Unfitness to Plead Consultation Responses - Law Commission ...

Provisional Proposal 5: Decision-making capacity should be assessed with
a view to ascertaining whether an accused could undergo a trial or plead
guilty with the assistance of special measures and where any other
reasonable adjustments have been made. (Paragraph 4.27)
We agree with this proposal
In summary we agree with the proposal that decision - making capacity should formally
incorporate special measures. This is based upon the distinction as set out in the CP,
that there is a difference between being unfit to plead and being fit to plead, but due to
an impairment or condition needing assistance to participate effectively in the trial
process. Our rationale for formally incorporating special measures is based upon an
analysis of case law and the unsatisfactory system that is being used at present. We
understand that the concept of special measures has evolved, from criminal cases
involving child defendants and in recent jurisprudence on Art. 6 effective participation
with respect to vulnerable defendants. We agree that due to the piecemeal manner of
unfitness to plead, special measures have been increasingly adopted to deal with
defendants not fulfilling the Pritchard criteria but still presenting with significant learning
or mental disabilities and therefore requiring specialist assistance at trial. The problem
that has been correctly identified in the CP by Dr Blackwood’s research 10 is that whilst
judicial decisions to invoke special measures are in place at the beginning of a trial, they
do not remain for the longevity of the trial process. Dr Blackwood attributes this lack of
consistence structure to the legal profession and/or the judiciary who should ensure that
such measures do not fall by the way side as the trial progresses. This position is
correct to an extent, however there are other systemic considerations that also ensure
for unsatisfactory results in using special measures effectively. We note in the CP and
agree with, that there is potentially the non -identification by legal professionals and the
10 CP pg 83, para 4.12
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