Unfitness to Plead Consultation Responses - Law Commission ...

fresh evidence to suggest that at the time of the trial, he was either unfit to plead, or
virtually so (see para 84) but this “tendency” is not encouraged:
Unless there is contemporaneous evidence to suggest that notwithstanding his plea and the apparent
satisfaction of his legal advisers and the judge that he was fit to tender it, and participate in the trial,
it will be very rare indeed for a later reconstruction, even by distinguished psychiatrists who did not
examine the appellant at the time of trial, to persuade the court that notwithstanding the earlier trial
process and the safeguards built into it that the appellant was unfit to plead, or close to being unfit
or that his decision to deny the offence and not advance diminished responsibility can properly be
explained on this basis (para 89).
Was the Lord Chief Justice right to choose this case to illustrate his message? It was a
worrying case, and unsurprising that counsel chose to dig deep. According to the
LCJ,
It is obviously desirable, and in accordance with principle, not least the operation of the defendant's
personal autonomy, that if it is humanly possible, the defendant should tender his own plea and
advance such defence as he wishes to advance, and that he should not be shut out from doing so on
the grounds of unfitness. Provided the defendant can understand the proceedings, he will be deemed
fit to plead (para 88).
With respect, this emphasis on ‘personal autonomy’ has, as this case shows, its
dangers. Erskine was, in the words of his counsel ‘a very strange man’ but he was
capable of giving coherent instructions and so they had not pursued his fitness to
plead at trial. As reported by the LCJ,
Professor Eastman also examined the issue of the appellant's fitness to plead. He suggested that the
appellant was so deluded that he was unable rationally to address the question whether to admit his
offences and advance diminished responsibility, or to deny the offences altogether. The evidence
would support a suggestion that he was “cognitively” unfit to plead. Professor Eastman addressed
some of the difficulties arising from the application of the Pritchard criteria based on a nineteenth
century view of mental disorder in the present century (para 119).
So Erskine served 20 years of a mandatory life sentence which everyone seems to
agree was wrong. (And where is he today?)
R (Ferris) v DPP [2004] EWHC 1221 (admin) – In May 2000, a woman who was
charged with the manslaughter of two of her children was found to be unfit to stand
trial. In June 2000, following the usual procedure, another jury presided over by
another judge found that had done the acts alleged, killed her children. In May 2001
the responsible medical officer (RMO) at the hospital to which she had been sent
informed the Home Office that she was now fit to be tried. In May 2003, following
the opinions of all the experts instructed by both prosecution and defence, a jury again
concluded that she was unfit to plead (indeed her limitations resulted from organic
damage present since birth and it appeared that she would never be fit to be tried).
The Administrative Court held that following a second finding of unfitness to plead, it
was necessary for a jury (a fourth jury!) to reconsider the issue of whether the accused
had committed the actus reus of the offence. (The real outrage in this case was why it
was ever necessary to empanel the third jury given that all the experts disagreed with
RMO that she was now fit to be tried). It is surely an understatement to say “the
mental health of the accused can deteriorate as a result of the stress occasioned by
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