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
We leave open (pending further consultation and reflection) whether and in what
circumstances such provision should be restricted restricted. . There may be a case for
imposing a time limit, and/or that the information must be ‘new’ in the sense that it
was not available or capable of being adduced at the time of the original hearing.
It may be that some consideration would need to be given to the extent of the
court’s powers of case-disposal disposal in the event that the defendant is convicted (e.g.
where D has been hospitalised for many months).
Question 7
123. Question 7: Should an accused who is found to be unfit to plead (or to lack
decision-making making capacity) be subject to the section 4A hearing in the same
proceedings as co-defendants defendants who are being tried? (Paragraph 7.44)
124. Our provisional view is that this is a matter best determined by the trial judge on a
case-by-case basis albeit that there may be merit in a presumption that the hearin hearings hearin
are discrete. Such determinations are fact-specific specific and it would be imprudent to
lay down hard-and-fast fast rules. Option 5 presents particular problems in this regard
because of the matters that the prosecution would be required to prove, including
all the he elements of the offence(s) charged.
125. However, there may be compelling reasons why the hearings should be joined (e.g.
each hearing would be lengthy, detail detail-rich, rich, and where the strands of the evidence
involving all the defendants are so heavily interwov interwoven en that it would be in the
interests of justice for the cases of all defendants to be heard together).
126. There may be other cases (arguably the majority) where discrete hearings are
warranted because the cases can be presented separately without prejudice to the
parties and that a joint hearing might result in directions to the jury (and routes to
verdicts/findings of fact) being unduly complex, confusing, and even contradictory
(e.g. as to the burden of proof on a given charge).
Question 8
127. Question 8: Do consultees onsultees think that the capacity based test which we have
proposed for trial on indictment should apply equally to proceedings which
are triable summarily? (Paragraph 8.37)
128. We answer this question in the affirmative. There is no logical reason why the
tests ests should be different as the rationale is rooted in the defendant’s effective
participation in the proceedings with an understanding of the process.
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