Unfitness to Plead Consultation Responses - Law Commission ...

Dear David,
HHJ Wendy R. Joseph QC
The Crown Court sitting at Snaresbrook
7 th March 2011
May I begin by saying it was a real pleasure to read your research,
analysis and proposals. It was thoroughly engaging – and you can’t always
say that about a CP. It is against that background that I tentatively make these
observations. They are in no sense criticisms, nor even disagreements, but
just observations made from the practical point of view of someone who sits.
No one could disagree that the Pritchard test is neither properly
understood nor properly applied by very many psychiatrists. It is vague,
clumsy and does not serve its purpose. I repeatedly have to order
supplementary psychiatric reports because the 1 st does not address the
relevant criteria. Clearly the test needs to be changed.
As to the nature of the new test: I was interested to see that you were not
tempted by a Scottish-type ‘effective participation’ test. Of course both that
and a ‘decision-making capability’ type test have to be interpreted in a way
that covers substantially the same ground so perhaps the phrase chosen
matters less than the way in which you define what it should cover. On that
subject, I merely observe that to be tried fairly, an accused would (as a very
minimum) have to be able
to give instructions as to whether he did the act complained of and
to describe his state of mind at the time
Without these two aspects he cannot be properly advised as to the
appropriate plea. In addition he must be able to
follow the evidence so that he can give further instructions if necessary
understand advice re the advantages/disadvantages of giving/calling
evidence
give evidence on his own behalf if appropriate
Without these 3 aspects he cannot properly participate in the trial
Clearly some of these processes are better described as decision making,
others as participation.
I agree that, whether or not his decisions are in his own best interest is
not the relevant test. I am constantly confronted with defendants (about
whose fitness to plead no question is ever raised) whose very decision to
plead not guilty is profoundly against their own interests. It is usually caused
by a stubborn refusal to publicly accept their wrongdoing (particularly in child
sex cases) or a stubborn optimism that somehow the wool can be pulled over