Unfitness to Plead Consultation Responses - Law Commission ...

Unfitness to Plead: the place to find an adequate moral and legal test for saying
‘no trial should happen’?
(Draft and preliminary) thoughts by Nicola Padfield
The Law Commission’s Consultation on Unfitness to plead is a fascinating read, well
worth exploring, and raising a huge array of troubling questions.
I: The evidence gathered by the Law Commission
(i) A catalogue of recent cases which should trouble the conscience, or at least which
raise as many questions as they resolve. Here I mention just a few 1 :
Erskine [2009] EWCA Crim 1425 (at para 2.76) In this case, it was, as the Court of
Appeal said “ overwhelmingly clear” that at the time of his trial, some 20 years
earlier, there was unequivocal contemporaneous evidence that his mental
responsibility for his actions at the time of the killings was substantially impaired. In
addition, there was contemporaneous evidence that as a result of his reduced mental
acuity, as part and parcel of his illness, the decision not to advance the defence of
diminished responsibility was irremediably flawed.
This was the case in which the Lord Chief Justice (LCJ) chose to be very critical of
the ‘practice of lengthy citation of authority’, which was neither necessary or
desirable. Having reviewed the authorities which had ‘developed a jurisprudential
momentum of their own’ (at para 40), the LCJ said that firm measures were
immediately required, at least in the Court of Appeal, to ensure that appeals can be
heard without an excessive citation of or reference to many of its earlier, largely
factual decisions.
The essential starting point, relevant to any appeal against conviction or sentence, is that, adapting
the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous
decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a
previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be
rigidly enforced.
It follows that when the advocate is considering what authority, if any, to cite for a proposition,
only an authority which establishes the principle should be cited. Reference should not be made to
authorities which do no more than either (a) illustrate the principle or (b) restate it. Detailed rules
are set out in paragraphs II.17 and II.19 of the Consolidated Criminal Practice Direction (paras 74-
76).
The Court comments on “a new
but increasing tendency” for the appellant, as an
explanation for the failure to advance
diminished responsibility at trial, to advance
1 But there are plenty of other harrowing “stories” to explore: Murray [2008] EWCA Crim 1792 (see
para 2.80 of the consultation); Moyle [2008] EWCA Crim 3059, [2009] Crim LR 86; Diamond [2008]
EWCA Crim 923 (where the the Court of Appeal point out that:
On the established test, a defendant is fit to plead in cases where his mental condition may well enable
him to advance successfully the plea of diminished responsibility, yet his mental condition is still such
that it may also prevent rational or sensible decision making as to the conduct of his defence. Once it is
concluded that the defendant is fit to plead, although it may be apparent to everyone else that there is
an
issue as to whether his decision making is materially affected by his mental condition, he is entitled
to
refuse to have his mental condition assessed (at para 46)).
1