Unfitness to Plead Consultation Responses - Law Commission ...

UNFITNESS TO PLEAD
Response by the Law Reform Committee of the Bar Council
and the Criminal Bar Association of England and Wales
6. There are very y many defendants whose “decision making capacity” might be
questioned by their legal advisers and other professionals (e.g. probation officers,
and social workers). . Many defendants have personality disorders, or who are
problematic drug users or alcoholi alcoholics. We are concerned that under the
Commission’s proposals, legal practitioners would be exposed to unwarranted
criticism were they not to routinely invite the Court to determine their clients’
“decision making capacity” ”.
7. It is submitted that the prospec prospect of routine applications being made is not fanciful
having regard to proposal 55,
namely, that D’s decision-making capacity “
assessed with a view to ascertaining whether an accused could undergo a trial or
plead guilty with the assistance of spec special measures”.
non-defendants and (increasingly) defendants, are already well
improvements in that regard continue to be made.
special measures have developed incrementally
controlled. We accept that there
tailored in individual cases
condition.
11 is not fanciful
“should be
assessed with a view to ascertaining whether an accused could undergo a trial or
Special measures to assist
defendants and (increasingly) defendants, are already well-developed, developed, and
improvements in that regard continue to be made. Although rules ules relating to
special measures have developed incrementally, the development pment has been
We accept that there is no reason why special measures should not be
in individual cases having regard to the defendant’s mental and physical
8. Typically a defendant’s application for sspecial
measures would be considered pre-
trial. But we would eschew a proposal that envisages a defendant’s application for
such measures being almost invariably dealt with by way of a hearing that is set
down to determine the extent of his/her decision-making capacity.
9. At CP paras. . 3.15 to 3.22, the Commission provide six examples that illustrate a
defendant’s lack of decision decision-making capacity (examples 3A to 3F).
conclusion in respect of examples 3A,
examples are illustrative of o
decision-making capacity could
12 3C 13 and 3F, 14 . 3.15 to 3.22, the Commission provide six examples that illustrate a
Such a
is unremarkable, but two
are illustrative of our concern that the proposed test for a defendant’s
making capacity could be applied in many (arguably too many) cases.
Example 3B
A is suffering from severe depression. He has no interest in interacting
with other people and says that he does not care what happens to him. He
has a disturbed sleep pattern, poor concentration and is unable to
remember things. He has difficulty focusing on specific matters and has a
poor ability to express himself verbally.
11
See CP, para. 4.27,
12
D has a mental age of a five-year-old and a very low cognitive ability. He does not understand much of what is said
to him and finds unfamiliar surroundings frightening.
13
“A is a 13-year-old old male who suffers from severe Attention Attention-Deficit Deficit Hyperactivity Disorder (ADHD). This is at its
worst when hen he is anxious. He cannot focus and is impulsive. He finds it almost impossible to remember any new
information he is given.”
14
“A is autistic and is unable to communicate with others. He can understand information and process lots of it, but
does not acknowledge others and tends to “live in his own world”.
4