Unfitness to Plead Consultation Responses - Law Commission ...

is also a real discrepancy between the different disposals available under the
MHA 1983, s. 37 and the Criminal Procedure (Insanity) Act 1964, further
highlighting that the procedure set down in Barking fails to protect defendants
in the magistrates/youth courts to the same degree. We have highlighted
these discrepancies in a separate section at the end of this response.
Question 9: Do consultees think that if an accused lacks decisionmaking
capacity there should be a mandatory fact- finding procedure in
the magistrates’ court? (Paragraph 8.37)
Yes. There is no rational basis for distinguishing between the Crown Court
and magistrates’ courts. Indeed when defendants plead guilty to minor
offences in the magistrates’ court despite being unfit (due to pragmatic
advice), this is often relied upon by the Crown as evidence of “fitness” at any
later unfitness hearings in the Crown Court.
Question 10: If consultees think that there should be a mandatory factfinding
procedure, do they think it should be limited to consideration of
the external elements of the offence or should it mirror our provisional
proposals 8 and 9? (Paragraph 8.37)
We think it should mirror provisional proposal 8
Question 11: Do the matters raised in questions 8, 9 and 10 merit equal
consideration in relation to the procedure in the youth courts?
(Paragraph 8.68)
Yes – The youth court is a magistrates’ court and all the concerns relating to
the procedure in the adult magistrates’ court should apply at least equally, and
as recognised in the consultation paper, more forcefully. We believe there
should be further consideration in the youth court in relation to a defendant’s
age, and this limiting his ability to participate, and also with regards to his
developmental immaturity and lack of impulse control. This is addressed more
fully below.
Question 12: How far if at all, does the age of criminal responsibility
factor into the issue of decision-making capacity in youth trials?
(Paragraph 8.69)
We believe it factors considerably. Academic and scientific research shows
that both neurobiological immaturity and psychological immaturity together
impact the way that adolescents respond in or to situations. Dr BJ Casey,
Director of the Sackler Institute (Center for Brain, Gene and Behavioral
(CBGB) research across development and the Neuroscience Graduate
Program) Cornell University states; "Adolescents show adult levels of
intellectual capability earlier than they show evidence of adult levels of
impulse control (Reyna & Farley 2006). As such, adolescents may be capable
of making informed choices about their future (e.g., terminating a pregnancy)
but do not yet have full capacity to override impulses in emotionally charged
situations that require decisions in the heat of the moment. Unfortunately,
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