Unfitness to Plead Consultation Responses - Law Commission ...

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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 4
where necessary to enhance the ability of the accused to participate in all aspects of the trial process. PART 5: ASSESSING THE CAPACITY OF THE ACCUSED Provisional Proposal 7: A defined psychiatric test to assess the decision-making capacity should be developed and this should accompany the legal test as to decision-making capacity. (Paragraph 5.17) Response The Society would support the development of such a test and notes the comments at the close of this part of the consultation paper in relation to capacity to do some things but not others. The Society would restate its support for the unitary test and would oppose the disaggregated approach to assessment for the reasons set out in paragraph 5.42. PART 6: THE SECTION 4A HEARING Provisional Proposal 8: The present Section 4A hearing should be replaced with a procedure whereby the prosecution is obliged to prove that the accused did the act or made the omission charged and that there are no grounds for an acquittal. (Paragraph 6.140) Response The Society supports the conclusion that option 5 described in the paper is the most appropriate procedure to ensure that there is fairness to the accused while providing for protection to the public. Provisional Proposal 9: If the accused is acquitted provision should be made for a Judge to hold a further hearing to determine whether or not the acquittal is because of mental disorder existing at the time of the offence. (Paragraph 6.140) Response The Society supports this proposal but will return to practical issues relating to its possible application in magistrates’ courts. Provisional Proposal 10: A further hearing should be held at the discretion of the Judge on the application of any party or representative of any party to the proceedings. (Paragraph 6.152) Response The Society agrees. Provisional Proposal 11: The special verdict should be determined by the jury on such evidence as has been or on any further evidence as is called. (Paragraph 6.152). Response The Society agrees. 5
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Unfitness to Plead Consultation Res
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CONSULTEES, LISTED ALPHABETICALLY A
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Sarkar, Sameer Searle, Geoff Sense
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o The UN Committee on the Rights of
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Rethinking the Criminal Responsibil
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asic competencies of young people a
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parliament to consider rather than
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preventing crime. Graham and Bowlin
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other areas of the law’ and this
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absolute minimum age of criminal re
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The views of the judiciary in the U
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all children who are alleged to hav
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39 Trevor Jones‘Public Opinion, P
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Charity No 1137430 Company No 60065
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Charity No 1137430 Company No 60065
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From: Bickle Andrew Sent: 10 Januar
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Comments on “Unfitness to Plead,
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8. It would be very easy to insert
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himself at trial. The Court did not
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-----Original Message----- From: Br
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Response The Society welcomes the o
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for the task in hand. This would ap
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1. Introduction “UNFITNESS TO PLE
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On the other hand, the so-called co
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The Law Commissioners, Steel House,
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Law Commission consultation on unfi
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could possibly mean that they take
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whether present at the time of the
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disposals. We consider that the ref
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difficulties may or may not be fit
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profession to treatment, the civil
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of the decision the accused must ma
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25. We consider that Provisional Pr
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Provisional Proposal 5: Decision-ma
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giving evidence, it is unlikely tha
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Provisional Proposal 7: A defined p
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42. The difficulty lies in that the
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envisages that there could be an ac
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Reply 50. We consider we have alrea
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Question 6: Are there circumstances
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uilds upon the disposal of the case
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determination of jurisdiction as ap
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age” in which term we include the
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The assumption that has been made i
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which the court is satisfied that t
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The current section 4A procedure re
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The CPS then re-reviews the case in
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cases, there should be a single tri
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magistrates/District Judges, keepin
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Law Commission Consultation paper N
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From: Enys Delmage Sent: 16 March 2
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for meaningful participation in the
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(7) A defined psychiatric test to a
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(13) In the event of a referral bac
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[Paragraph 6.153] N/A (5) Should a
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[Paragraph 8.68] YES (12) How far i
Page 114 and 115: Question 1: Do consultees agree tha
Page 118 and 119: Question 5: Should a jury be able t
Page 120 and 121: Question 7: Should an accused who i
Page 122 and 123: Question 9: Do consultees think tha
Page 124 and 125: Question 11 Do the matters raised i
Page 126 and 127: Summary of comments regarding propo
Page 128 and 129: 4. Antoine probably reflects a reas
Page 130 and 131: succeed in doing so, but at the cos
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Page 136 and 137: From: Ernest Gralton Sent: 14 Decem
Page 138 and 139: then the Home Secretary, said that
Page 140 and 141: Law Commission Consultation Paper N
Page 142 and 143: Provisional Proposals 6 and 7 There
Page 144 and 145: Dear David, HHJ Wendy R. Joseph QC
Page 146 and 147: I totally agree that the test must
Page 148 and 149: Just for Kids Law: Response to the
Page 150 and 151: We agree with this approach for a r
Page 152 and 153: Provisional Proposal 6: Where a def
Page 154 and 155: Article 6 protection would also giv
Page 156 and 157: Question 6: Are there circumstances
Page 158 and 159: judges, politicians, advocates, and
Page 160 and 161: Appendix One GRISSO CRITERIA Thomas
Page 162 and 163: Justices’ Clerks’ Society Law C
Page 168 and 169: Question 9: Do consultees think tha
Page 170 and 171: Response to the Law Commission Cons
Page 172 and 173: liberating and immensely challengin
Page 174 and 175: However it is where these two areas
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Page 180 and 181: Whilst this is a submission in rela
