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
improve the method by which such proceedings are heard within the Magistrates’
Court.
Q10) If consultees think that there should be a mandatory fact-finding
procedure, do they think it should be limited to consideration of the
external elements of the offence or should it mirror our provisional proposals 8
and 9?
The National Bench Chairmen’s Forum agrees that the mandatory fact finding
procedure should mirror the provisional proposals at 8 and 9. This would provide the
Magistrates Court with an appropriate range of disposals depending upon the outcome
of the fact finding hearing, the circumstances pertaining to the accused and the
seriousness of the offence.
Q11) Do the matters raised in questions 8, 9 and 10 merit equal consideration
in relation to the procedure in the youth courts?
The National Bench Chairmen’s Forum is of the opinion that the matters raised in
questions 8, 9 and 10 merit equal considerations in relation to the procedure in youth
courts. As explained in question 8 the application of a capacity test is more relevant
within the Youth Court. The extended jurisdiction in the Youth Court gives rise to
more serious offences being tried than in the Adult Court and the probability of
unfitness to plead applications being increased. There are a high proportion of youths
before the court who report mental health or learning issues, and whilst these may not
lead to a finding of unfitness to plead, it would appear without question that the
procedure must be merited in the Youth Court.
The principle aim of the youth justice system, as provided by section 37 of the Crime
and Disorder Act 1998, is to prevent offending by children and young people. It is our
view that the identification and appropriate disposal of those youths who would fall to
be determined by this procedure would enhance this objective.
Q12) How far if at all, does the age of criminal responsibility factor into the
issue of decision-making capacity in youth trials?
Following the abolishment of the concept of Doli Incapax in the Youth Court the age
of criminal responsibility does not factor into the issue of decision making capacity
within Youth Court trials. The National Bench Chairmen’s Forum does acknowledge
that the accused age can be an important consideration when looking at unfitness to
plead and the child’s level of understanding. We would suggest that for children aged
10 – 14 the question of whether they can understand and follow the proceedings is a
relevant one. In rare cases, for example a youth is found to have a mental age below
the age of 10; we would suggest a procedure should be introduced to establish their
decision making capacity utilising expert evidence.
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