Unfitness to Plead Consultation Responses - Law Commission ...

strongly that there needs to be a strong mechanism for
reassessing capacity to participate as the trial progresses.
However, where it is quite clear from the outset that a case is
likely to be extremely complex, we see no reason why this
should not be a relevant factor to consider in a capacity
assessment. Therefore, despite the difficulties , we feel that it
is important to fair operation of the proposed test for
proportionality to be included in the assessment. We feel
also that in developing these concepts it will be useful to reemphasise
that this is what is meant by the “capacity test” -
which in fact involves an assessment of a number of factors -
to help overcome the common misperception that whether or
not someone has capacity is a straightforward yes or no
issue.
3. A unitary test will look at numerous factors involved in
assessing whether a defendant will have capacity to
participate. We agree that a unitary (as opposed to a
disaggregated) test of capacity would be the preferred test
but would have to be flexible enough to take into account the
possibility that the defendant might not have the capacity to
fully participate in a certain stage of the criminal proceedings
at a later date, for example if a particularly complex crossexamination
were to take place or if a complicated area of
law were to be argued. It is important that a capacity
assessment be made as soon as possible in the criminal
proceedings. Provided that a truly functional approach is
taken and appropriate special measures put into place at the
relevant times, we would hope that a large proportion of
mentally disordered defendants would be able to continue to
participate throughout the trial process. It is, however,
important that there be safeguards and robust procedures to
allow reassessment of capacity. It might be possible,
therefore, that the defendant suffering from obsessive
compulsive disorder (Example 3E) might be helped by
special measures (see below) to answer a question asked of
him by Counsel. Conversely, a defendant suffering from an
acute episode of a psychotic condition such as paranoid
schizophrenia (Example 3D) might not be able to understand
the consequences of pleading guilty even if all special
measures were put in place.
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