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 MacArthur Adjudicative Competence Study (Hoge et al.1996, 1997).
However, given that it takes 2 hours for their test to be administered by a
‘highly highly trained research assistant', ts value as a clinical, as opposed to a
research tool must remain in doubt.
61. Given the absence of a dependable and practical psychiatric test that is capable of
exposing as a sham D’s participation in the trial process (or which is not on the
“required level”), practitioners and the Courts have little option but to apply a legal
test that requires the exercise of judg judgement based (in part) on its observation of the
defendant’s behaviour and responses when, for example, givi giving ng instructions to
his/her legal representatives, as well as his/her participation in the trial process
(e.g. when giving evidence).
62. As stated above, the Commission complains
to plead notwithstanding that
her capacity to make decisions
of participation” because,
the trial process, “it is not on the required le
questions: first, what do we mean by
secondly, what is “the required
effective participation in his or her criminal trial.
position appears to be clear
75 that a defendant who is held to be fit
that his or her delusional state is such as to impair his or
her capacity to make decisions, “makes a mockery of what we know of the concept
although the defendant may appear to be engaging with
it is not on the required level”. This statement begs two
questions: first, what do we mean by “participation in the trial process
required level”? We agree that the accused has the right to
effective participation in his or her criminal trial. In the case of a child, the
position appears to be clear (SC v United Kingdom; underlining added): 76
that a defendant who is held to be fit
such as to impair his or
makes a mockery of what we know of the concept
although the defendant may appear to be engaging with
This statement begs two
in the trial process”, and
We agree that the accused has the right to
case of a child, the
75 At CP, para. 2.86,
76 [2004] ECHR 263.
28. The right of an accused to effective participation in his or her
criminal trial generally includes, inter alia, not only the right to be
present, but also to hear and follow the proceedings (Stanford Stanford v. the
United Kingdom, , judgment of 23 February 1994, Series A no. 282 282-A, A, §
26).
In the case of a child, it is essential that he be dealt with in a manner
which takes full account of his age, level of maturity and intellectual and
emotional capacities, and that steps are taken to promote his ability to
understand and participate in the proceedings (T. T. v. the United Kingdom, Kingdom
§84), including conducting the hearing in such a way as to reduce as far
as possible his feelings ings of intimidation and inhibition.
29. The Court accepts the Gover Government’s argument that Article 6§1 does
not require that a child on trial for a criminal offence should understand or
be capable of understanding every point of law or evidential detail. Given iven
the sophistication of modern legal systems, many adults of normal
intelligence are unable fully to comprehend all the intricacies and
exchanges which take place in the courtroom: this is why the Convention,
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