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
determined not simply by wishing to avoid re responsibility sponsibility per se for the
killing, and to avoid the consequences of doing so within the English
justice system which was trying him, but to avoid a consequence which
arose in his mind from his psychosis… psychosis…if a defendant is deluded about
matters directly related lated to his choice of plea, it might reasonably be
argued that he is disabled as regards fitness to plead”.
31. We touch upon self-determination determination later in this Response
is sufficient to identify the cases of
that bring into focus the tension that can exist between the right of a defendant to
make his own decisions as to plea etc., and his capacity for making decisions in his
best interests (or which are, at least, rational
41 but, for the moment, it
is sufficient to identify the cases of Diamond, 42 and Murray 43 as further
that bring into focus the tension that can exist between the right of a defendant to
make his own decisions as to plea etc., and his capacity for making decisions in his
or which are, at least, rational). 44
but, for the moment, it
examples
that bring into focus the tension that can exist between the right of a defendant to
make his own decisions as to plea etc., and his capacity for making decisions in his
32. Although the Law w Commission’s proposals lower the threshold for determining
whether a defendant is unfit to plead, the Court would remain bound to decide
whether a given defendant’s condition has ‘disabled’ him with regards to his
choice of plea or choice of decision decision. It is not inevitable (as the Commission
appears to believe) that 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 position”. position
D’s mental disorder may demonstrate that circumstance, or it may not.
45
33. We note that in the cases of Erskine, Murray, and Diamond, the partial defence of
diminished responsibility esponsibility was in issue, and involved defendants whose psychiatric
disability was profound. . Such cases are complex on their facts. Whether Wheth the
difficulties encountered in each of those cases would have arisen had the sentence
of life imprisonment for murder not been mandatory, is debatable. But such cases
are thankfully rare. The Commission has not alluded to decided cases where an
offence other than murder has resulted in injustice by reason of the defendant’s
lack of decision-making making capacity.
The development evelopment of existing rules pertaining to unfitness to plead
Brief history of the current test of unfitness to plead
34. An historical sketch of the law on unfitness to plead is helpfully presented by the
Commission at paras. 2.2 to 2.42 of the Consultation Paper. We do not suggest
that the historical narrative is inaccurate in any respect but we do seek to give our
41
See the discussion under the heading “Is Is the Pritchard test unsatisfactory
unsatisfactory?”
42
[2008] EWCA Crim 923.
43
[2008] EWCA Crim 1792.
44
We make it clear that references to the he masculine include the feminine gender gender.
45
CP, para. 2.78, , underlining has been adde added.
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