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
12. In cases where the defendant faces more than one indictment, to be tried at
different courts, the same medical condition coupled with the same submissions
with regards to capacity, could be canvassed before different tribunals with
(potentially) different outcomes. How courts should approach the issue of a lack
of decision-making king capacity, where there are other (or parallel) proceedings, is not
canvassed in the CP.
13. Breaking down the trial into parts, and applying a decision decision-making making test in relation
to each part, might (conceivably) result in a defendant being held to have capacity cap
to plead “guilty” but yet not have capacity to be tried in the event that he/she
pleaded “not guilty”. Our tentative tentative/provisional view is that such an outcome
would be undesirable, , and that a process that permitted such an outcome might be
vulnerable to abuse by some defendants who choose to make a tactical decision to
plead “not guilty” whilst playing the ‘medical card’ in the hope that, , for example,
(a) a full trial, , perhaps leading to conviction, might be avoided, or (b) the
defendant can justify not ot giving evidence, or (c) the defendant can avoid adverse
inference directions.
Legal test alone or combined with a psychiatric test?
14. The Commission proposes that there should be both a “legal test” and a
psychiatric test” to assess D’s decision making capacity (proposal 7).
the subject matter of the CP is one of mental
Commission should attach considerable
representations made to it by eminent psychiatrists
plank of the Commission’s proposals that
should be the “standard means of assessing whether the accused has decision
making capacity in accordance with the legal test
19 and a “defined
Given that
the subject matter of the CP is one of mental “capacity” it is unsurprising that the
should attach considerable importance and value to the
representations made to it by eminent psychiatrists. But it is evidently a central
plank of the Commission’s proposals that the psychiatric test (as yet undefined)
standard means of assessing whether the accused has decision-
making capacity in accordance with the legal test” [CP, para. 5.16].
15. The Commission say that the psychiatric test would not be the only part of the
assessment process and that in most cases the test would also be accompanied by a
clinical interview. But iit
t seems plain that the Commission envisages envisage the
psychiatric test being the he primary means by which the legal test is judged to be
satisfied or not.
16. Precisely what hat role there would be for judicial input into the assessment of
defendant’s capacity is unclear. In Moyle,
conduct at trial, which in conjunction with the medical evidence, did not
demonstrate that M was unfit to plead.
20 assessment of a
the Court of Appeal had regard to M’s
which in conjunction with the medical evidence, did not
demonstrate that M was unfit to plead. But, at CP para. 2.86, the Commission
19 See CP, para.5.14 to 5.17/
20 [2008] EWCA Crim 3059.
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