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
suggest that cases such as Diamond
what we know to be the concept of participat
participation...is ultimately a sham in which legal professionals and the courts are
forced to collude. We return to this complaint later in this Response but the
thinking of the Commission appears to be that
primarily a medical one.
21 (and presumably Moyle) make a “mockery mockery of
what we know to be the concept of participation” and complain that the
is ultimately a sham in which legal professionals and the courts are
We return to this complaint later in this Response but the
thinking of the Commission appears to be that an assessment of capacity pacity should be
17. Given the importance that the Commission attaches to the standard psychiatric
test, it is therefore surprising to discover that the proposals are made in the absence
of what that “defined psychiatric test test” should be. Indeed, the seventh proposal is
that such a test “should should be developed developed”
experts are analysing a test which Dr Blackwood and his colleagues have devised
but that research is ongoing
ready for use in practice. E
before its value can be accurately assessed.
encouraging [CP, para. 5.3]
22 The Commission state that psychiatric
experts are analysing a test which Dr Blackwood and his colleagues have devised
but that research is ongoing. 24 It is not clear whether or when such a test would be
Even if it sees the light of day it will doubtless take time
s value can be accurately assessed. The American experience is not
[CP, para. 5.3]: 25
Given the importance that the Commission attaches to the standard psychiatric
ade in the absence
be. Indeed, the seventh proposal is
The Commission state that psychiatric
experts are analysing a test which Dr Blackwood and his colleagues have devised 23
when such a test would be
ven if it sees the light of day it will doubtless take time
The American experience is not
It has been pointed out that betw between een 1965 and 2005, some 19 psychiatric
tests have been constructed in North America for the assessment of
competence or fitness. The tests have been variously and specifically
criticised in terms of their particular limitations. Psychiatrists in England
and nd Wales have not adopted the MacArthur Competence Assessment
Tool-Fitness Fitness to Plead which was adapted for use in England and Wales.
18. Given the importance that the Commission attaches to the “psychiatric psychiatric test”, test and
upon which its proposals appear to hang, we believe that the publication of the CP
without the inclusion of a proven psychiatric test, was premature premature. . We do not know
what the Commission’s preferred option is is, or would be, in the event that a reliable
psychiatric test cannot be defined.
19. The Pritchard test is a legal test
amended), 26 test is a legal test, albeit that by virtue of s.4(6) of the 1964 Act (as
the Court shall not make a determination as to fitness to plead under
s.4(5) “except except on the written or oral evidence of two or more registered medical
practitioners at t least one of whom is duly approved approved”. The 1964 Act does not apply
to Scotland.
21
[2008] EWCA Crim 923.
22
CP, para. 5.17.
23
CP, para.5.37
24
CP, para.5.40.
25
And note the study by D.V. James, G.Duffield, R.Blizard, and L.W. Hamilton: “ “Fitness Fitness to plead. A prospective
study of the inter-relationships relationships between expert opinion, legal criteria and specific symptomatology
symptomatology”; ”; Psychological
Medicine, 2001, 31, 139-150. 150. 2001 Cambridge University Press.
26
Criminal Procedure (Insanity) Act 1964
7