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
This is a straightforward case. It is overwhelmingly clear that at the time
when the appellant appeared at trial, there was unequivocal
contemporaneous evidence that his mental responsibi responsibility lity for his actions at
the time of the killing was substantially impaired. In addition, there was
contemporaneous evidence which suggested that as a result of reduced
mental acuity, not amounting to unfitness to plead, but part and parcel of
his illness, the decision not to advance the defence was irremediably
flawed. There was nothing his legal advisers could do about it, and in
reality nothing he could do about it himself himself.
28. The difficulty that faced E’s legal representatives was that E had denied
involvement lvement in the killings killings. In the Court of Appeal, E contended that his failure to
run the partial defence of diminished responsibility at trial was attributable attributabl to his
mental disorder.
29. The Commission believe that there is “a strong case for regarding suc
accused person as unfit to plead, because the accused’s mental disorder means
that he or she lacks the capacity to assess the strengths and weaknesses of his or
her legal position, even though his or her understanding of the law and of legal
process may be very good” ”.
Erskine had been unfit to plead (para. 88):
40 a strong case for regarding such an
accused person as unfit to plead, because the accused’s mental disorder means
that he or she lacks the capacity to assess the strengths and weaknesses of his or
her legal position, even though his or her understanding of the law and of legal
However, the Court of Appeal declined to hold that
Erskine had been unfit to plead (para. 88):
....a defendant is not to be deemed unfit to plead merely because he will
not accept what appears to be eminently sensible advice from his le legal gal
advisers. It is therefore for him, not his legal advisers or the court, to
decide at the time of the trial whether to advance a plea of guilty to
manslaughter on the grounds of diminished responsibility.
30. At t para. 119 of the judgment, the Court elaborated on the issue of Erskine’s fitness
to plead (emphasis added):
40 CP, para. 2.78.
Professor Eastman also examined the issue of the appellant’s fitness to
plead. He suggested that the appellant was so deluded that he was unable
rationally to address the question whether to admit his offences and
advance diminished responsibility, or to deny the offences altogether.
The evidence would support a suggestion that he was “cognitively” unfit
to plead. Professor Eastman addressed some of the difficulties arising
from the application tion of the Pritchard criteria based on a nineteenth
century view of mental disorder in the present century. This is not an
appropriate case in which to address whether and how and in what
circumstances the present law should be updated to take account of
developments in psychiatric thinking. However the importance of the
appellant’s delusional thinking, as summarised by Professor Eastman, is
that his decision to deny responsibility for killing the victims “was was
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