Unfitness to Plead Consultation Responses - Law Commission ...

[Paragraph 8.37]
In principle it ought to mirror the proposals in 8 and 9 as failure to do so means that
those who are unfit to plead in summary proceedings will not have the same
opportunity to be acquitted as those subject to trial in the crown court.
(11) Do the matters raised in questions 8, 9 and 10 merit equal consideration
in relation to the procedure in the youth courts?
[Paragraph 8.68]
Yes
(12) How far if at all, does the age of criminal responsibility factor into the
issue of decision-making capacity in youth trials?
[Paragraph 8.69]
If the age of criminal responsibility remains at ten and “decisional competence” is
introduced into a reformed test for unfitness to plead then it does seem likely that
some juveniles who are currently fit to plead will be found unfit, see para. 8.67. How
many is very difficult to predict. This raises once again the issue of “developmental
immaturity” see para. 8.63. I note that in “Breaking the Cycle: Effective Punishment,
Rehabilitation and Sentencing of Offenders” 2010 the MOJ makes no mention of
increasing the age of criminal responsibility. If the age remains at ten then it follows
that more juveniles are likely to be found “decisionally incompetent than if it were to
be increased to say, twelve years of age.
Impact Assessment of Unfitness to Plead
I have the following comments relating to the above.
Page 8-9 -With regard to my finding that “in approximately 90% of cases an unfit
accused was found to have done the act on at least one count” (the actual figure
being 88.9%). While this is true I have figures in my earlier empirical studies which
reveal that for the years 1992-1996 the figure was 88% but 94% if we exclude the 8
cases where no TOF took place, see [2000] Crim LR at 540 Table 6. For the years 1997-
2001 (the uncertain column here concerns the lack of data on whether the TOF was
contested not about whether D did the act on which the data are clean) the figure was
87.8% or 91.2% if we exclude the 12 cases where no TOF took place. This might help a
little for consistency purposes. In short, I have full data in both these earlier studies
as to whether or not the D’s were found to have committed the act. See page 21 at
“Risks no 4”. On balance I think the ballpark figure of 90% is about right and is
supported by my earlier figures. So my answer to question 2 on page 22 is in the
affirmative.
Table 5 at page 9 – while there is no doubt that “the number of patients receiving a
restriction order following a finding of unfitness to plead is a very small proportion of
the total number of mentally disordered offenders who are admitted to hospital as
restricted patients” care must be taken when drawing conclusions from these
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