Unfitness to Plead Consultation Responses - Law Commission ...

Question 9: Do consultees think that if an accused lacks decision-making capacity
there should be a mandatory fact-finding procedure in the magistrates’ court?
Answer
Notwithstanding that the offence charged is only triable summarily, cases presented to the
magistrates’ courts involving accused persons who are unfit to plead may, and frequently do,
give rise to serious concerns over the need to protect the public. The risk of further
uncontrolled behaviour can in such cases be high. Accordingly, it is, in the Society’s view,
essential that there should be a transparently fair hearing to establish the facts so that the
court can determine whether any order is necessary and, if so, the level of intervention
required.
Question 10: If consultees think there should be a mandatory fact-finding procedure,
do they think it should be limited to consideration of the external elements of the
offence or should it mirror our provisional proposals 8 and 9?
Answer
The Society would support provisional proposals for the court to have the option of ordering a
further hearing to determine whether the accused was acquitted due to a mental disorder
existing at the time of the offence. It is inevitable that, in many cases, the issue of the
defendant’s mental state at the time of the offence will be explored during the fact-finding
hearing. It is, for example, possible that the accused might be acquitted since he or she was
unable to form the necessary criminal intent for the commission of the offence. Despite such
a finding a further hearing would be necessary if a separate finding of mental disorder
existing at the time would be necessary to justify any formal order being made by the court.
Such hearings should be at the discretion of the court which dealt with the fact-finding
hearing.
Question 11: Do the matters raised in questions 8, 9 and 10 merit equal consideration
in relation to the procedure in youth courts?
Answer
The Society can see no reason why the procedure which is set out in the provisional
proposal in the consultation paper should not apply equally to youths. The rights of the
young accused person must qualify for the same level of protection as those of the adult
accused.
Question 12: How far, if at all, does the age of criminal responsibility factor into the
issue of decision-making capacity in youth trials?
Answer
Whilst the Society acknowledges that a lack of developmental maturity may be a factor which
is highly relevant to the issue of capacity to make decisions and/or participate in a trial, it is
not convinced that it is necessary for the court to address the capacity of the accused to
understand that the actions he/she is accused of doing are seriously wrong. The Society
accepts that part of decision-making capacity is an understanding of the seriousness of the
proceedings and the potential consequences. However, it would contend that the key to
resolving this issue is determining what steps need to be taken to ensure that the rights of
the accused are not adversely affected as regards engagement in the trial process. The
court should be required to decide, on the basis of expert evidence, whether the accused,
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