Unfitness to Plead Consultation Responses - Law Commission ...

Question 6: Are there circumstances in which an accused person who is
found to have done the act and in respect of whom there are no grounds
for an acquittal should be able to request remission for trial?
We at present do not have further submissions on this point. The law as it currently
stands and the proposals set forth in the CP adequately address this point. Whilst
contentious as it affects areas outside our response remit in relation to public interest
and budget, the most important point to be maintained is that the accused found to have
done the act can receive treatment and is monitored until considered well.
Question 7: Should an accused who is found to be unfit to plead (or to lack
decision-making capacity) be subject to the section 4A hearing in the same
proceedings as co-defendants who are being tried? (Paragraph 7.44)
We agree with the CP’s response to this question.
In summary we agree that the manner in which the CP considers that the issue of
procedural unfairness would be appropriately dealt with through the proposed
implemented reforms. We agree that at present there is the risk of procedural unfairness
in relation to an accused who is unfit to plead and his or her fit to plead co-defendants,
using the accused position to their advantage.
From our client group perspective this scenario would most commonly arise in relation to
‘Gang Kids’. The hierarchy within which such gang structure operate would predicate
that at least one member if not more could potentially be identified, as an accused unfit
to plead due to mental disorder or disability in addition to any cognitive function
concerns. Such a scenario would lead to an injustice if there are not appropriate
mechanisms in place, and adequate training of legal professionals and judiciary to
understand the nature of such complex social groupings.
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