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
20. As the Commission points out, “the Scottish model provides an example of a
unitary legal test which does not contemplate a particular psychiatric test or that
there will even n necessarily be any psychiatric input. It is based on
recommendations of the Scottish Law Commission Commission”.
Procedure (Scotland) Act 1995
fitness to plead in that jurisdiction
27 Section 53F of the Criminal
Procedure (Scotland) Act 1995, 28 the Scottish model provides an example of a
unitary legal test which does not contemplate a particular psychiatric test or that
n necessarily be any psychiatric input. It is based on the
of the Criminal
provides the following criteria for determining
in that jurisdiction:
(1) A person is unfit for trial if it is established on the balance of
probabilities that the person is incapable, by reason of a mental or
physical condition, of participating effectively in a trial.
(2) In determining whether a person is unfit for tria trial l the court is to have
regard to—
(a) the ability of the person to to—
(i) understand the nature of the charge,
(ii) understand the requirement to tender a plea to the charge
and the effect of such a plea,
(iii) understand the purpose of, and follow the cours course e of, the
trial,
(iv) understand the evidence that may be given against the
person,
(v) instruct and otherwise communicate with the person's
legal representative, and
(b) any other factor which the court considers relevant.
(3) The court is not to find tha that t a person is unfit for trial by reason only
of the person being unable to recall whether the event which forms
the basis of the charge occurred in the manner described in the
charge. 29
21. In Scotland there is now no
practitioners is required before a Court may find that a defendant is unfit to
plead. 30 now no restriction that written or oral evidence of two medical
practitioners is required before a Court may find that a defendant is unfit to
This is to allow the court to receive evidence on the issue from a variety
of sources [see CP, para. 5.28].
should remain on the type of evidence that is capable of supporting a finding that
an accused lacks decisionlack
capacity as a result of a condition outside the experience of psychiatrists as
experts (such as a physical condition).
for medical evidence pursuant to s.4(6) of the 1964 Act
31 The Commission believes that restrictions
ould remain on the type of evidence that is capable of supporting a finding that
-making capacity 32 but recognises that an accused may
lack capacity as a result of a condition outside the experience of psychiatrists as
as a physical condition). 33 We see merit in retaining the requirement
for medical evidence pursuant to s.4(6) of the 1964 Act 34 f two medical
practitioners is required before a Court may find that a defendant is unfit to
This is to allow the court to receive evidence on the issue from a variety
The Commission believes that restrictions
ould remain on the type of evidence that is capable of supporting a finding that
but recognises that an accused may
lack capacity as a result of a condition outside the experience of psychiatrists as
We see merit in retaining the requirement
in order to satisfy Article
27
CP, para. 5.22. Footnote 42 to this paragraph points out “The recommendations have been incorporated into the
Criminal Justice and Licensing (Scotland) Act 2010, wh which received Royal Assent on 6 August 2010.”
28
Inserted into the Criminal Procedure (Scotland) Act 1995 by s.170 of the Criminal Justice and Licensing (Scotland)
Act 2010.
29
Consider R v Podola [1960] 1 QB 325.
30
See s.170(2)(a)(i), Criminal Justice and Licensing (Scotland) Act 2010.
31
But we note and understand the reservations of the Law Commission as stated at CP para. 5,29 to 5.36.
32
CP, para.5.36.
33
CP, para. 5.36, fn 68.
34
Section 4(5) of the 1964 Act provides, “The question of fitness to be tr tried ied shall be determined by the court without
a jury. Section 4(6), 1964 Act provides, ”The court shall not make a determination under subsection (5) above
8