Unfitness to Plead Consultation Responses - Law Commission ...

Question 6: Are there circumstances in which an accused person who is
found to have done the act and in respect of whom there are no grounds
for an acquittal should be able to request remission for trial? (Paragraph
7.26)
Yes – if the defendant is subsequently fit and feels that a miscarriage of
justice has occurred in having been found to have done the act. If, for
example, a defendant feels that by giving evidence they would be acquitted,
this option should be available.
Question 7: Should an accused who is found to be unfit to plead (or to
lack decision-making capacity) be subject to the section 4A hearing in
the same proceedings as co-defendants who are being tried?
(Paragraph 7.44)
We believe that the decision in R v B, W & Others [2008] EWCA Crim. 1997
should be the exception rather than the rule. In our submission the
overwhelming presumption should be in favour of separate trials, save in the
most exceptional circumstances as arose in R v B, W & Others ie where there
was a 30+ count indictment, charges dating back 40 years, numerous civilian
witnesses.
We believe joint trials of fit and unfit defendants could lead to a miscarriage of
justice. Either for the unfit defendant, who is unable to defend himself in a cut
throat defence or for the fit defendant who may be seen, in the eyes of the
jury, as leading a vulnerable person astray.
Case Study
JB was charged with robbery with 3 co-defendants. The Crown’s case was
that the defendant had committed the robbery but that the co-defendants
were involved as part of a joint enterprise. The Crown’s evidence was
based solely on the evidence of the victim, however the Crown’s case
would have been bolstered by the Co-defendants case, had they been able
to run presence but non- participation. JB, the unfit defendant would not be
able to give evidence in his own defence to respond to the allegations
made by the fit co-defendants. The defence moved for separate hearings
for the trial of the facts and the actual trial, which was granted.
Question 8: Do consultees think that the capacity based test which we
have proposed for trial on indictment should apply equally to
proceedings which are triable summarily? (Paragraph 8.37)
Yes – the procedure in the magistrates’ court (including the youth court)
should mirror that in the Crown Court. The Barking Youth Court procedure is
an unhappy compromise. There is no basis for distinguishing between
procedures based solely on the gravity of an offence – particularly as in the
youth court, very serious offences (grave crimes) are heard in the summary
jurisdiction. Arguably the distinction is both arbitrary and discriminatory. There
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