Unfitness to Plead Consultation Responses - Law Commission ...

We consider that the concerns about a joint trial are alleviated by the
protective factors envisaged by the reformed section 4A; particularly the
need to prove all elements of the offence and the appointment of a
representative for the accused. There are clear public interest issues in
having a joint trial in such circumstances; not least the benefit to
witnesses, delay and costs.
8. 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?
We consider that the new test should apply equally on summary trial.
The CP rightly identifies the fact that there is no standard test to be
applied in the Magistrates’ Court when determining this issue. However,
we consider that if the new test is applied to courts of summary
jurisdiction this will greatly increase the number of pre trial hearings
and will impact on delay. There is a real issue in the youth court,
particularly as to the appropriateness of the disposals available if the
court does determine an accused unfit for trial. In many cases it will be
plain from the outset that a hospital order will not be an appropriate
disposal and yet the court will still be obliged to embark on the section
4A process, with all the attendant stress and anxiety caused to
witnesses (who may well be children/young people) and the accused
and his/her family. For example, an accused aged 15 with a mental age
of six may be charged with a sexual offence. As a result of the charging
process Social Services and CAMHS become involved with the young
person and his/her family and significant measures are put in place in
the community to manage the young person within the community. If the
authorities are satisfied that this community package is enduring and
appropriate to the risks involved a hospital order is unlikely to be
recommended.
We note that Section 24 Domestic Violence, Crime and Victims Act 2004
amends Section 5 Criminal Procedure (insanity) Act 1964 to allow the
crown court to make a supervision order on a finding of unfitness to
plead; there may be merit in considering a disposal of this nature in
courts of summary jurisdiction, particularly the youth court where many
such cases to do not meet the criteria for a hospital order but may well
merit a supervision order.
If the capacity based test is to apply in the magistrates’ court (including
the youth court), we would suggest that such cases are only heard by a
District Judge (Magistrates’ Courts) due to their potential complexity
and the need for judicial continuity in dealing with pre-trial case
management issues.
9. Do consultees think that if an accused lacks decision-making capacity
there should be a mandatory fact-finding procedure in the magistrates’ court?
3