Unfitness to Plead Consultation Responses - Law Commission ...

Unfitness to plead – Some Responses to the Law
Commission’s Consultation Paper
By R.D. Mackay
Professor of Criminal Policy and Mental Health, Leicester De Montfort Law School, De
Montfort University, Leicester
I have already submitted my draft article which deals with a number of issues including the
threshold test for unfitness to plead, the “trial of the facts” and a number of other issues. I will
not repeat in full these but instead will deal with points not already covered.
Paras 2.60 and 2.61 with regard to the number of unfitness findings being low see my remark
in relation to the US position
Although it is difficult to make any real comparisons about the number of unfitness findings,
the Guideline estimates that "around 12,000 U.S. defendants are found incompetent to stand
trial each year" (Ref. 1, p S55). Accordingly, as a matter of pure speculation, with its
population of around 300 million, this estimated 12,000 U.S. findings would mean 40 such
findings per million of the U.S. population per year. Thus, even in the unlikely event 1 that the
annual number of unfitness findings in England and Wales was currently 100, it would mean
that, with a population of some 54 million, this rate in turn would result in only 2 such findings
per million of the population, which is less than five percent of the rough U.S. population
average. In short, until the Pritchard criteria are revised to incorporate "decisional
competence," there is a likelihood that some vulnerable defendants will not fall within the
protective "unfitness net" as a result of the threshold's being set at too low a level. 2
I now turn to the Commission’s Proposals and Questions – my responses are
in bold.
We provisionally propose that:
(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]
1 This is now the case. See my empirical study at Appendix C.
2 R.D. Mackay, AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial:
An English Legal Perspective (2007) the Journal of the American Academy of Psychiatry and the Law, Vol 35, No
4, 501 at 503.
1