Unfitness to Plead Consultation Responses - Law Commission ...

Tel: Fitzwilliam College
Fax: Cambridge
E mail: CB3 ODG
Law Commission,
Conquest House,
37-38 John Street,
Theobalds Road,
London WC1N 2BQ 24 January 2011
Dear David,
Unfitness to plead
I write in response to the Law Commission’s consultation on this subject. I start from
the position that our prisons are disconcertingly full of people who suffer from mental
disorders: you have only to keep an eye on the statistics published in the Prison
Reform Trust’s Bromley Fact files, or read the Bradley Report (both of which are
cited in your Impact Assessment) to see the problem. Over the years, mental
hospitals have been reluctant to accept mentally disordered offenders: hence the
amendments to the Mental Health Act 1983, enacted in the Mental Health Act 2007,
to base civil detention not only on treatability (the efficacy of treatment) but also on
the availability of appropriate treatment. How much has really changed in practice is
unclear to me.
The big picture is important. For the last 30 years or so the emphasis of many judges,
lawyers and academics has been on the personal autonomy of the individual, and we
have been reluctant to say that people are not responsible ”just” because they suffer
from mental illness, disabilities or disorder. But it is now, perhaps, becoming more
obvious that recognising people’s autonomy can lead to deeply unfair outcomes. I
note in particular the Sentencing Council’s recent consultation on their draft Assault
guideline, which wisely asked questions about the impact of both mental illness and
lack of maturity in sentencing.
Would your proposals be an improvement on the current law? On balance, I think
this is an area which should be codified and it would be useful to replace the common
law test of capacity by a statutory test. And, as you say (para 2.43), the common law
sets too high a threshold and is inconsistent with modern trial processes.
But to me you raise much bigger questions. Of course those without decision-making
capacity should not be prosecuted! So should many other people who are not really
blameworthy … could a wider test be formulated? At the moment we rely heavily on
the police/CPS discretion not to prosecute, but this seems to me far from ideal. Many
of the cases you cite smack of injustice: Erskine, Murray etc etc. And whilst
Professor Mackay’s evidence is hugely valuable, he cannot and does not look at the
cases where ‘unfitness to plead’ proceedings are not initiated. I find it very difficult
to do as you wish to do: to look at unfitness to plead without looking at the law of