Unfitness to Plead Consultation Responses - Law Commission ...

We agree with this approach for a revised unitary test. However, we would
propose, as with provisional proposal one, that the language should state
‘proceedings’ and avoid reference to ‘trial decisions’ as ‘trial’ may be
interpreted to exclude other forms of criminal or adjunct proceedings.
We further propose the use of the phrase ‘effective participation’ rather than
‘decision-making capacity’. We note ‘effective participation’ was adopted by
the Scottish Law Commission in its recommendations and incorporated by the
changes in Scottish law. ‘Effective participation’ is the terminology used by the
European Court of Human Rights (the European Court) and would therefore
keep the language in England in Wales in line with the European Court
decisions and has the potential to be more expansive than ‘decision-making
capacity’.
Provisional Proposal 4: In determining the defendant’s decision-
making capacity, it would be incumbent on the judge to take account of
the complexity of the particular proceedings and gravity of the outcome.
In particular the judge should take account of how important any
disability is likely to be in the context of the decision the accused must
make in the context of the trial which the accused faces. (Paragraph
3.101)
We would not adopt this alternative proposal. We think that this would lead to
injustice. The decision as to the ability of a defendant should be decided on
the opinion of the relevant experts rather than a member of the judiciary, who
may or may not have any prior knowledge of the particular circumstances or
condition of a defendant.
We acknowledge that effective participation may vary depending upon the
specific charges the defendant faces – however this could be dealt with more
appropriately by asking specific questions of the expert in relation to the
elements of the charges and can be incorporated into the instructions for the
psychiatric/expert assessment process.
We think Proposal 3 should be followed.
Provisional Proposal 5: Decision-making capacity should be assessed
with a view to ascertaining whether an accused could undergo a trial or
plead guilty with the assistance of special measures and where any
other reasonable adjustments have been made. (Paragraph 4.27)
We agree that effective participation should be assessed with regard to the
assistance of special measures or any other reasonable adjustments,
however, we think that there should be a safeguard. Firstly, in cases where
special measures and reasonable adjustments have been implemented, that
their effectiveness is kept under review. Secondly, that there is a procedure
for halting the trial should the defendant’s ability not be as thought/envisaged
by the expert report or the circumstances change. Any expert
recommendation regarding the use of special measures or reasonable
adjustments to allow the defendant to effectively participate can only ever be
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