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
21 VLR 343 and R v Howson (1981) 74 CrAppR 172); or [other
situations] ... In all these cases the court has been recognised as
having a discretion, to be exercised in all the particular
circumstances of the case, whether to continue the trial or to
order that the jury be discharged with a view to a further tr trial tr
being held at a later date..... it is of course a discretion to be
exercised with great caution and with close regard to the overall
fairness of the proceedings; a defendant fendant afflicted by involuntary
illness or incapacity will have much stronger grounds for
resisting the continuance of the trial than one who has
voluntarily chosen to abscond abscond.
Later in his speech, Lord Bingham added that “If If the absence of the
defendant is attributable to involuntary illness or incapacity it would
very rarely, if ever, be right to exercise the discretion in favour of
commencing the trial, at any rate unless the defendant is represented
and asks that the trial should begin begin.” (para.13).
Their heir Lordships noted that “a a defendant in a criminal trial should have
the opportunity to present his arguments adequately and participate
effectively: Ensslin Ensslin, Baader and Raspe v Germany (1978) 14 DR 64, at
p.115; Stanford v United Kingdom (1994) Series A/282-A” (per Lord
Bingham, , para.8(3) para.8(3)).
114. A defendant who is absent through illness may nonetheless have provided his legal
representatives with sufficient instructions to enable a trial to proceed in his or her
absence. But the key feature is that the defendant dant is able to participate effectively
in the trial process, and this issue is context/fact specific.
115. If a defendant is unable to participate effectively in a criminal trial by reason of a
physical or mental condition then, despite the protections woven into the
procedure under nder Option 5, it is difficult to see how the defendant would truly be
able to participate effectively in a hearing of the kind proposed by the
Commission. For example, there are many cases where the material facts/answers
rest within the mind/knowledge of the accused. If the accused is unable to
communicate mmunicate those facts/answers to his/her legal representatives or to the Court, Court
fact-finders finders are left speculating as to what they might be. Expressed rhetorically,
would the accused in the cases of Pritchard (1831) and/or Dyson (1831) fare better
under the procedure proposed under Option 5? Unfortunately, ely, the CP is silent on
the issue and it provides no examples. On the other hand, if an accused is able to
participate with the assistance of special measures, then the preferred course is a
trial pursued in the ordinary way.
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