Unfitness to Plead Consultation Responses - Law Commission ...

particular tool should necessarily be mandatory as,
ultimately, the judge will decide the issue. We do, however,
consider that the existing law, whereby the opinions of two
medical practitioners are required before a finding of
unfitness to plead can be made, should remain as this
provides protection to the defendant.
8. Provisional Proposal 6: We agree that a defendant who
wishes to give evidence should also be allowed to provide
expert evidence on the effect that his or her mental
impairment might have on his or her demeanour in the
witness box. However, we are interested to see responses
from criminal practitioners about whether doing so may be
counter-productive. We also have experience from other
areas that shows how openness about a mental health
condition may not lead to the level of understanding
expected, and this in turn increased the individual’s distress.
There is still a good deal of work to be done to reduce stigma
in relation to mental health conditions. We would propose
mental health awareness training for the judiciary and other
court staff. This may assist the trial judge in instructing jurors
in his or her summing-up.
9. We would like to hear responses indicating how many
vulnerable defendants will be deemed unfit for trial under any
new proposals. The aim, of course, ought to be to increase
that number where the defendant is genuinely vulnerable
despite the availability of special measures and to identify
properly when a defendant becomes vulnerable during a
trial.
10. The procedure under section 4 of the Criminal Procedure
(Insanity) Act 1964 as amended provides for determination of
the defendant’s capacity to be tried. It is therefore not a
criminal trial. However, the procedure under section 4A
which provides for a “trial of the facts” is, in our view, very
different and is effectively a quasi criminal trial. We therefore
do not agree with the decision in Re H that Article 6 of the
European Convention on Human Rights is not engaged and
we would hope that this consultation will result in section 4A
hearings which safeguard article 6 rights for vulnerable
defendants. Moreover, the court can give a defendant an
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