Unfitness to Plead Consultation Responses - Law Commission ...

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UNFITNESS TO PLEAD Response by the Law Reform Committee of the Bar Council and the Criminal Bar Association of England and Wales APPENDIX A: Law Commission Commission’s Provisional Proposals Provisional Proposal 1: The current Pritchard test should be replaced and there should be a new legal test which assesses whether the accused has decision decision-making making capacity for trial. This test should take into account all the requirements for meaningful participation in the criminal proceedings. (Paragraph 3.41) Provisional Proposal 2: : A new decision decision-making capacity test should not require that any decision decisio the accused makes must be rational or wise. (Paragraph 3.57) Provisional Proposal 3: : The legal test should be a revised single test which assesses the decision- making capacity of the accused by reference to the entire spectrum of trial decisions he or she might be required to make. Under this test an accused would be found to have or to lack decision- making capacity for the criminal proceedings. (Paragraph 3.99) Provisional Proposal 4: : In determining the defendant’s decision decision-making making capacity, it would wou be incumbent on the judge to take account of the complexity of the particular proceedings and gravity of the outcome. In particular the judge should take account of how important any disability is likely to be in the context of the decision the accused must make in the context of the trial which the accused faces. (Paragraph 3.101) Provisional Proposal 5: Decision-making making capacity should be assessed with a view to ascertaining whether an accused could undergo a trial or plead guilty with the assistance of special measures and where any other reasonable adjustments have been made. (Paragraph 4.27) Provisional Proposal 6: : Where a defendant who is subject to a trial has a mental disorder or other impairment and wishes to give evidence then expert eviden evidence on the general effect of that mental disorder or impairment should be admissible. ( (Paragraph 4.31) Provisional Proposal 7: : A defined psychiatric test to assess decision-making making capacity should be developed and this should accompany the legal test as to decision-making capacity. (Paragraph 5.17) Provisional Proposal 8: : The present section 4A hearing should be replaced with a procedure whereby the prosecution is obliged to prove that the accused did the act or made the omission charged and that there are no grounds for an acquittal. (Paragraph 6.140) Provisional Proposal 9: : If the accused is acquitted provision should be made for a judge to hold a further hearing to determine whether or not the acquittal is because of mental disorder existing at the e time of the offence. (Paragraph 6.140) Provisional Proposal 10: : The further hearing should be held at the discretion of the judge on the application of any party or the representative of any party to the proceedings. (Paragraph 6.152) Provisional Proposal 11: : The special verdict should be determined by the jury on such evidence as has been heard or on any further evidence as is called. (Paragraph 6.152) Provisional Proposal 12: : Where the Secretary of State has referred a case back to court purs pursuant purs to the accused being detained under a hospital order with a section 41 restriction order and it thereafter becomes clear beyond doubt (and medical evidence confirms) that the accused is still unfit to plead, 26 the court should be able to reverse th the e decision to remit the case. (Paragraph 7.21) Provisional Proposal 13: : In the event of a referral back to court by the Secretary of State and where the accused is found to be unfit to plead, there should not be any need to have a further hearing on the e issue of whether the accused did the act. This is subject to the proviso that the court considers it to be in the interests of justice. (Paragraph 7.21) 45
UNFITNESS TO PLEAD Response by the Law Reform Committee of the Bar Council and the Criminal Bar Association of England and Wales Provisional Proposal 14: : In circumstances where a finding under section 4A is quashed and there has as been no challenge to a finding in relation to section 4 (that the accused is under a disability) there should be a power for the Court of Appeal in appropriate circumstances to order a re re-hearing re under section 4A. (Paragraph 7.59). 46
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Unfitness to Plead Consultation Res
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CONSULTEES, LISTED ALPHABETICALLY A
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Sarkar, Sameer Searle, Geoff Sense
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o The UN Committee on the Rights of
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Rethinking the Criminal Responsibil
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asic competencies of young people a
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parliament to consider rather than
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preventing crime. Graham and Bowlin
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other areas of the law’ and this
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absolute minimum age of criminal re
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The views of the judiciary in the U
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all children who are alleged to hav
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39 Trevor Jones‘Public Opinion, P
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Charity No 1137430 Company No 60065
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Charity No 1137430 Company No 60065
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From: Bickle Andrew Sent: 10 Januar
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Comments on “Unfitness to Plead,
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8. It would be very easy to insert
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himself at trial. The Court did not
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-----Original Message----- From: Br
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Response The Society welcomes the o
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for the task in hand. This would ap
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1. Introduction “UNFITNESS TO PLE
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On the other hand, the so-called co
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The Law Commissioners, Steel House,
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Law Commission consultation on unfi
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could possibly mean that they take
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whether present at the time of the
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disposals. We consider that the ref
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difficulties may or may not be fit
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profession to treatment, the civil
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of the decision the accused must ma
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25. We consider that Provisional Pr
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Provisional Proposal 5: Decision-ma
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giving evidence, it is unlikely tha
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Provisional Proposal 7: A defined p
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42. The difficulty lies in that the
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envisages that there could be an ac
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Reply 50. We consider we have alrea
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Question 6: Are there circumstances
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uilds upon the disposal of the case
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determination of jurisdiction as ap
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age” in which term we include the
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The assumption that has been made i
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which the court is satisfied that t
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The current section 4A procedure re
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The CPS then re-reviews the case in
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cases, there should be a single tri
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magistrates/District Judges, keepin
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Law Commission Consultation paper N
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From: Enys Delmage Sent: 16 March 2
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for meaningful participation in the
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(7) A defined psychiatric test to a
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(13) In the event of a referral bac
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[Paragraph 6.153] N/A (5) Should a
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[Paragraph 8.68] YES (12) How far i
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Question 1: Do consultees agree tha
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Question 5: Should a jury be able t
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Question 7: Should an accused who i
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Question 9: Do consultees think tha
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Question 11 Do the matters raised i
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Summary of comments regarding propo
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4. Antoine probably reflects a reas
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succeed in doing so, but at the cos
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kept in a shared wardrobe at the ho
