Unfitness to Plead Consultation Responses - Law Commission ...

she might be required to make. Under this test an accused would be found to have or
to lack decision-making capacity for the criminal proceedings. (Paragraph 3.99).
Response
The Society supports this proposal since the test which is proposed is sufficiently wide for a
range of issues regarding capacity to participate in the trial to be taken into account. The
Society supports the simplicity of this test over the later proposal which requires an
assessment of the complexity of the proceedings and the impact of the disability of the
accused on his/her decision-making capability in the context of the trial. The Society agrees
that the proper approach is to address the ability of the accused to participate effectively in
each stage of the process to decide whether the accused is unfit to plead. The Society
believes that such a test is sufficiently clear for application in both summary trial and trial on
indictment and agrees that addressing proportionality introduces a risk of uncertainty and is
likely to lead to inconsistent decisions based on the views of the court on whether
adaptations to the trial process can enable participation. It is, in the Society’s view,
preferable that the decision is based on information provided by experts where possible so
that the court can address the issue of whether or not the accused has the necessary
decision-making capacity or not. Paragraph 3.105 is agreed in its entirety.
Provisional Proposal 4:
In determining the defendant’s decision-making capacity it would be incumbent on the
Judge to take account of the complexity of the particular proceedings and gravity of
the outcome. In particular, the Judge should take account of how important any
disability is likely to be in the context of the decision the accused must make in the
context of the trial which the accused faces. (Paragraph 3.101).
Response
For the reasons set out above the Society believes it would unwise to introduce a test which
requires the court to evaluate the decision-making capacity of the accused according to the
complexity of the proceedings and the gravity of the outcome.
PART 4: THE ROLE OF SPECIAL MEASURES
Provisional Proposal 5:
Decision-making capacity should be assessed with a view to ascertaining whether an
accused could undergo a trial or plead guilty with the assistance of special measures
and where any other reasonable adjustments have been made. (Paragraph 4.27).
Response
The Society agrees that the use of special measures may enhance the capacity of the
accused to participate in proceedings and improve the accused capacity to make decisions.
However, it is extremely rare for a defendant to be granted the right to give evidence by way
of live-link in proceedings in magistrates’ courts. As you are aware, the use of an
intermediary to assist the defendant is not yet available. Accordingly, the Society is unable
to comment on the efficacy of such measures. The Society would express reservations
about the extent of the impact such measures might have on the capacity of the accused
who would otherwise be found to lack the necessary decision-making capacity to participate
effectively in the proceedings. The Society notes that the paper rejects the need for a wholly
disaggregated test to determine the capacity of the accused. If such an approach were to be
adopted the Society could see merit in the suggestion that the availability of special
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