Unfitness to Plead Consultation Responses - Law Commission ...

I totally agree that the test must be applied to the issues of the case. It is
pretty obvious that a person with a particular set of mental health problems
may be perfectly able to make appropriate decisions and participate
effectively in a 2 day case where his defence is alibi, whilst being quite unable
to do the same in multi-handed 6 week case where his defence is ‘I didn’t
have the appropriate mental state.’ . He may be well able to cope with a case
that does not touch upon his fears and anxieties, but not if it does. However
this means that the psychiatric reports will have to deal with the issues in the
case rather than just his general decision-making / participation capacity. This
will require more input from psychiatrists than we often get at the moment,
more reading by them of case papers and other trial-related material, and with
it bigger bills for their services. Sorry to return to the same theme. But at
present it is a battle to get funding for anything, and I can’t help wondering
where all the extra money will come from.
The only solution that occurs to me is, to return to an earlier theme, the
possibility of providing your better (though much more expensive) scheme for
cases whose gravity – both to the complainants and defendants – warrants it.
In other words, perhaps cases where issues of public protection are engaged
may need to be dealt with differently from those where they are not.
I totally agree that the decision for a judge must include whether problems
can be alleviated by the use of appropriate special measures. In my view the
full range of measures available to other witnesses (with the exception of prerecorded
evidence-in-chief) should be available for consideration for an
accused. This should include the use of an intermediary, screens, a TV link,
shortening court hours, increasing the number of breaks, preventing the use
of complex language and sentence structure by counsel etc.
I agree that a D with a mental disorder etc. who wishes to give evidence
should not have to do so without the jury understanding the possible / likely
effect of his impairment. However, and again, you will be aware of the extra
delays and escalating costs when experts are involved.
I agree that a defined psychiatric test should assist the judge. It would no
doubt be part of the reports. I would be very interested to see how it could be
designed since the judge’s decision must be made against the background of
the particular offence. Like you, I am sure it can be achieved. but am having
some difficulty imagining it.
I am fascinated by your suggestion that there should a further judge-held
hearing to determine if the acquittal is because of mental disorder at the time
of the offence. It is an interesting idea that a judge should try to interpret the
thoughts of a jury. At present, in ordinary trials, in some circumstances the
judge is entitled to make his / her own findings of fact when sentencing, if the
jury’s verdict doesn’t make the factual basis clear. Your proposal, if I
understand rightly, will go very much further. Of course juries do not always
have a unanimous factual basis for their conclusions, and judges do not
always agree with a verdict. I wonder what appeal process there could be