Unfitness to Plead Consultation Responses - Law Commission ...

summary jurisdiction. We wholly agree with this assertion. At present magistrates courts
and Crown courts are effectively operating a two tier legal process in the manner with
which they operate in relation to unfitness to plead. Whilst there is a process at
magistrates and youth courts to deal with an accused presenting with mental disorder or
disabilities, this is by no way to be considered the same as the legal test which is used to
determined unfitness to plead at Crown court. We would consider this more than wholly
unsatisfactory. The lack of formal procedure for unfitness to plead can, in our view, be
rectified with taking on board the recommendations of the Bradley Report, especially
with regard to screening procedures (we set out rationale in relation to this in more detail
in Section 2).
The logical approach set out in the CP at paragraph 8.21 clearly mirrors the structure for
procedure that is present at Crown court. The disparity in procedure leave our clients at
risk for conviction where there is not an adequate procedure to assess the same issues
that arise at Crown court in relation to unfitness. This is a level of unfairness that should
not exist within our legal structure and furthermore one that should not allow a subgroup
within an already vulnerable section of society, children and young people, to not have
certain absolute rights that are afforded to adults, especially in light of no defence under
dolli incapax.
We refer to our case study of Mr Z at Appendix II, in relation to the manner in which
procedurally Mr Z was not able to be assisted due to the lack of an appropriate
screening and decision – making capacity test or any such legal test to ascertain his
unfitness.
With regard to mandatory fact – finding test or having a mirror of the proposals 8 and 9,
it would be, in our view, a better system where there are similar processes being carried
30