Unfitness to Plead Consultation Responses - Law Commission ...

theoretical, the reality of proceedings may prove otherwise. We would
suggest this safeguard be built into the legal framework.
We would make the following recommendations for improvements to the
existing special measures regime:
The statutory provision to provide an intermediary for the defendant is
not yet in force. This needs to be implemented to ensure equality of
arms.
Special measures and reasonable adjustments are not limited by
statute but are expansive and suggestions can be made according to
the particulars of each defendant (and witness)
The funding for special measures for defendants and witnesses is clear
(this is not currently the case for intermediaries for the defendant see
Sevenoaks [2009] EWHC 3088 (Admin)). The defendant must be
entitled to the equivalent cost as any prosecution witness in the
proceedings. The same is true when instructing experts, the defendant
must not be limited in who can be instructed because public funding
will not pay for the relevant expert.
Example
We represented a young woman who was accused of killing her uncle. We
wanted to instruct a well known expert in the field of sexual abuse and
domestic violence relating to provocation and diminished responsibility. We
applied for prior authority and the Legal Services Commission refused on
the grounds that they would not pay our expert’s rate/fees. Our expert
could demonstrate from receipts that on 2 previous occasions the Legal
Services Commission had paid the rate she was asking for. This kind of
arbitrary decision making cannot take place. A defendant should not be at
the mercy of a costs appeal process as legal proceedings must continue,
the courts cannot force the hand of the public funders and many legal aid
firms would not take the financial risk involved.
In relation to children in criminal proceedings we would suggest a two layer
test. Where children and young people are deemed to be able to effectively
participate with the consideration of enhanced features to the existing special
measures framework we would suggest that a Guardian/Litigation friend
option is available to them, this would provide parity with the civil system
(Gillick competency). It is important to acknowledge (as the consultation paper
does at p75) child defendants’ emotional immaturity and that many child
defendants are Children in Need as defined by the Children Act 1989.
Our additional proposals
JfK Law Proposal 5A - In cases where the defendant’s ability to
effectively participate relies upon special measures and/or reasonable
adjustments during the criminal proceedings, there should be a regular
review of the defendant’s participation and a statutory procedure for
halting the criminal proceedings and shifting into a section 4A hearing if
necessary.
Just for Kids Law
Charity Number 1121368