Unfitness to Plead Consultation Responses - Law Commission ...

Well worth a read is Rogers et al’s analysis 6 of twelve interviews conducted by a
forensic psychiatrist with senior criminal barristers. The conclusions are both
powerful (the authors “gained a strong sense that urgent changes are required”) and
intriguing (for example, they point out that a person who pleads not guilty may
require greater capacity than the person who pleads guilty (since they need to
understand the implications of that plea). Of course, fitness to plead is different to
fitness to stand trial, and the level of fitness may vary according to the complexity of
the case.
Then there’s Scott-Moncrieff and Vasall-Adams useful article in Counsel magazine
which points out that,
It is astonishing and possibly unlawful, that the civil law test for capacity and the criminal law test
for unfitness to plead are contradictory. A person who would not have capacity under the Mental
Capacity Act, to take relatively trivial decisions about his life might be found fit to plead in the
criminal law context and be expected to make such important decisions as to whether to plead
guilty or not guilty 7 .
Many others, of course, have argued against the current rules, particularly that the test
is too restrictive 8 .
(iii) Some of the Law Commission’s most interesting evidence is to be found in a
series of appendixes:
- Appendix A summarises mental health legislation (usefully – but more could
be done to compare routes in to and out of civil and criminal/penal institutions).
- in Appendix B, the Commission reproduces the entirety of a summing up in
the repeat “section 4A” of Patrick Sureda in 2008 9 . The Law Commission point out
that “it was apparent to the judge (His Honour Judge Jeremy Roberts QC) and the jury
that the resurrection of the court proceedings was having a hugely damaging effect on
Mr Sureda’s mental health which disintegrated completely as the hearing progressed
(see B.3)”. The reader is given plenty of food for thought….
- Appendix C contains very useful data on findings of unfitness to plead
- Appendix D is the Impact Assessment. We learn more details on the best estimate the
Commission can make on the impact that their proposals would have – and the best
guess seems to be that possible implementation of the proposal would lead to some
overall savings. Such exercises
are of course fraught with difficulties, and it is
difficult to cost such factors
as the negative effect on mental health of different
6
TP Rogers et al, “Reformulating the law on fitness to plead: a qualitative study” (2009) 20(6) Journal
of Forensic Psychiatry and Psychology 815
7
L Scott-Moncrieff and G Vassall- Adams, “Yawning gap: capacity and itness to plead” Counsel
Magazine, October 2006, 14, cited at para3.46 of the Consultation paper f
8
See, in particular, Mackay and Brookbanks (2005), Mackay et al (2007)
9
This might have been a fuller description: the Commission does not report that this followed Mr
Sureda’s alleged attempt to blind Peter Coonan (the Yorkshire Ripper) in Broadmoor six months
earlier,
which also resulted in comparable proceedings the next year.
4