Unfitness to Plead Consultation Responses - Law Commission ...

Justices’ Clerks’ Society
Law Commission Consultation Paper No 197
Unfitness to Plead
The Justices’ Clerks’ Society is pleased to respond to the consultation paper. Although the
main weight of the Society’s response will deal with the provisional proposals and questions
relating to summary proceedings in magistrates’ courts and youth courts the Society
comments on other proposals in order to assist in the development of a consistent and
coherent process for dealing with the issues of fitness to plead in all courts.
PART 3: THE NEW LEGAL TEST
Provisional Proposal 1:
The current Pritchard Test should be replaced and there should be a new legal test
which assesses whether the accused has decision-making capacity for trial. This test
should take into account all the requirements for meaningful participation in criminal
proceedings. (Paragraph 3.41).
Response
The Society supports the view that the current test should be replaced and notes that the test
put forward is based on decision-making capacity. So long as the term “decision-making
capacity” embodies all the basic requirements for effective and meaningful participation in
the trial process as set out in paragraph 3.40 the proposal will have the Society’s support.
The Society would be concerned if the phrase “decision-making capacity” was not sufficiently
well defined to include, for example, the capacity to understand facts, to make
representations and to challenge where necessary. The Society endorses the approach to
effective participation set out in Secretary to the Committee v UK (2005) referred to in the
consultation paper. It agrees that the Pritchard Test is outdated and that some aspects of
the test, notably the reference to the ability to challenge a juror, are not useful in determining
the fitness of the accused to stand trial.
Provisional Proposal 2:
A new decision-making capacity test should not require that any decision the accused
makes must be rational or wise. ( Paragraph 3.57).
Response
The Society agrees with this proposal and supports the line of argument which suggests that
the important factor is the ability to receive information, understand it and use it in a
reasoned way to make a decision. The fact that such decisions might be difficult to support
or even irrational should not be a factor to determine whether an accused person is fit to
stand trial.
Provisional Proposal 3:
The legal test should be a revised single test which assesses the decision-making
capacity of the accused by reference to the entire spectrum of trial decisions he or
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