Unfitness to Plead Consultation Responses - Law Commission ...

for the Court of Appeal in appropriate circumstances to order a rehearing
under section 4A. (Paragraph 7.59)
We agree with this proposal.
QUESTIONS
Question 1: Do consultees agree that we should aim to construct a
scheme which allows courts to operate a continuum whereby those
accused who do not have decision-making capacity will be subject to
the section 4A hearing2 and those defendants with decision-making
capacity should be subject to a trial with or without special measures
depending on the level of assistance which they need? (Paragraph 4.27)
We agree – in addition though we think the test needs to include a
requirement that where an expert finds an accused ‘fit to plead’ subject to
special measures – then the special measures are clearly set out in the expert
report and if not followed or there are concerns that the defendant is not able
to effectively participate that the trial can be stopped. See our response to
Provisional Proposal 5.
Question 2: Can consultees think of other changes to evidence or
procedure which would render participation in the trial process more
effective for defendants who have decision- making capacity but due to
a mental disorder or other impairment require additional assistance to
participate? (Paragraph 4.31)
As stated above there needs to be a proper funding regime in place that
ensures equality of arms so the defendant has access to the same experts
and special measures as the Crown. This regime must be accessible to
defence witnesses as well as the defendant.
Question 3: Do consultees agree that we have correctly identified the
options for reform in relation to the section 4A hearing? If not, what
other options for reform would consultees propose? (Paragraph 6.153)
Retain fact finding trial
Question 4: If consultees do not agree that option 5 is the best option
for reform, would they agree with any other option? (Paragraph 6.153)
Option 4, with the fact finding trial, is our preferred option.
Question 5: Should a jury be able to find that an unfit accused has done
the act and that there are no grounds for acquittal in relation to an act
other than that specifically charged? (Paragraph 6.159)
We think that a defendant can be found to have done lesser included charges,
as would be an option for the jury in a normal criminal trial.
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