Unfitness to Plead Consultation Responses - Law Commission ...

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UNFITNESS TO PLEAD Response by the Law Reform Committee of the Bar Council and the Criminal Bar Association of England and Wales UNFITNESS TO PLEAD A response to Law Commission CC.P. 197 Introduction ................................................................ .......................................................................................... .......................... 2 Opening remarks ................................ .............................................................................................................. .............. 2 Whether the proposals, if accepted, represent an improvement on the existing scheme . 2 Legal test alone or combined with a psychiatric test? ...................................................... ...................... 6 Fitness to plead, and personal autonomy ................................................................ ........................................ 10 The development of existing rules pertaining to unfitness to plead ................................... ................................ 12 Brief history of the current test of unfitness to plead ..................................................... ..................... 12 Is the Pritchard test unsatisfactory? ................................................................................ ................ 17 Potential injustice of indefinite hospitalisation .............................................................. .............................. 29 The section 4A hearing; the dual role of counsel; conflict of interest concerns ............ 31 Question 1 ................................................................ ........................................................................................... ........................... 34 Question 2 ................................................................ ........................................................................................... ........................... 36 Question 3 ................................................................ ........................................................................................... ........................... 37 Question 4 ................................................................ ........................................................................................... ........................... 41 Question 5 ................................................................ ........................................................................................... ........................... 41 Question 6 ................................................................ ........................................................................................... ........................... 41 Question 7 ................................................................ ........................................................................................... ........................... 42 Question 8 ................................................................ ........................................................................................... ........................... 42 Question 9 ................................................................ ........................................................................................... ........................... 43 Question 10 ................................................................ ......................................................................................... ......................... 43 Question 11 ................................................................ ......................................................................................... ......................... 43 Question 12 ................................................................ ......................................................................................... ......................... 43 Concluding remarks ................................ ............................................................................................................ ............ 43 APPENDIX A: Law Commission’s Provisional Proposals ............................................... ............... 45 Rudi Fortson QC, Peter Grieves Grieves-Smith, and Valerie Charbit 25 th January 2011 1
Introduction Opening remarks UNFITNESS TO PLEAD Response by the Law Reform Committee of the Bar Council and the Criminal Bar Association of England and Wales 1. The Law Reform Committee of the Bar Council Association, 1 aw Reform Committee of the Bar Council, and the Criminal Bar take this opportunity to pay tribute to the Law Commission publication of its detailed and thought thought-provoking Consultation Paper (the concerning a topic of considerable practical importance that has vexed the Courts and the Legislature ure for over 200 years. opportunity of responding to 2 and the Criminal Bar the Law Commission on the (the “CP”) the Courts Needless to say that we welcome lcome the opportunity of responding to that Paper. 2. Notwithstanding that the timetable for the submission of responses is have endeavoured to answer as many of the questions Law Commission as possible. Nevertheless, that we have made herein are provisional only as we acknowledge both the complexity and the breadth of the acknowledge that none of the members of the Working Group have been trained in, or hold a qualification in psychiatric medicine. endeavoured to pursue a principled and practical approach to the issues raised in the CP, seen from the perspective of experienced in practitioners, having regard to the information and data that we have researched 3 that have been posed by the Law Commission as possible. Nevertheless, the submissions and representations made herein are provisional only as we acknowledge both the breadth of the matters addressed in the CP. acknowledge that none of the members of the Working Group have been trained in, or hold a qualification in psychiatric medicine. 4 short, we that have been posed by the the submissions and representations made herein are provisional only as we acknowledge both the We also acknowledge that none of the members of the Working Group have been trained Nonetheless, we w have endeavoured to pursue a principled and practical approach to the issues raised in seen from the perspective of experienced in-court court criminal law rd to the information and data that we have researched. researched Whether the proposals, if accepted, represent an improvement on the existing scheme 3. Although we agree that it is desirable that the law should be “consistent with modern psychiatric thinking and wit with the modern trial process” rules of law, practice and procedure, are in need of modification, we have considerable reservations whether the Commission’s Provisional Proposals constitute a significant improvement that were all of the fourteen proposals are currently structured) less incoherent and arguably a great deal more confusing, 5 and that existing rules of law, practice and procedure, are in need of modification, we have considerable reservations whether the Commission’s Provisional Proposals constitute a significant improvement on the existing position. Indeed we suggest fourteen proposals 7 consistent with and that existing rules of law, practice and procedure, are in need of modification, we have considerable reservations whether the Commission’s Provisional Proposals to be put into effect (at least as the proposals are currently structured) the Courts would find the revised scheme no arguably a great deal more confusing, as well as unnecessarily 6 would osition. Indeed we suggest to be put into effect (at least as the vised scheme no unnecessarily 1 The Criminal Bar Association ssociation (“CBA”) represents about 3,600 employed and self self-employed employed members of the Bar who appear to prosecute and defend the most serious criminal cases across the whole of England and Wales. It is the largest specialist bar association. The high inter international national reputation enjoyed by our criminal justice system owes a great deal to the professionalism, commitment and ethical standards of our practitioners. The technical knowledge, skill and quality of advocacy guarantee the delivery of justice in our cou courts; rts; ensuring on our part that all persons enjoy a fair trial and that the adversarial system, which is at the heart of criminal justice, is maintained. 2 Noting the Criminal Lunatics Act 1800, R v Pritchard (1836) 7 Carrington & Payne 303; Rex v Dyson 7 C&P 305n, 3 Listed at para.1.35 of the CP. 4 One member of the Working Group, Valerie Charbit, specialises in mental health issues, particularly concerning defendants, She represents health authorities on restricted cases before the Mental Health Revie Review w Tribunal for which she has also been a part-time time judge since 2004. 5 CP, para.1.15. 6 CP, para.1.34. 7 Appendix A to this Response. 2
