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
Dyson and Pritchard did consider measures that we would now describe as
“special measures”. In Dyson, the judge appears to have called upon
witnesses to attempt to communicate with the defendant (who was deaf and
dumb). In the case of John MM,
that JM was fit to stand trial
memory difficulties, such as the provision of frequent breaks so that matters could
be explained to him.”
125 we would now describe as
have called upon two
to communicate with the defendant (who was deaf and
one of the psychiatrists expressed the opinion
that JM was fit to stand trial “provided that measures easures were taken to cater for his
memory difficulties, such as the provision of frequent breaks so that matters could
97. The overarching consideration is whether the defendant’s trial is fair and
Convention compliant. We are not aware of complaints from the judiciary that the
Pritchard test has resulted in injustice (the CP provides no such
reports/complaints).
98. Once the court is alerted to the existence of a defendant’s physical or mental
condition and which, unless addressed, might render the defendant’s trial unfair, it
should be open to the Court to consider steps or measures that will enable the
defendant to participate effectively in the trial. Some trial judges are permitting
vulnerable defendants to give evidence through an in intermediary termediary notwithstanding
that s.104 of the Coroners and Justice Act 2009 has yet to be brought into force
(and note Part 29 of the Criminal Procedure Rules 2010, in relation to special
measures, defendant’s evidence directions, and the use of intermediar intermediaries). ies). 126
99. There may be merit in adding to
“any other relevant factor”
Act 1995 127 ). However, whether a factor is
context of the aforementioned overarching requirement that the trial is fair.
test might be that if the defendant’s disability/condition cannot be satisfactorily
accommodated by way of special measures
would be likely to be unfair
participate in the trial. 128 adding to the Pritchard test a further consideration
” (see s.53F(2)(b) of the Criminal Procedure (Scotland)
However, whether a factor is “relevant” must be judged in the
of the aforementioned overarching requirement that the trial is fair.
test might be that if the defendant’s disability/condition cannot be satisfactorily
accommodated by way of special measures (with the consequence that his/her trial
unfair) then the defendant lacks the necessary capacity
WWe
point out that in John M,
not criticise the trial judge who (on one view) expanded the factors to be
considered to determine whether D w
remarked that “to include additional tests, even if unnecessary, can scarcely lower
the standard of the test to be met when the judge had said that a failure to be able
129 consideration, namely,
of the Criminal Procedure (Scotland)
must be judged in the
of the aforementioned overarching requirement that the trial is fair. One
test might be that if the defendant’s disability/condition cannot be satisfactorily
that his/her trial
then the defendant lacks the necessary capacity to
the Court of Appeal did
not criticise the trial judge who (on one view) expanded the factors to be
considered to determine whether D was unfit to plead. The he Court of Appeal
to include additional tests, even if unnecessary, can scarcely lower
the standard of the test to be met when the judge had said that a failure to be able
125
[2003] EWCA Crim 3452, [14].
126
We point out that contrary to what is said in CP para. 2.62 our experience is that Counsel and solicitors are able to
detect psychiatric problems, or at least detect tha that t there may be such a problem that requires investigation.
127
Inserted into the Criminal Procedure (Scotland) Act 1995 by s.170 of the Criminal Justice and Licensing (Scotland)
Act 2010.
128
The Commission may wish to consider what options ought to be available to the trial judge in those circumstances,
e.g. whether proceeds may be stayed, d, or pos postponed, or to direct a ‘s.4A hearing’ of the facts/issues.
129
[2003] EWCA Crim 3452
35