Page 182 and 183: SECTION 1 : KC RESPONSE TO PROVISIO
Page 184 and 185: Provisional Proposal 3: The legal t
Page 186 and 187: Provisional Proposal 5: Decision-ma
Page 188 and 189: that the defendant’s capacity is
Page 190 and 191: Question 2: Can consultees think of
Page 192 and 193: Provisional Proposal 8: The present
Page 194 and 195: Option 4 which looks at reform to m
Page 196 and 197: Question 5: Should a jury be able t
Page 198 and 199: Please note the exploitative scenar
Page 200 and 201: out in Crown, magistrate and youth
Page 202 and 203: In the case studies of Mr Y and Mr
Page 204 and 205: APPENDIX I Case Study: Mr A [This c
Page 206 and 207: unwell. Mr A was being seen every c
Page 208 and 209: APPENDIX II Case study: Mr Z [This
Page 210 and 211: sensitively. A lawyer was obtained
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At this time, Mr O ceased engaging
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APPENDIX V MIND: STATICTICS: FACTSH
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per 100,000 in the general populati
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Prisoners and the Mental Health Act
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RESPONSE TO LAW COMMISSION CONSULTA
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3 Admission for treatment. (1) A pa
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(8) Do consultees think that the ca
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UNFITNESS TO PLEAD Response by the
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Example 3E UNFITNESS TO PLEAD Respo
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Law Commission consultation paper n
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(1) understand the charges (2) be c
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Further, given that some clinicians
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In addition to the above proposals,
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that defendants with mental health
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Response to the Consultation Paper
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We consider that the concerns about
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Unfitness to plead - Some Responses
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or made the omission charged and th
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(6) Are there circumstances in whic
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statistics. In 2008 there were 484
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LAW COMMISSION CONSULTATION: UNFITN
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Our Comments We are not criminal pr
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4. We have been asked to suggest or
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particular tool should necessarily
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My comments refer to the recent Con
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NATIONAL BENCH CHAIRMEN’S FORUM A
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National Bench Chairmen’s Forum T
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RESPONSE TO THE LAW COMMISSION’S
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There is a real danger in conflatin
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physical strength and sexual awaken
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The group felt that many experts’
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Tel: Fitzwilliam College Fax: Cambr
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Unfitness to Plead: the place to fi
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court proceedings” (at para 149).
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processes, and, indeed, on the comp
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of the European Court of Human Righ
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Law Commission Steel House 11 Tothi
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obligations, it would be much easie
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Response to the Law Commission’s
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fit to plead, the availability and
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disability) there should be a power
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Disposal under the Mental Health Ac
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I agree. There should be a test of
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Gray, N.S., O’Connor, C., William
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On the Friday, the day before she w
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The following Thursday at The Black
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Cases involving the learning disabl
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Graham Rogers and Associates Limite
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In this case, it is being proposed
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Being able to ‘read’ The Sun or
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test, it may also begin to indicate
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subjected to the new provisions mus
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introduction, more than ten times t
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Response to Consultation paper 197,
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emand have significant personal cos
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Where possible an individual should
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epetition of evidence or the provis
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months, and are unlikely to refer b
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Question 12: How far if at all, doe
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Consultation Proposals Provisional
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agreement on the primary issue enga
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It would of course be concerning if
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witnesses who are commissioned to u
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PO BOX 3544 Wokingham, RG40 9FA T 0
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Response to Consultation Paper on U
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Unfitness to Plead Sense Response P
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- Congenitally deafblind children a
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The deafblind population has been s
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take up to 15 minutes to read a sho
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For example - A deafblind person C
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- Allowing the deafblind person to
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RESPONSE TO THE LAW COMMISSION CONS
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g. However, In some circumstances,
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QUESTION 9 Do consultees think that
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Obviously the judge should be guide
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Question 7: Should an accused who i
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problems which arose in B & others
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Page 4 of 4
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1. Introduction Victim Support is t
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In our view, a general difficulty w
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We are in support of this provision
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Question 1: Do consultees agree tha
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Preliminary Comments Dr Eileen Viza
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3 ‘developmental immaturity’ co
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PART 9 LIST OF PROVISIONAL PROPOSAL
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7 (9) If the accused is acquitted p
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9 (9) Do consultees think that if a
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11 Other References All Party Parli
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