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acquittal save those arising from a
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From: Ernest Gralton Sent: 14 Decem
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then the Home Secretary, said that
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Law Commission Consultation Paper N
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Provisional Proposals 6 and 7 There
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Dear David, HHJ Wendy R. Joseph QC
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I totally agree that the test must
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Just for Kids Law: Response to the
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We agree with this approach for a r
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Provisional Proposal 6: Where a def
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Article 6 protection would also giv
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Question 6: Are there circumstances
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judges, politicians, advocates, and
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Appendix One GRISSO CRITERIA Thomas
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Justices’ Clerks’ Society Law C
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measures might have a beneficial im
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Question 9: Do consultees think tha
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Response to the Law Commission Cons
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liberating and immensely challengin
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However it is where these two areas
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Pearson was detained for three mont
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wholly agree with, focuses predomin
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Whilst this is a submission in rela
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SECTION 1 : KC RESPONSE TO PROVISIO
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Provisional Proposal 3: The legal t
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Provisional Proposal 5: Decision-ma
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that the defendant’s capacity is
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Question 2: Can consultees think of
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Provisional Proposal 8: The present
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Option 4 which looks at reform to m
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Question 5: Should a jury be able t
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Please note the exploitative scenar
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out in Crown, magistrate and youth
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In the case studies of Mr Y and Mr
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APPENDIX I Case Study: Mr A [This c
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unwell. Mr A was being seen every c
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APPENDIX II Case study: Mr Z [This
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sensitively. A lawyer was obtained
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elease accompanied by a nurse. Kids
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At this time, Mr O ceased engaging
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APPENDIX V MIND: STATICTICS: FACTSH
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per 100,000 in the general populati
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Prisoners and the Mental Health Act
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Page 224 and 225: 3 Admission for treatment. (1) A pa
Page 226 and 227: (8) Do consultees think that the ca
Page 228 and 229: UNFITNESS TO PLEAD Response by the
Page 232 and 233: Example 3E UNFITNESS TO PLEAD Respo
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Page 276 and 277: (1) understand the charges (2) be c
Page 278 and 279: Further, given that some clinicians
Page 280 and 281: In addition to the above proposals,
Page 282 and 283: that defendants with mental health
Page 284 and 285: Response to the Consultation Paper
Page 286 and 287: We consider that the concerns about
Page 294 and 295: Unfitness to plead - Some Responses
Page 296 and 297: or made the omission charged and th
Page 298 and 299: (6) Are there circumstances in whic
Page 300 and 301: statistics. In 2008 there were 484
Page 302 and 303: LAW COMMISSION CONSULTATION: UNFITN
Page 304 and 305: Our Comments We are not criminal pr
Page 306 and 307: 4. We have been asked to suggest or
Page 308 and 309: particular tool should necessarily
Page 310 and 311: My comments refer to the recent Con
Page 312 and 313: NATIONAL BENCH CHAIRMEN’S FORUM A
Page 314 and 315: National Bench Chairmen’s Forum T
Page 316 and 317: RESPONSE TO THE LAW COMMISSION’S
Page 318 and 319: There is a real danger in conflatin
Page 320: physical strength and sexual awaken
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The group felt that many experts’
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Tel: Fitzwilliam College Fax: Cambr
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Unfitness to Plead: the place to fi
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court proceedings” (at para 149).
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processes, and, indeed, on the comp
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of the European Court of Human Righ
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Law Commission Steel House 11 Tothi
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obligations, it would be much easie
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Response to the Law Commission’s
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fit to plead, the availability and
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disability) there should be a power
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Disposal under the Mental Health Ac
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I agree. There should be a test of
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Gray, N.S., O’Connor, C., William
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On the Friday, the day before she w
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The following Thursday at The Black
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Cases involving the learning disabl
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Graham Rogers and Associates Limite
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In this case, it is being proposed
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Being able to ‘read’ The Sun or
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test, it may also begin to indicate
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subjected to the new provisions mus
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introduction, more than ten times t
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Response to Consultation paper 197,
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emand have significant personal cos
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Where possible an individual should
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epetition of evidence or the provis
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months, and are unlikely to refer b
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Question 12: How far if at all, doe
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Consultation Proposals Provisional
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agreement on the primary issue enga
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It would of course be concerning if
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witnesses who are commissioned to u
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PO BOX 3544 Wokingham, RG40 9FA T 0
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Response to Consultation Paper on U
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Unfitness to Plead Sense Response P
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- Congenitally deafblind children a
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The deafblind population has been s
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take up to 15 minutes to read a sho
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For example - A deafblind person C
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- Allowing the deafblind person to
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RESPONSE TO THE LAW COMMISSION CONS
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g. However, In some circumstances,
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QUESTION 9 Do consultees think that
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Obviously the judge should be guide
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Question 7: Should an accused who i
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problems which arose in B & others
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Page 4 of 4
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1. Introduction Victim Support is t
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In our view, a general difficulty w
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We are in support of this provision
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Preliminary Comments Dr Eileen Viza
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3 ‘developmental immaturity’ co
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PART 9 LIST OF PROVISIONAL PROPOSAL
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7 (9) If the accused is acquitted p
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9 (9) Do consultees think that if a
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11 Other References All Party Parli
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