Unfitness to Plead Consultation Responses - Law Commission ...

Provisional Proposal 3: The legal test should be a revised single test which
assesses the decision-making capacity of the accused by reference to the
entire spectrum of trial decisions he or she might be required to make.
Under this test an accused would be found to have or to lack decisionmaking
capacity for the criminal proceedings. (Paragraph 3.99)
We agree with this proposal, save for the issue of proportionality.
In summary we agree with maintaining a revised unitary test opposed to a disaggregated
test which it is agreed would be unworkable, impractical and time absorbing. A test of
such a complex area needs to be flexible and practical whilst ensuring fairness. In
addition the CP makes proposals for circumstances where a unitary test would be most
beneficial and disposes of this issue sufficiently through the use of proposed special
measures.
From our client perspective the legal system is a daunting and stressful period for
anybody, however for the most vulnerable without a sufficient support network in
conjunction with any untreated or untreatable mental disorders or disabilities the process
should not, as far it as possible, be more protracted than necessary.
In relation to the issue of proportionality, whilst it is understood and agreed that
proportionality is largely inconsistent with the aim and purpose of criminal proceedings,
this is not the same as using proportionality in the overall sense in relation to the kinds of
decisions necessary to be made throughout the proceedings and we comment on this
further under proposal 4.
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