Unfitness to Plead Consultation Responses - Law Commission ...

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Further, given that some clinicians appear to have difficulty in applying the relatively straightforward test of capacity set out in sections 2 and 3 of the Mental Capacity Act 2005, we believe it would be unwise to adopt an overly complex test of capacity. It follows from our concern about reliance upon any one psychiatric or psychological instrument, or instruments, that we also agree with the Commission that in most cases the test would be accompanied by a clinical interview. We do not agree with the Commission’s proposal that the decision making capacity of the accused can only be determined on the evidence of two medical practitioners, one of whom must be approved under section 12 of the Mental Health Act 1983. An assessment of mental capacity should be undertaken by professionals who are skilled and experienced in assessing disabilities relevant to capacity. Experience has shown that the fact that a psychiatrist is approved under s.12, for example, does not necessarily imply that he or she has such skills, and there is little evidence also to support the contention that medical practitioners who are not psychiatrists possess such skills. Further, some psychologists do possess such skills. Given that we believe that both psychologists and psychiatrists should be able to provide the court with evidence of capacity, it follows that we agree with the Government’s view that the concern of the Joint Committee on Human Rights that the use of evidence from psychologists is misplaced (para.5.35). 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) We agree with the Commission’s analysis of the problems surrounding the Section 4A hearing, which although designed to ascertain whether a person who is unfit to plead did the act, cannot adequately take into account cases where the offence charged does not lend itself readily to a neat division of the conduct and fault elements. We agree that the problem with the case of Antoine is that it requires a strict division between the conduct and fault elements of the offence, and that the reality is that it is not always possible to disregard the mental state of the accused for the purpose of ascertaining whether he or she had done the ‘act’. Like the Commission, we prefer option 5. We agree that the procedure should be such that, in so far as is possible, all the elements of the offence are considered, with the prosecution having the burden of proof in this regard. We agree that in determining whether all elements of the offence are proved, it should be possible to consider any defence/s that may be open, in so far as this is consistent with the fact that decisions about the section 4A hearing are made by the accused’s appointed legal representative. However, we query whether ‘sufficient evidential basis’ is too narrow a test, and that the advocate should be able to explore any possible defence that may be open on the facts of the case. This could perhaps be formulated as ‘any reasonable defence’ possibly open on the facts of the case. In our view, the test needs to be wider than a sufficient evidential basis to enable the possibility of a defence to be explored, given that the advocate will not have the advantage or assistance of their client’s instructions. © The Law Society 2011 Page 5 of 10 For information on alternative formats go to http://www.lawsociety.org.uk/accessibility.law
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 time of the offence. (Paragraph 6.140) We agree that if the accused is acquitted there should be provision for the judge to hold a further hearing to determine whether or not the acquittal was because of a mental disorder existing at the time of the offence. 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) We agree with this proposal. 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) We agree with this proposal. Provisional Proposal 12: Where the Secretary of State has referred a case back to court pursuant 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, the court should be able to reverse the decision to remit the case. (Paragraph 7.21) We agree with this proposal. 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 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) We agree with this proposal. Provisional Proposal 14: In circumstances where a finding under section 4A is quashed and there has 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-hearing under section 4A. (Paragraph 7.59) We agree with this proposal. © The Law Society 2011 Page 6 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
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3 Admission for treatment. (1) A pa
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(8) Do consultees think that the ca
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Page 276 and 277: (1) understand the charges (2) be c
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 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
Page 324 and 325: The group felt that many experts’
Page 326 and 327: 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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