Unfitness to Plead Consultation Responses - Law Commission ...

the jury’s eyes. Someone with a mental illness may be motivated by the same
stubbornness. It is only if an accused’s inability to make a sensible decision is
due to his e.g. a delusional illness that the situation is different.
My real problem with your use of the term and definition of ‘decisionmaking
capacity’ is the very wide number of situations which it is capable of
embracing which are presently outside the ‘Pritchard’ test – or at least outside
the way it is currently applied.
Of course I agree in principle that anyone who can’t have a fair trial
should not be tried, but there are a myriad of ways in which a trial can shift
across the barrier of ‘fair / unfair’, some of which are in the court’s power e.g.
special measures, and others of which are not e.g. whether a borderline
defendant is having a good or bad day.
I quite see that in practice, by the time those who potentially might fall
within your definition have been the subject of reports, and the judge has
listened to arguments and ruled, sensible decisions can be made. But 2 things
are clear.
a. There are likely to be a very much larger number of defendants who
will be deemed unfit.
b. There will certainly be a hugely larger number of defendants who will
need to be examined to see if they are unfit.
It is b. that may cause the practical difficulty. At the moment it is generally only
when lawyers find themselves with a client with a history of mental illness, or
where they find they really can’t take instructions, that the question of
psychiatric reports arises. Under your much broader definition of unfitness,
those representing the alcohol and drug-addicted, the depressed and
learning-disabled will be bound to pursue this avenue in their client’s interests.
No dount, once reports are obtained, the vast majority of these defendants will
be able to be tried, perhaps with the assistance of special measures. I don’t
necessarily see the trial / unfitness hearing as being the problem. The
problem is likely to arise in the need for a very much larger number of
defendants to be the subject of reports before that stage can be reached.
Unless I misunderstand your proposals, I see the very likely consequence
of them to be a much increased number of adjournments whilst these matters
are investigated, delays while funding is sought, more delays and expense as
reports and reports-in-rebuttal are prepared, and extra hearings for these
matters to be investigated. I quite see that in an ideal world, your solution is
the fairest, the ‘most right’. But we are not living in an ideal world. We are
living in a world where money is being withdrawn from the system’s every
aspect, and in which time is an increasingly scarce commodity.
Whilst I unreservedly accept that an expensive, delayed and stressful trial
is better than an unfair trial, I really do wonder if such a broad brush approach
can realistically be achieved in present times. In particular I wonder about its
applicability for some relatively minor, non-dangerous offences. Where a
finding of unfitness is likely to lead to s37 / s41 disposal – with the potential for
denying an accused of his liberty without limit of time – such an approach as
yours may well be justified. But can that be said of all cases? Should there be
a distinction between different sorts of cases?