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
to be raised, for example because he has a good defence on the merits.
The new Act does nothing to address the duality of the roles of the trial
advocate.
92. Like the DVCVA 2004, , the Consultation Paper does little to address the duality of
the roles of the trial advocate. Indeed, we go so far as suggesting that the
Commission’s proposals ls would have the effect of significantly increasing the
number of defendants who meet the Commission’s proposed legal test with the
consequence that more contested s.4A hearings are likely (with associated costs
and delays), coupled with an increased risk in the incidence of a conflict of interest
given the advocate’s dual role.
93. The Commission has set out its case for reform of s.4A hearings at CP para.6.11 to
6.54. It is an erudite analysis. But even if one assumes that problems associated
with the e current section 4A hearing are as many many, and as significant, significant as the
Commission believes them to be be, , this merely reinforces the desirability of ensuring
that hearings under s.4A are kept to a minimum and that it is in everyone’s interest
(particularly the accused’s) for the accused to have his/her case tried in the
ordinary way, even if that means bespoke special measures being devised and
implemented by the Court to address (if possible) the accused’s disability(ies). 123
Question 1
94. Question 1: : Do consultee consultees s agree that we should aim to construct a scheme
which allows courts to operate a continuum whereby those accused who do not
have decision-making making capacity will be subject to the section 4A hearing and
those defendants with decision decision-making capacity should be e subject to a trial with
or without special measures depending on the level of assistance which they
need?
95. We agree that the term “ “unfitness to plead” is not apt to describe the issue of
whether or not a defendant has the capacity to participate effective effectively ly in the trial.
96. We do not agree with the Commission that under “the current Pritchard
role of special measures is not considered considered”.
discussed the Pritchard test in the context of special measures but the
discussion does not mean that a consideration of s
excluded. Indeed, as we have pointed out
124 Pritchard test, the
It is true that recent cases have not
test in the context of special measures but the absence of
discussion does not mean that a consideration of such measures is irrelevant or
excluded. Indeed, as we have pointed out (above), the judges in the cases of
123
We note that Provisional Proposal 5 is that “Decision “Decision-making making capacity should be assessed with a view to
ascertaining whether an accused could undergo a trial or plead guilty with the assistance of special measures and
where any other reasonable able adjustments have been made”.
124
CP, para.4.25.
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