I am uncomfortable with how difficult it is for cases to come back to court. In my research the number of cases returned for trial increased five fold when Leon Brittan,
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Unfitness to Plead Consultation Res
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CONSULTEES, LISTED ALPHABETICALLY A
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Sarkar, Sameer Searle, Geoff Sense
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o The UN Committee on the Rights of
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Rethinking the Criminal Responsibil
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asic competencies of young people a
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parliament to consider rather than
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preventing crime. Graham and Bowlin
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other areas of the law’ and this
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absolute minimum age of criminal re
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The views of the judiciary in the U
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all children who are alleged to hav
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39 Trevor Jones‘Public Opinion, P
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Charity No 1137430 Company No 60065
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Charity No 1137430 Company No 60065
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From: Bickle Andrew Sent: 10 Januar
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Comments on “Unfitness to Plead,
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8. It would be very easy to insert
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himself at trial. The Court did not
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-----Original Message----- From: Br
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Response The Society welcomes the o
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for the task in hand. This would ap
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1. Introduction “UNFITNESS TO PLE
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On the other hand, the so-called co
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The Law Commissioners, Steel House,
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Law Commission consultation on unfi
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could possibly mean that they take
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whether present at the time of the
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disposals. We consider that the ref
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difficulties may or may not be fit
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profession to treatment, the civil
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of the decision the accused must ma
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25. We consider that Provisional Pr
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Provisional Proposal 5: Decision-ma
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giving evidence, it is unlikely tha
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Provisional Proposal 7: A defined p
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42. The difficulty lies in that the
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envisages that there could be an ac
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Reply 50. We consider we have alrea
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Question 6: Are there circumstances
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uilds upon the disposal of the case
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determination of jurisdiction as ap
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Page 103 and 104: for meaningful participation in the
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Page 107 and 108: (13) In the event of a referral bac
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Page 114 and 115: Question 1: Do consultees agree tha
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Page 142 and 143: Provisional Proposals 6 and 7 There
Page 144 and 145: Dear David, HHJ Wendy R. Joseph QC
Page 146 and 147: I totally agree that the test must
Page 148 and 149: Just for Kids Law: Response to the
Page 150 and 151: We agree with this approach for a r
Page 152 and 153: Provisional Proposal 6: Where a def
Page 154 and 155: Article 6 protection would also giv
Page 156 and 157: Question 6: Are there circumstances
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Page 160 and 161: Appendix One GRISSO CRITERIA Thomas
Page 162 and 163: Justices’ Clerks’ Society Law C
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Page 170 and 171: Response to the Law Commission Cons
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Page 174 and 175: However it is where these two areas
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Page 180 and 181: Whilst this is a submission in rela
Page 182 and 183: SECTION 1 : KC RESPONSE TO PROVISIO
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Provisional Proposal 5: Decision-ma
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that the defendant’s capacity is
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Question 2: Can consultees think of
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Provisional Proposal 8: The present
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Option 4 which looks at reform to m
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Question 5: Should a jury be able t
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Please note the exploitative scenar
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out in Crown, magistrate and youth
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In the case studies of Mr Y and Mr
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APPENDIX I Case Study: Mr A [This c
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unwell. Mr A was being seen every c
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APPENDIX II Case study: Mr Z [This
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sensitively. A lawyer was obtained
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elease accompanied by a nurse. Kids
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At this time, Mr O ceased engaging
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APPENDIX V MIND: STATICTICS: FACTSH
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per 100,000 in the general populati
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Prisoners and the Mental Health Act
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RESPONSE TO LAW COMMISSION CONSULTA
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3 Admission for treatment. (1) A pa
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(8) Do consultees think that the ca
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UNFITNESS TO PLEAD Response by the
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Example 3E UNFITNESS TO PLEAD Respo
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Law Commission consultation paper n
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(1) understand the charges (2) be c
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Further, given that some clinicians
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In addition to the above proposals,
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that defendants with mental health
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Response to the Consultation Paper
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We consider that the concerns about
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Unfitness to plead - Some Responses
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or made the omission charged and th
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(6) Are there circumstances in whic
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statistics. In 2008 there were 484
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LAW COMMISSION CONSULTATION: UNFITN
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Our Comments We are not criminal pr
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4. We have been asked to suggest or
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particular tool should necessarily
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My comments refer to the recent Con
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NATIONAL BENCH CHAIRMEN’S FORUM A
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National Bench Chairmen’s Forum T
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RESPONSE TO THE LAW COMMISSION’S
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There is a real danger in conflatin
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physical strength and sexual awaken
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The group felt that many experts’
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Tel: Fitzwilliam College Fax: Cambr
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Unfitness to Plead: the place to fi
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court proceedings” (at para 149).
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processes, and, indeed, on the comp
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of the European Court of Human Righ
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Law Commission Steel House 11 Tothi
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obligations, it would be much easie
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Response to the Law Commission’s
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fit to plead, the availability and
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disability) there should be a power
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Disposal under the Mental Health Ac
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I agree. There should be a test of
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Gray, N.S., O’Connor, C., William
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On the Friday, the day before she w
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The following Thursday at The Black
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Cases involving the learning disabl
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Graham Rogers and Associates Limite
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In this case, it is being proposed
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Being able to ‘read’ The Sun or
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test, it may also begin to indicate
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subjected to the new provisions mus
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introduction, more than ten times t
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Response to Consultation paper 197,
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emand have significant personal cos
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Where possible an individual should
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epetition of evidence or the provis
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months, and are unlikely to refer b
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Question 12: How far if at all, doe
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Consultation Proposals Provisional
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agreement on the primary issue enga
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It would of course be concerning if
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witnesses who are commissioned to u
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PO BOX 3544 Wokingham, RG40 9FA T 0
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Response to Consultation Paper on U
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Unfitness to Plead Sense Response P
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- Congenitally deafblind children a
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The deafblind population has been s
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take up to 15 minutes to read a sho
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For example - A deafblind person C
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- Allowing the deafblind person to
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RESPONSE TO THE LAW COMMISSION CONS
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g. However, In some circumstances,
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QUESTION 9 Do consultees think that
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Obviously the judge should be guide
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Question 7: Should an accused who i
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problems which arose in B & others
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Page 4 of 4
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1. Introduction Victim Support is t
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In our view, a general difficulty w
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We are in support of this provision
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Question 1: Do consultees agree tha
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Preliminary Comments Dr Eileen Viza
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3 ‘developmental immaturity’ co
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PART 9 LIST OF PROVISIONAL PROPOSAL
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7 (9) If the accused is acquitted p
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9 (9) Do consultees think that if a
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11 Other References All Party Parli
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