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Law Commission consultation paper no 197 ‘Unfitness to plead’ Law Society response to the Law Commission’s Summary of provisional proposals and questions January 2011
LAW COMMISSION CONSULTATION PAPER No 197 ‘UNFITNESS TO PLEAD’ LAW SOCIETY RESPONSE TO THE LAW COMMISSION’S SUMMARY OF PROVISIONAL PROPOSALS AND QUESTIONS Introduction The Law Society is the representative body for over 140,000 solicitors in England and Wales. It negotiates on behalf of the profession, and lobbies regulators, Government and others. It welcomes the opportunity to respond to this consultation paper. This response has been prepared on behalf of the Law Society by members of its specialist Criminal Law, and Mental Health and Disability Committees. The Criminal Law Committee is drawn from a wide range of backgrounds, including a number of prosecution and defence solicitors, together with a member of the Justice’s Clerks Society, and an academic lawyer. Some members of the Committee hold part-time judicial office. The Mental Health and Disability Committee is made up of lawyers practising in the fields of disability discrimination, mental health, mental capacity and community care on both the claimant and respondent side and also has members from other professions. The diversity of the Committees’ compositions is intentional. The Law Society welcomes the Law Commission’s consultation paper in relation to unfitness to plead. We agree that the law as it presently stands is out of date, and in need of reform. We welcome the paper’s emphasis on ensuring that people who suffer from a mental illness or impairment are treated fairly by the criminal justice system, that the test for unfitness should be one centred around decision making capacity, and that the issue of whether they are able to effectively participate in criminal proceedings is paramount. We also welcome the fact that the proposals aim to make the test for capacity to participate in a criminal trial mirror the test applicable in the civil context. Here follows our view of the provisional proposals and consultation questions. 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-making capacity for trial. This test should take into account all the requirements for meaningful participation in the criminal proceedings. (Paragraph 3.41) The Law Society agrees that the current Pritchard test is outdated, does not ask the right questions and is generally unfit for purpose. We agree that a new test which assesses the accused decision-making capacity for trial, and which takes into account the need for the defendant to meaningfully participate in the criminal proceedings, would be far preferable. In the case of R v John M [2003] EWCA Crim 3452 the Court of Appeal approved the trial judge’s directions to the jury that the defendant must be capable of doing 6 things, namely: © The Law Society 2011 Page 2 of 10 For information on alternative formats go to http://www.lawsociety.org.uk/accessibility.law
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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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RESPONSE TO LAW COMMISSION CONSULTA
Page 224 and 225: 3 Admission for treatment. (1) A pa
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Page 228 and 229: UNFITNESS TO PLEAD Response by the
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Page 280 and 281: In addition to the above proposals,
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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
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Page 304 and 305: Our Comments We are not criminal pr
Page 306 and 307: 4. We have been asked to suggest or
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Page 310 and 311: My comments refer to the recent Con
Page 312 and 313: NATIONAL BENCH CHAIRMEN’S FORUM A
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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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