Unfitness to Plead Consultation Responses - Law Commission ...

RESPONSE TO THE LAW COMMISSION’S
CONSULTATION PAPER 197: UNFITNESS TO PLEAD
On behalf of the National Steering Group with Responsibility for
Health Policy on Offenders with Learning Disability
I am responding on behalf of the National Steering Group with responsibility for
health policy on Offenders with Learning Disability. The Group is chaired by the
Department of Health but draws its membership from other Government
Departments and the Third Sector. We have considered the various references to
Learning Disability in the text of the Consultation Paper.
Re 1.34 Provisional Proposal 1
We agree with the need to take into account all the requirements for meaningful
participation in criminal proceedings, in accordance with the European Convention of
Human Rights, and the case law that supports it. In assessing capacity where there
is a learning disability, it is essential that the communication skills of the accused,
and their ability to communicate effectively, are also taken into consideration.
Re 1.34 Provisional Proposal 2
It is important that the accused fully understands information given, and this is in
some way checked where a learning disability may be present. Support should be
provided by appropriately qualified practitioners. They should have strong
communication skills aimed at people with a learning disability. The use of
intermediaries as for vulnerable witnesses appears to be a minimum requirement.
Re 1.34 Provisional Proposals 3 & 4
We agree that there should be a revised single test to assess the decision-making
capacity of the accused relevant to all the trial decisions that they may be expected
to take. If the accused does not have the capacity to participate fully and effectively
in all aspects of the trial (supported as required by special measures and reasonable
adjustments), then a ‘fair’ trial does not appear to be feasible.
G:\Criminal\Fitness to Plead and insanity\FTP\Consultation responses\NGOs\National Steering Group for Offenders
with LDs\T; National Steering Group with Responsibility for Health Policy on Offenders with Learning Disability.doc