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
88. The Commission describe
advantage”, namely, that the legal representative appointed under s.4A(2)(b)
not bound to follow the accused’s instructions about th
should be run if he or she does not agree that those instructions are in the
accused’s interests”. 119 The Commission describe one aspect of the section 4A hearing as a
that the legal representative appointed under s.4A(2)(b)
not bound to follow the accused’s instructions about the way in which the case
should be run if he or she does not agree that those instructions are in the
This may be a “great advantage” in cases where the
defendant is unable to communicate effectively with his/her legal representative
but the statutory entitlement of the appointed representative to override the wishes
of the defendant bumps hard against the general freedom to self self-determination
(personal autonomy). It t is conceivable that a few decades ago greater latitude was
afforded to an advocate than now seems to be the case case, to exercise skill and
judgement on behalf of a lay client who could not communicate with him/her,
secure an acquittal if he/she could could. Thus in Roberts, Devlin J said: 120
as a “great
that the legal representative appointed under s.4A(2)(b) “is
e way in which the case
should be run if he or she does not agree that those instructions are in the
cases where the
defendant is unable to communicate effectively with his/her legal representatives,
the statutory entitlement of the appointed representative to override the wishes
determination
greater latitude was
exercise skill and
on behalf of a lay client who could not communicate with him/her, to
....it it is a perfectly conceivable situation, although it appears never to have
arisen in practice before, that counsel for the defence, although he cannot be
instructed by the accused, may say: “I I do not think that the prosecution can
bring any case against this accused man at all. If the they y can, then of course I
am in no position to defend it with his aid because he cannot instruct me and
cannot tell his story. But as the prosecution can make out no case, I am not
prepared to let the matter go merely on the issue wheth whether er he is fit or unfit to
plead.”
89. Devlin J indicated the steps that counsel on behalf of the accused might
take [emphasis added]: 121
Devlin J indicated the steps that counsel on behalf of the accused might wish to
In cases where the defence does not propose to challenge that the prosecution
has a prima facie case, and has no evidence which might induce a jury to
reject the evidence for the prosecution, then the convenient course is to let
the issue of fitness to plead be tried at once. I can find no authority in these
cases which would prevent counsel for the defence, who wishes to test the
prosecution's s case on the general issue, from having the right to do so and at
the same time preserving all those rights which flow to the defence from the
fact that the accused is a person, if it be so established, who is incapable of
being communicated with or instr instructing counsel for his own defence. Were it
otherwise, I think that the gravest mischief and injustice might follow. As I
said earlier in the argument, the defence might wish to tender a witness who
could prove that the accused was ten miles away at the time of the alleged
crime. It cannot, I think, be our law that, by some formality of procedure, the
defence should be prevented from laying matters of that sort before the jury,
and so achieving, if they can, for their client a verdict of not guilty guilty.
119
CP, para.6.3.
120
[1954] 2 Q.B. 329, 332; and see the commentary to this case (author unknown): “ “Question Question Whether Accused Is Fit
To Plead: Not Always Triable As Separate Issue Issue”, 17 J. Crim. L. 318, 1953.
121
But note that Roberts was not followed in Beynon [1957] 2 Q.B. 111
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