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
112. It seems to us that problems and issues relating to a ‘trial of the facts’ facts’, where D has
been found to be unfit to plead, are linked to the level of severity associated with
orders that a Court may make in D’s case, as well as concerns that D and/or the
public may need to be protected from D. It could be argued that the unfitness to
plead regime may bring to the attention of public authorities a vulnerable person
who is in need of (or seeks seeks) assistance or care. On that basis, the focus of attention
moves away from whether D did the act or not, to providing the care and
assistance that D needs/seeks /seeks. Similarly, if it is evident that D poses a risk to the
public, then it is arguable that (regardless of whether D did the act alleged) alleged that
risk should be addressed. These difficult issues might be easier to address if the
procedure for determining ‘fitness to plead’ was confined to a narrow band of
cases where D’s disability is profound profound/evident. But the he converse is true if the
threshold of ‘unfitness to plead, etc’ is set low.
113. A further concern is whether the section 4A procedure (of whatever form)
compounds incoherence that arguably exists in the trial process. We briefly look
at three situations that may ay be said to give rise to that incoherence. In relation to
the situation (ii) below, there is no disposal of the kind specified in section 5 of the
1964 Act if the trial does not proceed.
136 [2002] UKHL 5
i. First, the he existing scheme under the 1964 Act for determining uunfitness
u
to plead applies to trial on indictment but not to summary trial [see CP,
Part 8].
ii. Secondly, were ere a court to be persuaded to stay proceedings as an ‘abuse
of process’ on the grounds of a defendant’s incapacity, there would be
no trial of the fac facts ts and no disposal other than the defendant being
‘released’.
iii. Thirdly, , having regard to the decision of cases such as R v Jones, Jones
there are circumstances in which a defendant may be tried in his/her
absence including where a defendant is ill or incapacit incapacited [per Lord
Bingham, emphasis added] added]:
136
there are circumstances in which a defendant may be tried in his/her
[per Lord
6. For very many years the law of England and Wales has
recognised the right of a defendant to attend his trial and, in
trials on indictment, has imposed an obligation on him to do so.
... But for many years probl problems ems have arisen in cases where,
although the defendant is present at the beginning of the trial, it
cannot (or cannot conveniently or respectably) be continued to
the end in his presence. This may be because of genuine but
intermittent illness of the defen defendant (as in R v Abrahams (1895)
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