Unfitness to Plead Consultation Responses - Law Commission ...

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Just for Kids Law: Response to the Law Commission Consultation Paper No.197 Unfitness to plead Drafted By Brenda Campbell Kate Aubrey Johnson Maya Sikand Shauneen Lambe Just for Kids Law is a charity (1121368) that works in conjunction with the Youth Department of a legal aid firm providing complete support and representation to children and young people in the criminal justice system. We have an established history of working with vulnerable children and young people and as such we are recognised as a specialist provider of services by organisations such as the National Autistic Society. At any one time our lawyers are running 5-10 cases where there are issues of fitness to plead or effective participation. We have taken a number of legal challenges in this area and in particular the case of TP v West London Youth Court (cited in the consultation paper). Given the statistics provided by Professor Mackay it appears that we provide representation in a significant percentage of the cases where fitness to plead is raised. Our experience and knowledge of the way fitness to plead is litigated in the Crown Court and more importantly the Youth Court leads us to believe that there is the need for a radical overhaul of the law as it relates to those with disabilities in the criminal justice system. PROVISIONAL PROPOSALS Provisional Proposal 1: The current Pritchard test should be replaced and there should be a new legal test which assesses whether the accused has decision-making capacity for trial. This test should take into account all the requirements for meaningful participation in the criminal proceedings . (Paragraph 3.41) We agree with this proposal. We think it is important to enshrine within criminal proceedings the requirement that all defendants, and in particular youths, can meaningfully participate in criminal proceedings 1 . We would suggest that the wording in provisional proposal one is changed to say “proceedings” rather than “trial” as the world “trial” could be interpreted to exclude pre-trial issues such as giving instructions, “sentencing” or other hearings that run adjunct to trials, such as ASBO hearings. 1 The inconsistencies in the current approach are highlighted in Keating, H., ‘The ‘responsibility’ of children in the criminal law’ [2007] Child and Family Law Quarterly 183 Just for Kids Law Charity Number 1121368
We believe that the Grisso criteria, which we understand is recommended by the Royal College of Psychiatry to its members when assessing fitness to plead, encompasses the elements that need to be considered when assessing whether a defendant is fit to plead or effectively participate in the proceedings. (See attached – Appendix 1). The test currently set out in the CP at paragraph 3.13 is limited to decisionmaking capacity, we would propose it is expanded to reflect all aspects of the court process, for example, that an accused should be found unable to effectively to participate if he or she is unable to do any of the following: Have the capacity to make decisions for him or herself Understand the charges and potential consequences Understand the trial process Have the capacity to participate with his or her legal team in a defence Have the ability for participation during court hearings Provisional Proposal 2: A new decision-making capacity test should not require that any decision the accused makes must be rational or wise. (Paragraph 3.57) We agree with this proposal, however, we think that there should be consideration of the situation where an accused person refuses or does not agree with advice provided by his or her legal team. In our experience it is not uncommon for the accused person to disagree with his or her legal advisers who wish to explore capacity/effective participation issues. We feel that the court should be given an inherent jurisdiction to invoke the effective participation procedure and instruct an expert to advise in appropriate cases. The lawyers for the defendant must act on the defendant’s instructions, until such time as the defendant is found not to have capacity. The Court, however, is independent and could order the investigation even if the defendant did not wish that avenue to be pursued. Should a defendant be found not have capacity based on the Court instructed expert, the court would then be in a position to appoint the defendant with a lawyer who would act in the defendant’s best interests and not necessarily according to the defendant’s instructions. Our additional proposal JfK Law Proposal 2A - A new effective participation test should include the power for the court to independently instruct an expert to consider effective participation issues. Provisional Proposal 3: The legal test should be a revised single test which assesses the decision-making capacity of the accused by reference to the entire spectrum of trial decisions he or she might be required to make. Under this test an accused would be found to have or to lack decision-making capacity for the criminal proceedings. (Paragraph 3.99) Just for Kids Law Charity Number 1121368
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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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age” in which term we include the
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The assumption that has been made i
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which the court is satisfied that t
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The current section 4A procedure re
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The CPS then re-reviews the case in
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cases, there should be a single tri
Page 97 and 98: magistrates/District Judges, keepin
Page 99 and 100: Law Commission Consultation paper N
Page 101 and 102: From: Enys Delmage Sent: 16 March 2
Page 103 and 104: for meaningful participation in the
Page 105 and 106: (7) A defined psychiatric test to a
Page 107 and 108: (13) In the event of a referral bac
Page 109 and 110: [Paragraph 6.153] N/A (5) Should a
Page 111: [Paragraph 8.68] YES (12) How far i
Page 114 and 115: Question 1: Do consultees agree tha
Page 118 and 119: Question 5: Should a jury be able t
Page 120 and 121: Question 7: Should an accused who i
Page 122 and 123: Question 9: Do consultees think tha
Page 124 and 125: Question 11 Do the matters raised i
Page 126 and 127: Summary of comments regarding propo
Page 128 and 129: 4. Antoine probably reflects a reas
Page 130 and 131: succeed in doing so, but at the cos
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Page 136 and 137: From: Ernest Gralton Sent: 14 Decem
Page 138 and 139: then the Home Secretary, said that
Page 140 and 141: Law Commission Consultation Paper N
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 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
Page 158 and 159: judges, politicians, advocates, and
Page 160 and 161: Appendix One GRISSO CRITERIA Thomas
Page 162 and 163: Justices’ Clerks’ Society Law C
Page 164 and 165: measures might have a beneficial im
Page 168 and 169: Question 9: Do consultees think tha
Page 170 and 171: Response to the Law Commission Cons
Page 172 and 173: liberating and immensely challengin
Page 174 and 175: However it is where these two areas
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Page 178 and 179: wholly agree with, focuses predomin
Page 180 and 181: Whilst this is a submission in rela
Page 182 and 183: SECTION 1 : KC RESPONSE TO PROVISIO
Page 184 and 185: Provisional Proposal 3: The legal t
Page 186 and 187: Provisional Proposal 5: Decision-ma
Page 188 and 189: that the defendant’s capacity is
Page 190 and 191: Question 2: Can consultees think of
Page 192 and 193: Provisional Proposal 8: The present
Page 194 and 195: Option 4 which looks at reform to m
Page 196 and 197: 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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