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
55. The Commission cite Moyle
to a defendant who has a serious mental disorder
The appellant had given evidence at trial
create doubts about his ability to understand questions put to him and to give
answers he saw fit to give
The Court did not find that his conduct at trial, coupled with the medical evidence,
demonstrated that he was unfit to plead (para. 40).
68 as a further illustration of an “anomaly” in relation
has a serious mental disorder but who remains fit to plead. plead
The appellant had given evidence at trial “and did so in a way which does not
create doubts about his ability to understand questions put to him and to give
answers he saw fit to give” and demonstrated “a tactical awareness”
The Court did not find that his conduct at trial, coupled with the medical evidence,
unfit to plead (para. 40).
69
and did so in a way which does not
create doubts about his ability to understand questions put to him and to give
(para.39).
The Court did not find that his conduct at trial, coupled with the medical evidence,
56. We suggest that it is doubtful whether the result would have been differe
Moyle even if the legal test was defined
heart of the Commission’s proposed legal test is the concept of decision
capacity: “in our view it is not possible for an accused to have meaningful
participation in his or her trial unless he or she can perform certain tasks or make
decisions”. 70 We suggest that it is doubtful whether the result would have been different differe in
even if the legal test was defined as the Law Commission proposes. proposes At the
heart of the Commission’s proposed legal test is the concept of decision-making
decision
in our view it is not possible for an accused to have meaningful
in his or her trial unless he or she can perform certain tasks or make
But, on that basis, Moyle had been able to perform such tasks.
57. The case of Diamond, 71 cited by the Commission,
defendant who pleaded not guilty to murder rather than plead the partial defence of
diminished responsibility.
to set aside his conviction. At para.46 of the judgment, the Court made the
following observations (among o
72 was another instance of a
ded not guilty to murder rather than plead the partial defence of
D had made a tactical decision and the Court declined
to set aside his conviction. At para.46 of the judgment, the Court made the
following observations (among others):
On the established test, a defendant is fit to plead in cases where his
mental condition may well enable him to advance successfully the plea of
diminished responsibility, yet his mental condition is still such that it may
also prevent rational or sensible decision-making making as to the conduct of his
defence. Once it is concluded that the defendant is fit to plead, although it
may be apparent to everyone that else that there is an issue as to whether
his decision making is materially affected by his me mental ntal condition, he is
entitled to refuse to have his mental condition assessed (absent an
application under s.35 of the 1983 Act). The trial proceeds on the basis of
the instructions given not to advance a defence of diminished
responsibility, with the ris risk k that at some future stage, a point will be taken
on his capacity to give the instructions when the essential
contemporaneous medical evidence is lacking.
58. In a hard-hitting hitting passage, the Commission suggest that cases such as Diamond
make a “mockery mockery of what we know of the concept of participation”. participation The
Commission even alleges “ “collusion” (CP, para.2.86; emphasis added):
68
[2008] EWCA Crim 3059.
69
CP, para.2.82- 84.
70
CP, para.3.35.
71
[2008] EWCA Crim 923.
72 CP, para. 2.85.
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