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Unfitness to Plead Consultation Res
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CONSULTEES, LISTED ALPHABETICALLY A
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Sarkar, Sameer Searle, Geoff Sense
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o The UN Committee on the Rights of
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Rethinking the Criminal Responsibil
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asic competencies of young people a
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parliament to consider rather than
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preventing crime. Graham and Bowlin
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other areas of the law’ and this
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absolute minimum age of criminal re
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The views of the judiciary in the U
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all children who are alleged to hav
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39 Trevor Jones‘Public Opinion, P
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Charity No 1137430 Company No 60065
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Charity No 1137430 Company No 60065
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From: Bickle Andrew Sent: 10 Januar
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Comments on “Unfitness to Plead,
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8. It would be very easy to insert
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himself at trial. The Court did not
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-----Original Message----- From: Br
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Response The Society welcomes the o
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for the task in hand. This would ap
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1. Introduction “UNFITNESS TO PLE
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On the other hand, the so-called co
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The Law Commissioners, Steel House,
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Law Commission consultation on unfi
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could possibly mean that they take
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whether present at the time of the
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disposals. We consider that the ref
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difficulties may or may not be fit
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profession to treatment, the civil
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of the decision the accused must ma
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25. We consider that Provisional Pr
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Provisional Proposal 5: Decision-ma
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giving evidence, it is unlikely tha
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Provisional Proposal 7: A defined p
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42. The difficulty lies in that the
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envisages that there could be an ac
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Reply 50. We consider we have alrea
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Question 6: Are there circumstances
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uilds upon the disposal of the case
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determination of jurisdiction as ap
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age” in which term we include the
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The assumption that has been made i
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which the court is satisfied that t
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The current section 4A procedure re
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The CPS then re-reviews the case in
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cases, there should be a single tri
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magistrates/District Judges, keepin
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Law Commission Consultation paper N
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From: Enys Delmage Sent: 16 March 2
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for meaningful participation in the
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(7) A defined psychiatric test to a
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(13) In the event of a referral bac
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[Paragraph 6.153] N/A (5) Should a
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[Paragraph 8.68] YES (12) How far i
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Question 1: Do consultees agree tha
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Question 5: Should a jury be able t
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Question 7: Should an accused who i
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Question 9: Do consultees think tha
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Question 11 Do the matters raised i
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Summary of comments regarding propo
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4. Antoine probably reflects a reas
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succeed in doing so, but at the cos
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kept in a shared wardrobe at the ho
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acquittal save those arising from a
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From: Ernest Gralton Sent: 14 Decem
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then the Home Secretary, said that
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Law Commission Consultation Paper N
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Provisional Proposals 6 and 7 There
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Dear David, HHJ Wendy R. Joseph QC
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I totally agree that the test must
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Just for Kids Law: Response to the
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We agree with this approach for a r
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Provisional Proposal 6: Where a def
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Article 6 protection would also giv
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Question 6: Are there circumstances
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judges, politicians, advocates, and
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Appendix One GRISSO CRITERIA Thomas
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Justices’ Clerks’ Society Law C
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measures might have a beneficial im
