Unfitness to Plead Consultation Responses - Law Commission ...

judges, politicians, advocates, and journalists are biased toward drawing a
single line between adolescence and adulthood for different purposes under
the law that is at odds with developmental cognitive neuroscience (Steinberg
et al. in press).”
The United States Supreme Court has recognized that adolescents, by virtue
of developmental immaturity are inherently less responsible for their behavior
than adults. In the case of Graham v. Florida the US Supreme Court
emphasised neuroscience research in explaining why it violated the 8th
Amendment to impose a sentence of life without parole on a juvenile, except
in homicide cases. Similarly in abolishing the juvenile death penalty in Roper
v. Simmonds the Supreme Court Justices were referred to Amicus briefs filed
by the American Medical Association and the American Psychiatric
Association showing that the adolescent mind operates differently, their brains
are more anatomically immature. Research shows that adolescent brains are
more active in regions related to aggression, anger and fear and less active in
regions related to impulse control, risk assessment and moral reasoning.
In New York, a Governor’s Task Force wrote a scathing critique of the juvenile
system with an emphasis on youths’ developing brains. New Course: A
Blueprint for Transforming Juvenile Justice in New York State, Dec. 2009, 19.
Based on the Report, Mayor Bloomberg announced a policy of keeping NYC
youths in the community.
In the UK research by Dr Ernst Gralton and Dr Felicity de Zulueta supports
the American research that the adolescent brain does not work in the same
way as an adult brain.
We would not limit developmental immaturity to ‘youth trials’ but to
‘proceedings that involve youths’ (as these occur either in the youth court or
for more serious crimes in the Crown Court).
Additional Concerns not addressed in the consultation paper
Disposals
The consultation paper does not address disposals in detail but in our
experience there are a number of concerns about the current disposals
available in a finding of unfit to plead and having done the act.
Firstly, the disposals available in the magistrates/youth court differ from those
in the Crown Court. Currently in the magistrates/ youth court a defendant can
be given a hospital order or a guardianship order if they have been found to
have done the act. However the guardianship order does not mirror the
supervision order that is available in the Crown Court. Indeed one of the
immediate problems is that Guardianship orders are only available to those
over the age of sixteen (see s.7 Mental Health Act 1983). Further,
guardianship orders are only available for those suffering from a mental
disorder (a person suffering from a learning disability as defined in s. 1 (4) of
the amended MHA 1983, is not suffering from a mental disorder for the
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