Unfitness to Plead Consultation Responses - Law Commission ...

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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
insanity. Are you making a mistake in drawing a line between the two which therefore will reinforce the existing, contentious, divide? Even more important, how can we look at this subject without looking at civil proceedings which may (or may not) be initiated as an alternative to criminal proceedings? Due process and human rights are as important in civil detention. Please find attached the outline of a paper I am developing on this subject. It remains an unpolished piece as you will see, but I hope it may contribute to the debate, and serve, with this letter, as my response to the consultation. Yours sincerely Nicky Padfield
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Unfitness to Plead Consultation Res
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CONSULTEES, LISTED ALPHABETICALLY A
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Sarkar, Sameer Searle, Geoff Sense
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o The UN Committee on the Rights of
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Rethinking the Criminal Responsibil
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asic competencies of young people a
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parliament to consider rather than
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preventing crime. Graham and Bowlin
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other areas of the law’ and this
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absolute minimum age of criminal re
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The views of the judiciary in the U
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all children who are alleged to hav
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39 Trevor Jones‘Public Opinion, P
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Charity No 1137430 Company No 60065
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Charity No 1137430 Company No 60065
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From: Bickle Andrew Sent: 10 Januar
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Comments on “Unfitness to Plead,
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8. It would be very easy to insert
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himself at trial. The Court did not
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-----Original Message----- From: Br
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Response The Society welcomes the o
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for the task in hand. This would ap
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1. Introduction “UNFITNESS TO PLE
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On the other hand, the so-called co
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The Law Commissioners, Steel House,
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Law Commission consultation on unfi
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could possibly mean that they take
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whether present at the time of the
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disposals. We consider that the ref
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difficulties may or may not be fit
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profession to treatment, the civil
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of the decision the accused must ma
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25. We consider that Provisional Pr
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Provisional Proposal 5: Decision-ma
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giving evidence, it is unlikely tha
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Provisional Proposal 7: A defined p
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42. The difficulty lies in that the
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envisages that there could be an ac
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Reply 50. We consider we have alrea
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Question 6: Are there circumstances
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uilds upon the disposal of the case
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determination of jurisdiction as ap
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age” in which term we include the
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The assumption that has been made i
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which the court is satisfied that t
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The current section 4A procedure re
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The CPS then re-reviews the case in
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cases, there should be a single tri
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magistrates/District Judges, keepin
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Law Commission Consultation paper N
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From: Enys Delmage Sent: 16 March 2
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for meaningful participation in the
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(7) A defined psychiatric test to a
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(13) In the event of a referral bac
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[Paragraph 6.153] N/A (5) Should a
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[Paragraph 8.68] YES (12) How far i
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Question 1: Do consultees agree tha
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Question 5: Should a jury be able t
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Question 7: Should an accused who i
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Question 9: Do consultees think tha
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Question 11 Do the matters raised i
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Summary of comments regarding propo
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4. Antoine probably reflects a reas
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succeed in doing so, but at the cos
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kept in a shared wardrobe at the ho
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acquittal save those arising from a
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From: Ernest Gralton Sent: 14 Decem
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then the Home Secretary, said that
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Law Commission Consultation Paper N
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Provisional Proposals 6 and 7 There
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Dear David, HHJ Wendy R. Joseph QC
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I totally agree that the test must
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Just for Kids Law: Response to the
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We agree with this approach for a r
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Provisional Proposal 6: Where a def
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Article 6 protection would also giv
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Question 6: Are there circumstances
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judges, politicians, advocates, and
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Appendix One GRISSO CRITERIA Thomas
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Justices’ Clerks’ Society Law C
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measures might have a beneficial im
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Question 9: Do consultees think tha
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Response to the Law Commission Cons
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liberating and immensely challengin
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However it is where these two areas
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Pearson was detained for three mont
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wholly agree with, focuses predomin
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Whilst this is a submission in rela
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SECTION 1 : KC RESPONSE TO PROVISIO
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Provisional Proposal 3: The legal t
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Provisional Proposal 5: Decision-ma
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that the defendant’s capacity is
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Question 2: Can consultees think of
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Provisional Proposal 8: The present
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Option 4 which looks at reform to m
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Question 5: Should a jury be able t
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Please note the exploitative scenar
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out in Crown, magistrate and youth
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In the case studies of Mr Y and Mr
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APPENDIX I Case Study: Mr A [This c
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unwell. Mr A was being seen every c
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APPENDIX II Case study: Mr Z [This
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sensitively. A lawyer was obtained
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elease accompanied by a nurse. Kids
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At this time, Mr O ceased engaging
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APPENDIX V MIND: STATICTICS: FACTSH
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per 100,000 in the general populati
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Prisoners and the Mental Health Act
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RESPONSE TO LAW COMMISSION CONSULTA
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3 Admission for treatment. (1) A pa
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(8) Do consultees think that the ca
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UNFITNESS TO PLEAD Response by the
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Example 3E UNFITNESS TO PLEAD Respo
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Law Commission consultation paper n
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Page 304 and 305: Our Comments We are not criminal pr
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Page 332 and 333: processes, and, indeed, on the comp
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Page 348 and 349: I agree. There should be a test of
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epetition of evidence or the provis
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months, and are unlikely to refer b
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Question 12: How far if at all, doe
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Consultation Proposals Provisional
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agreement on the primary issue enga
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It would of course be concerning if
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witnesses who are commissioned to u
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PO BOX 3544 Wokingham, RG40 9FA T 0
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Response to Consultation Paper on U
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Unfitness to Plead Sense Response P
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- Congenitally deafblind children a
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The deafblind population has been s
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take up to 15 minutes to read a sho
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For example - A deafblind person C
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- Allowing the deafblind person to
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RESPONSE TO THE LAW COMMISSION CONS
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g. However, In some circumstances,
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QUESTION 9 Do consultees think that
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Obviously the judge should be guide
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Question 7: Should an accused who i
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problems which arose in B & others
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Page 4 of 4
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1. Introduction Victim Support is t
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In our view, a general difficulty w
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We are in support of this provision
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Preliminary Comments Dr Eileen Viza
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3 ‘developmental immaturity’ co
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PART 9 LIST OF PROVISIONAL PROPOSAL
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7 (9) If the accused is acquitted p
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9 (9) Do consultees think that if a
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11 Other References All Party Parli
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