Unfitness to Plead Consultation Responses - Law Commission ...

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