Unfitness to Plead Consultation Responses - Law Commission ...

Case Study
JW is a 19 year old defendant on the Autistic spectrum, charged in the
magistrates’ court with threatening words and behaviour and common
assault that relate to his condition. He lives in a residential unit for people
with Autism. His social worker wrote a report that in her opinion he was not
fit to go to trial. He was seen by a leading expert on Autism, psychologist
Professor Simon Baron Cohen, who stated in his opinion the defendant is
not fit to go to trial. However neither of these reports fulfill the requirements
of s.37 of the Mental Health Act 1983 in conjunction with s.11 Power of
Criminal Court (Sentencing) Act 2000 and so his legal team – at public
expense – must instruct two medical practitioners to provide such reports,
delaying the proceedings and adding unnecessary cost.
We would amend Proposal 7 as follow
JfK Law Proposal 7A – The requirement for the expert evidence of two
medical practitioners, in the magistrates and youth court and 2 medical
practitioner one of whom is s.12 approved, in the crown court should
be removed and replaced with two ‘responsible clinicians’2
JfK Law Proposal 7B – A defined clinical test should be introduced as a
standard test (but not exhaustive test) for assessing ‘effective
participation’ in conjunction with an interview which would include
analysis of the legal test as to ‘effective participation’. Where relevant,
clinicians should be able to use the most appropriate clinical
assessment tools to enable them to assess an individuals’ ability to
participate in the trial process.
JfK Law Proposal 7C – A code of practice should be introduced to
guide clinicians in the assessment of ‘effective participation’.
Provisional Proposal 8: The present section 4A hearing should be
replaced with a procedure whereby the prosecution is obliged to prove
that the accused did the act or made the omission charged and that
there are no grounds for an acquittal. (Paragraph 6.140)
We agree with this proposal as the best way to proceed – We would include
within this the protection under Article 6 of the European Convention of
Human Rights as is stated within the consultation paper.
We believe the argument of loss of freedom (ie a potential hospital order)
should entitle a defendant to protection under Article 6. This would entitle
defence representatives to raise defences that are apparent on the papers ie
self-defence, duress and others that are currently not available to an unfit
defendant.
2 Terminology used in the Mental Health Act 2007
Just for Kids Law
Charity Number 1121368