Unfitness to Plead Consultation Responses - Law Commission ...

SECTION 1 : KC RESPONSE TO PROVISIONAL PROPOSALS AND QUESTIONS
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 the criminal proceedings.
(Paragraph 3.41)
We agree with this proposal.
In summary we agree with the legal premise and analysis of psychiatric thought behind
the replacement of the Pritchard test with a new decision-making capacity test. The
removal of archaic provisions such as the ability to challenge a juror are welcomed.
However essentially it should be noted that the decision - making capacity test by virtue
of the breadth of area it covers, incorporates the Pritchard criteria in to its
considerations. KC appreciates that proposed decision - making capacity based test
ensures for fairer treatment of the accused, the proposed test looks into the wide range
of decisions that are required throughout a criminal trial and enables dissemination of
whether the individual accused with his or her particular mental disorder or disability
would be able to meaningfully and effectively participate at trial. The concept of effective
participation was not addressed within the criteria of the Pritchard test as it was not a
necessary consideration at the time to ask, whether the accused would be able to make
effective decisions to participate. This is the result of Pritchard test’s emphasis on
cognitive ability rather than decision – making capacity. The reason why KC believes
that the test needs to take into account all the requirements of criminal proceedings is to
ensure fair treatment of the most vulnerable, due process and prevent miscarriages of
justices that were prevalent under the Pritchard test.
From clients case studies at Appendix I – IV it is apparent that the current test does not
adequately deal with unfitness to plead in an just and fair manner.
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