Unfitness to Plead Consultation Responses - Law Commission ...

the trial process. An advocate can assist a defendant in
understanding the information given by his or her
criminal defence lawyer and in understanding the trial
process and what is required of him or her. We are
aware of cases where an independent advocate will
attend meetings with criminal defence solicitors to help
the defendant understand advice given, ensure that the
defendant’s communication needs and disabilities are
known to the criminal defence counsel and ensure that
any questions which the defendant may have are
answered. The same advocate will then accompany
the defendant to court.
5. We consider it important that the issue of capacity be
determined as soon as possible. A case management
hearing should therefore be held at the earliest appropriate
opportunity. Such hearing would give directions as to
whether a capacity assessment ought to be made and what
special measures should be used, and perhaps also give
directions about issues that may indicate a need to reassess
capacity. We think that it would be important for a code of
practice to be drafted to consolidate the existing relevant
principles, take into account any new legal principles and
address medical knowledge and practice.
6. As well as a code of practice, we think that it is particularly
important that the judiciary and advocates have special
training in relation to mental capacity assessments and the
use of special measures. Mind has worked with the Crown
Prosecution Service on a toolkit for prosecutors and
advocates entitled “Achieving justice for victims and
witnesses with mental distress”. This may be useful when
drafting a code of practice or for training materials. We
enclose a copy for your information.
7. We can see the attractiveness of developing a single “tool” to
assess “trial” capacity and would welcome any advances to
this end. However, by definition, every person is unique and
we have concerns that no single test can ever be devised
which will cater for all. We think that it is important to identify
the main issues with which a defendant will need to cope
during the trial process. Any tool which can help in a capacity
assessment can be helpful but we do not think that any
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