Unfitness to Plead Consultation Responses - Law Commission ...

Example 3E
UNFITNESS TO PLEAD
Response by the Law Reform Committee of the Bar Council
and the Criminal Bar Association of England and Wales
A suffers from obsessive compulsive disorder which is at its worst
whenever he is stressed or anxious. Whenever he is asked a question, he
feels compelled to consider the question from all angles and ruminates
obsessively about the underlying meaning of the words or phrases in tthe
t
question. He finds it impossible to come to a clear conclusion and make a
decision.
10. The Commission opines that the facts of example 3B illustrate a lack of decision
making capacity because A “will not be able to retain information or retain
sufficient information to be able to focus on a decision or on subsequent decisions
which may be related to his initial decision decision.”
their ability to retain information or to focus on a decision. Persons may genuinely
or fraudulent underestimate or exaggerate such ability.
their best endeavours, are frequently given scant/inadequate instructions from their
lay clients, but this is not necessarily indicative of a client’s lack of decision
making capacity. We cannot predict the extent to which a psychiatric report might
be sought by a legal practitioner in those circumstances
measure. The prospect of
routine applications being made to determine D’s decision
unattractive and, we believe, would constitute an unwarranted demand on scarce
resources.
15 facts of example 3B illustrate a lack of decisionwill
not be able to retain information or retain
information to be able to focus on a decision or on subsequent decisions
However, persons vary widely in
their ability to retain information or to focus on a decision. Persons may genuinely
derestimate or exaggerate such ability. Legal practitioners, despite d
frequently given scant/inadequate instructions from their
lay clients, but this is not necessarily indicative of a client’s lack of decision- decision
We cannot predict the extent to which a psychiatric report might
be sought by a legal practitioner in those circumstances, if only as a precautionary
The prospect of medical reports being requested as standard practice, practice or
ing made to determine D’s decision-making making capacity, capacity is
and, we believe, would constitute an unwarranted demand on scarce
11. Specific difficulties experienced by a defendant (e.g. the need for regular breaks to
ease stress) can be addressed
without the need for a formalised hearing to determine the extent of the
defendant’s capacity for decision
appear to envisage a formal determination of a d
making, applying a unitary
the range of different decisions and tasks required as part of a trial
“will include consideration of the extent to which spe
accused”. 17 However, the Commission
trial being “broken down fully and the decision
therefore inevitably bear some of the characteristics of a more disaggrega
approach”. 18 Specific difficulties experienced by a defendant (e.g. the need for regular breaks to
ssed – as they frequently are – on a case-by-case basis
without the need for a formalised hearing to determine the extent of the
defendant’s capacity for decision-making. But, the Law Commission’s proposals
appear to envisage a formal determination of a defendant’s capacity for decision
unitary test “that could be sufficiently wide to take into account
the range of different decisions and tasks required as part of a trial”
With respect,
Moreover, different measures might fall to be considered at different stages of the
trial process.
16 Specific difficulties experienced by a defendant (e.g. the need for regular breaks to
case basis
without the need for a formalised hearing to determine the extent of the
, the Law Commission’s proposals
efendant’s capacity for decisionthat
could be sufficiently wide to take into account
and which
will include consideration of the extent to which special cial measures will assist the
he Commission also contemplate the requirements of the
broken down fully and the decision-making making capacity test would
therefore inevitably bear some of the characteristics of a more disaggregated
disaggrega
With respect, such an approach is disaggregated in all but name.
ifferent measures might fall to be considered at different stages of the
15 CP, para. 3.17.
16 CP, para. 3.81.
17 CP, para. 3.77.
18 CP, para. 3.81.
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