Unfitness to Plead Consultation Responses - Law Commission ...

Charity No 1137430 Company No 6006552
Background
5. The Youth Justice & Criminal Evidence Act 1998 S 16 introduced special measures
for support and assistance from a registered intermediary to young witnesses, other
than the accused.
6. The C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) (03 November 2009) ruling
states that both young witnesses and defendants should be serviced.
7. The Coroners and Justice Act 2009 extended the right of support from an
intermediary to vulnerable defendants in court. No implementation date has yet been
specified however; the use of registered intermediaries is entirely at the court’s
discretion moreover.
8. Omission of services by a registered intermediary is the legal right of children, aged
17 years and below, currently withheld from child defendants. Coincident with the ‘net
widening’ effect of a reduction of the age of criminal responsibility, the result has
been that incarceration is the backstop for lack of diagnosis of children with Special
Education Needs (SEN), who come to the notice of police. Combined with the
absence of remedial provisions in mainstream secondary schools, the net effect is
that learning disabled children are deemed acceptable casualties of a results-driven
culture which is failing a significant cohort of the school-aged population.
9. Many candidates for the youth justice system fall under the broad category of SEN,
but their needs - as defined according to the Education Act 1996 SEN code of
Practice v - are ignored or become ‘lost’ in their journey through the criminal justice
system. Notwithstanding that the child’s parents may have fought tooth and nail vi vii to
obtain a Statement - the direct result of a lack of sufficient financial resources within
Local Authorities’ to fulfil statutory obligations re diagnosis – leaving a fall-back
position of diagnosis in police custody, or jail.
10. The Centre for Mental Health with the YJB, are developing support for young people
detained in police custody; this is far too late however.
Questions 8-11: Do consultees think that the capacity based test which we have
proposed for trial on indictment should apply equally to proceedings which are triable
summarily? etc
11. The proposal is consistent with a process-driven, criminalising system of juvenile
justice, with little or no focus towards effective outcomes for young people involved in
low level crime; it does not allow an exit route from the criminal justice system for
children suffering from a learning disability and retains the default of custodial
sentencing as a remedy for breaches arising from offences committed by such
children, that did not warrant custody in the first instance.eg ASBOs.