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 do any one of the six things would suffice tto
o render the appellant unfit to stand
trial” [27].
100. Although the issue of a defendant’s capacity to stand trial will often arise and be
determined pre-trial, trial, there may be circumstances in which the issue arises during
the trial, or at the point of sentenc sentencing ing or the making of determinations in
confiscation proceedings.
101. We are firmly of the view that the section 4A hearing should continue to be by
judge and jury. We were less united on the question of whether the issue of
‘unfitness’ should also be determi determined ned by a jury. One member of the Group makes
the powerful point that the proposed new test is broader than the Pritchard criteria
with the result that there would be more contested hearings, and that the
importance of the outcome is a highly material consideration.
Question 2
102. Question 2: Can consultees think of other changes to evidence or procedure
which would render participation in the trial process more effective for
defendants who have decision decision-making making capacity but due to a mental disorder
or other impairment require additional assistance to participate? (CP.
Paragraph 4.31)
103. Earlier in this Response we posed the question whether there might be
circumstances in which a judge should be empowered to initiate an examination of
the defendant’s mental or physical condition for the purpose of determining
whether he or she has decision decision-making capacity. We provisionally state that there
may be some merit in vesting the Crown Court with powers similar to those
available in Magistrates’ Courts, to deal with de defendants with a mental or physical
condition: see section 37(3) of the Mental Health Act 1983, and section 11(1) of
the Powers of Criminal Courts (Sentencing) Act 2000. 130
Earlier in this Response we posed the question whether there might be
circumstances in which a judge should be empowered to initiate an examination of
physical condition for the purpose of determining
We provisionally state that there
may be some merit in vesting the Crown Court with powers similar to those
fendants with a mental or physical
condition: see section 37(3) of the Mental Health Act 1983, and section 11(1) of
104. We consider that there may be cases where the defendant and the court would be
assisted ted were a psychologist or psychiatrist to attend the hearing(s), perhaps acting
as an intermediary, or to alert the court to difficulties that ought to be addressed in
order that the proceedings are fair. We note that during the highly publicised trial
130 See CP, paras. 8.4 to 8.7.
36