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
have the lay client’s confidence in him/her
of grievance that his/her instruction
unsurprising that the Court will be
defendant who is represented and in respect of whom no such representations are
made”. 99 have the lay client’s confidence in him/her rather than leave the client with a sense
of grievance that his/her instructions have been disregarded. It is therefore
Court will be unlikely to “pick pick up on unfitness in respect of a
defendant who is represented and in respect of whom no such representations are
A defendant who feels that his instructions are being ignored may decide
to change his representation or to act in person. In the latter situation, who w is to
protect the mentally disadvantaged defendant from his own disability? We do not
believe that the Commission’s proposals address and meet these realities.
74. We leave open the question of whether there could be circumstances in which a
judge should be empowered to order assessment and psychiatric reports on a
defendant in respect of whom the Court has concerns about his/her decision
making capacity. However, in that regard, we note that in
Parker CJ observed that it
question of unfitness can be raised not merely by the prosecution or by the
defence, but by the judge himself
CJ cited Reg. v. Beynon, 102
We leave open the question of whether there could be circumstances in which a
be empowered to order assessment and psychiatric reports on a
defendant in respect of whom the Court has concerns about his/her decision
However, in that regard, we note that in R v McCarthy
Parker CJ observed that it had been held “certainly before this Act 100
can be raised not merely by the prosecution or by the
defence, but by the judge himself”. 101 We leave open the question of whether there could be circumstances in which a
be empowered to order assessment and psychiatric reports on a
defendant in respect of whom the Court has concerns about his/her decision-
R v McCarthy, Lord
100
, that the
can be raised not merely by the prosecution or by the
In support of that proposition, Lord Parker
102 103
where Byrne J had said:
As I have e always understood the law and seen it administered, if the court is
aware of the fact that there is a preliminary issue whether the person who is
charged before the court on an indictment is insane so that he is unfit to be
tried, it is the duty of the ccourt
ourt to see that the issue is tried, even though no
application is made by the prosecution or by the defence.
75. It seems that in McCarthy McCarthy, there would have been no difficulty had the judge
merely ordered medical reports and made up his/her mind on reading them
whether an issue of unfitness to plead arose that ought to be determined. the judge could not do (at least prior to the DVCVA 2004) was was, in effect,
for himself/herself whether the defen defendant was fit to plead or not.
104 What
, to decide
99
CP, para. 2.62.
100
That is to say, the Criminal Procedure ure (Insanity) Act, 1964.
101
[1967] 1 Q.B. 68. What the judge could not do, at least prior to the DVCVA 2004, was (in effect) effect) to determine the
issue of fitness to plead himself (rather than a jury) and it is submitted that this proposition is what McCarthy is
actually authority for.
102
[1957] 2 Q.B. 111
103
[1957] 2 Q.B. 111 , 114.
104
The head-note note to the QB report of this decision reads: “The defendant, a deaf mute, was indicted for sending
offensive material by post. Before arraignment the judge remanded him for medical examination. When the
defendant appeared before the court again the judge had three medical reports and, in the defendant's absence, he
informally questioned one of the doctors as to the defendant's fitness to plead. Neither the prosecutio prosecution prosecutio nor the
defence raised the question of the defendant's fitness to plead and he was arraigned, the trial proceeded and the jury
convicted him. On appeal, on the ground that a question regarding his fitness to plead had been raised within the
meaning of section ction 4 of the Criminal Procedure (Insanity) Act, 1964, and that the judge should have caused a jury
to be empanelled to decide it.”
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