Unfitness to Plead Consultation Responses - Law Commission ...

judiciary of “hidden disabilities” 11 . It is somewhat in the paradoxical behaviour of those
with disabilities who feel the need to protect themselves to the effect of hiding any such
impairments. This problem can also contribute to the issues in relation to early
identification and screening. It is on this basis that we additionally endorse the use of the
seven recommendations set out at CP para 4.15, with special regard for
recommendations 4.15 (1), (2), (4), (7). Our main reason for supporting the inclusion of
the special measures within the legal test is based upon ensuring effective participation.
We would state that the piecemeal approach to date has highlighted that special
measures are a necessary and logical consideration to be made when determining
whether the accused will be able to stand trial. To not include special measures as part
of the test would be to reform the unfitness to plead in a rather counter-productive
manner.
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 they need?
We agree with this proposal
In addition to our comments to proposal 5, we agree that operating a continuum
scheme using special measures where defendants are deemed to have decision
- making capacity and therefore subject to trial with or without special measures
as appropriate. The rationale for agreement, based within understanding the
proposed unfitness to plead decision – making capacity test, is that at every
stage in the criminal process it is possible for the defendant to be assisted
according to his or her needs. It is through this in-built procedural mechanism
11 CP, 83, para 4.11
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