Unfitness to Plead Consultation Responses - Law Commission ...

measures might have a beneficial impact on the capacity of the accused to participate in
certain aspects of the trial. The Society does not believe it is such a straightforward exercise
when the unitary exercise to capacity is adopted. If the availability of the special measure
was to be factored into this decision it would require some degree of disaggregation of the
process to assess the impact of the measure. The Society believes that this will build-in
confusion to the decision-making process for the court. It does, however, support the use of
such measures for defendants who have found to have the necessary decision-making
capacity but who require assistance properly to present evidence in the trial. Accordingly,
the Society supports the approach to special measures which is set out in paragraph 4.17(2).
Question 1: Do consultees agree that we should aim to construct a scheme which
allows courts to operate a continuum whereby those accused who do not have
decision-making capacity will be subject to the section 4A hearing and those
defendants with decision-making capacity should be subject to a trial with or without
special measures depending on the level of assistance which they need? (Paragraph
4.27)
Answer
Please refer to the comments above. The Society agrees with the creation of a scheme
which allows the use of fact-finding hearings for those accused persons who lack capacity
and supports the use of special measures to improve the quality of evidence of the accused
in a trial so long as the accused has been found to have capacity to make decisions as set
out in part 6. The Society would point out that decision-making capacity goes beyond merely
the giving of evidence and it is this aspect of the trial process which benefits from the
availability of special measures.
Provisional Proposal 6:
Where a defendant who is subject to a trial has a mental disorder or other impairment
and wishes to give evidence then expert evidence on the general effect of that mental
disorder or impairment should be admissible. (Paragraph 4.31)
Response
The Society does not find this proposal contentious.
Question 2: Can consultees think of other changes to evidence or procedure which
would render participation in the trial process more effective for defendants who have
decision-making capacity but due to a mental disorder or other impairment require
additional assistance to participate? (Paragraph 4.31)
Answer
Provisions contained in Chapter 1A of the Youth Justice and Criminal Evidence Act 1999
which provide for the availability of special measures for an accused person limit their use to
the participation in the proceedings by way of giving evidence. So, for example, Section
33BA which is introduced by the Coroners and Justice Act 2009 (yet to be implemented)
provides for the use of an intermediary to assist in the examination of the accused. The
intermediary would not be available, on the face of the provisions, to assist the accused in
participation in the cross-examination of prosecution witnesses or other aspects of the trial.
It might be argued that this is the function of the legal representative of the accused.
However, the intermediary may be able to enhance the ability of the accused to raise issues
with his or her legal representative. The Society would advocate the use of intermediaries
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