Unfitness to Plead Consultation Responses - Law Commission ...

National Bench Chairmen’s Forum
The Chief Magistrates’ Office, 70 Horseferry Road, London SW1P 2AX
Tel:
E-mail:
20th January 2011
to raise the issue of the accused unfitness to plead. The defence practitioners
overriding responsibility is to act in their clients best interests. This decision will often
be based upon offence type and the likely final disposal rather than the accused
relative capacity. The introduction of a capacity based test would put more emphasis
on the defendants’ ability to understand the trial process and give the court greater
control of how the proceedings are to be conducted.
Rule 1.1 of the Criminal Procedure Rule 2010 states that the overriding objective of
the code is to deal with criminal cases justly. This includes, amongst other factors,
acquitting the innocent and convicting the guilty, dealing with the prosecution and
defence fairly, recognising the rights of a defendant, respecting the interests of
witnesses and victims, and dealing with the case efficiently and expeditiously. The
extension of the capacity based test to summary proceedings will ensure the accused
is tried justly and is entitled to raise the same capacity test irrespective of the
jurisdiction in which they are to be tried.
The creation of a capacity based test will ensure that a clear procedure will be
established within the summary jurisdiction. The current procedure is vague and can
obstruct case management. Proceedings are often significantly extended whist the
court awaits medical practitioners to produce psychiatric reports on the issue of
unfitness to plead. Once produced, the defence will often seek to utilise the report to
support an argument that the prosecution should discontinue the case on public
interest grounds, rather than to establish the grounds for the making of any order
within the Mental Health Act 1983. Only if this is unsuccessful, will the court be
requested to hear evidence and proceed to make a hospital order. This obviously
creates a delay in the proceedings whilst the defence and crown prosecution consider
their position.
In summary proceedings a higher proportion of accused appear before the court
unrepresented. The introduction of a defined capacity test will ensure the development
of appropriate case management directions and specific training. In such
circumstances consideration should also be given to provide for the appointment of a
legal representative to protect the interests of a defendant. In doing so, the overriding
objective to deal with criminal cases justly would be advanced and a consistent
approach will be achieved.
We recommend that if the capacity based test proposed for trial on indictment is to be
introduced in summary courts, appropriate investment and support should be provided
to services and practitioners whose responsibility it will be to deliver capacity test
reports to Magistrates Courts. This will be necessary to safeguard effective case
management of such proceedings and minimise the possibility of delay.
Q9) Do consultees think that if an accused lacks decision-making capacity
there should be a mandatory fact-finding procedure in the magistrates’
court?
The NBCF agrees that there should be a mandatory fact finding procedure in the
Magistrates’ Court. A formal procedure would provide consistency and significantly
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