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Question 9: Do consultees think tha
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Response to the Law Commission Cons
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liberating and immensely challengin
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However it is where these two areas
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Pearson was detained for three mont
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Page 182 and 183: SECTION 1 : KC RESPONSE TO PROVISIO
Page 184 and 185: Provisional Proposal 3: The legal t
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Page 190 and 191: Question 2: Can consultees think of
Page 192 and 193: Provisional Proposal 8: The present
Page 194 and 195: Option 4 which looks at reform to m
Page 196 and 197: Question 5: Should a jury be able t
Page 198 and 199: Please note the exploitative scenar
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Page 206 and 207: unwell. Mr A was being seen every c
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Page 210 and 211: sensitively. A lawyer was obtained
Page 212 and 213: elease accompanied by a nurse. Kids
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Page 216 and 217: APPENDIX V MIND: STATICTICS: FACTSH
Page 218 and 219: per 100,000 in the general populati
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Page 224 and 225: 3 Admission for treatment. (1) A pa
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Further, given that some clinicians
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In addition to the above proposals,
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that defendants with mental health
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Response to the Consultation Paper
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We consider that the concerns about
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Unfitness to plead - Some Responses
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or made the omission charged and th
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(6) Are there circumstances in whic
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statistics. In 2008 there were 484
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LAW COMMISSION CONSULTATION: UNFITN
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Our Comments We are not criminal pr
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4. We have been asked to suggest or
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particular tool should necessarily
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My comments refer to the recent Con
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NATIONAL BENCH CHAIRMEN’S FORUM A
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National Bench Chairmen’s Forum T
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RESPONSE TO THE LAW COMMISSION’S
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There is a real danger in conflatin
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physical strength and sexual awaken
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The group felt that many experts’
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Tel: Fitzwilliam College Fax: Cambr
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Unfitness to Plead: the place to fi
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court proceedings” (at para 149).
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processes, and, indeed, on the comp
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of the European Court of Human Righ
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Law Commission Steel House 11 Tothi
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obligations, it would be much easie
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Response to the Law Commission’s
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fit to plead, the availability and
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disability) there should be a power
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Disposal under the Mental Health Ac
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I agree. There should be a test of
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Gray, N.S., O’Connor, C., William
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On the Friday, the day before she w
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The following Thursday at The Black
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Cases involving the learning disabl
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Graham Rogers and Associates Limite
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In this case, it is being proposed
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Being able to ‘read’ The Sun or
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test, it may also begin to indicate
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subjected to the new provisions mus
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introduction, more than ten times t
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Response to Consultation paper 197,
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emand have significant personal cos
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Where possible an individual should
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epetition of evidence or the provis
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months, and are unlikely to refer b
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Question 12: How far if at all, doe
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Consultation Proposals Provisional
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agreement on the primary issue enga
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It would of course be concerning if
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witnesses who are commissioned to u
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PO BOX 3544 Wokingham, RG40 9FA T 0
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Response to Consultation Paper on U
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Unfitness to Plead Sense Response P
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- Congenitally deafblind children a
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The deafblind population has been s
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take up to 15 minutes to read a sho
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For example - A deafblind person C
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- Allowing the deafblind person to
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RESPONSE TO THE LAW COMMISSION CONS
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g. However, In some circumstances,
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QUESTION 9 Do consultees think that
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Obviously the judge should be guide
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Question 7: Should an accused who i
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problems which arose in B & others
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Page 4 of 4
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1. Introduction Victim Support is t
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In our view, a general difficulty w
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We are in support of this provision
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Preliminary Comments Dr Eileen Viza
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3 ‘developmental immaturity’ co
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PART 9 LIST OF PROVISIONAL PROPOSAL
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7 (9) If the accused is acquitted p
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9 (9) Do consultees think that if a
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11 Other References All Party Parli
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