Unfitness to Plead Consultation Responses - Law Commission ...

Comments on “Unfitness to Plead,” Law Commission Paper No. 197 (TSO October 26,
2010)
Richard J. Bonnie 1
1. As the Commission observes, legal criteria bearing on the capacity of the accused to
participate meaningfully in his or her own defence should be functional (task-specific) and
sensitive to context. Clearly, capacity to make decisions in the course of the proceedings, both
before and during a trial, should be included among the tasks covered by the legal criteria. The
CP‟s provisional recommendation that the Pritchard test be replaced with a new test
encompassing a broader range of tasks, particular those relating to decision-making, is wellgrounded
in legal theory and modern forensic science.
2. However, it would be a mistake to reframe the criteria exclusively in terms of decision-making
capacity as the Commission provisionally proposes to do. Most importantly, the revised legal
criteria should explicitly include requirements that the accused (1) understand the nature and
potential consequences of the criminal proceedings and (2) have the capacity to assist counsel.
As I have explained elsewhere, 1 these two “foundational” requirements are conceptually distinct
from the ability to make decisions regarding the defence or disposition of the case.
3. The requisite “understanding” of the process should include both factual and rational
understanding, as described by the Dusky test in the USA. To give a simple example, an accused
with grandiose delusions may believe that the criminal proceedings are being carried out by the
authorities at God‟s command and for his or her benefit and may not therefore have a rational
understanding of his or her own legal jeopardy. Similarly, the “capacity to assist counsel” refers
both to a factual understanding of the role and obligations of counsel as well as the ability to act
rationally on that understanding in one‟s own case. For example, an accused with paranoid
delusions may regard his or her lawyer (or any lawyer) as being complicit in a conspiracy against
him or her and may be so distrustful and guarded as to impede satisfactory interaction with the
attorney.
4. Based on the analysis set forth in the CP, I infer that the Commission would agree with my
observations in paragraphs 2 and 3 above that these deficits would amount to “unfitness” to
plead or stand trial. However, it appears that the Commission incorrectly assumed that any
person who lacks understanding of the proceedings or the capacity to assist counsel would also
lack decision-making capacity as defined in the CP, and that these criteria would therefore be
superfluous. (See, for example, CP Paragraphs 3.40 and 3.41.) In other words, the Commission
appears to have assumed that these two functional capacities are subsumed within decisional
capacity, and that decisional capacity always includes what I have referred to as a rational
understanding of the proceedings, appreciation of one‟s own legal jeopardy and a rational
Harrison Foundation Professor of Law and Medicine and Director of Institute of Law, Psychiatry and Public
Policy, University of Virginia
1
R.J. Bonnie, “The Competence of Criminal Defendants: A Theoretical Reformulation,” (1992) 10 Behavioral
Sciences and the Law 291; R.J. Bonnie, “The Competence of Criminal Defendants: Beyond Dusky and Drope”
(2003) 47(3) University of Miami Law Review 539.
1