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
the psychiatrists was that she was not unfit to plead in the legal sense of the term
“as they understood it” and that one psychiatrist stated in a recent report that
“Psychiatric Psychiatric understanding and the law in relation to mentally ill defendants do not
always sit together comfortably.
comfortably.” The Court t described the case as illustrating “in
acute form the problems of the potential mismatch between the legal test and
psychiatric understanding in these matters. When the appellant pleaded guilty to
murder, her legal team did not feel able to suggest to tthe
he judge that she lacked
fitness to plead. She was therefore sentenced to life imprisonment
imprisonment”.
53. We doubt that it was (to to use the Commission’s words words) the “dichotomy dichotomy between
understanding and capacity capacity” that led to the problem in the case of Murray. Murray Firstly,
M had resolved to plead guilty notwithstanding the legal advice that she had
received. That is not a problem which arises from the existence or application of
the Pritchard test. Secondly, the Pritchard criteria need to be understood and
consistently applied pplied by both legal practitioners and psychiatrists. If there was a
“mismatch” then the problem does not necessarily rest at the door of the Pritchard
test. Had M’s legal advisers been able to advance a plea of ‘unfitness’ ‘unfitness’, ‘unfitness’ the plea
may (or may not) have succeeded succeeded.
54. One question, on the facts in Murray, is whether it was (or ought to have been)
open to the court at first instance to have declined to accept M’s guilty plea in the
light of the information in the reports (and in circumstances where it woul
that a plea of diminished responsibility would not have been contentious
Existing jurisprudence suggests that the powers of the trial judge to intervene is
very limited indeed: see Diamond,
observations:
67 was (or ought to have been)
guilty plea in the
and in circumstances where it would seem
that a plea of diminished responsibility would not have been contentious).
Existing jurisprudence suggests that the powers of the trial judge to intervene is
where the court made the following
67 [2008] EWCA Crim 923.
54. The e judge has a very limited duty. In Kooken, , the Lord Chief Justice
observed in answer to a submission by the defence that the judge
could raise the issue:
“We We very much doubt whether any such discretion can exist
in the judge. However it is always danger dangerous to forecast that
no possible situation could ever arise in which the judge may
not have to consider his powers in that respect. But we find it
difficult to envisage any situation where a judge could
properly call evidence to this effect in the face of the wishes
of the defendant, upon whom the choice lies and upon whom
alone the choice lies lies”
55. In Campbell (Colin) (1987) 84 Cr App R 255, it was suggested that
the judge should have left the issue to the jury. The view was
expressed that the most a jud judge ge should do was to point the issue out to
the defence and it was their decision as to whether to pursue the issue;
a similar observation was made in Straw.
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