Unfitness to Plead Consultation Responses - Law Commission ...

(like Erskine, H and many others) whose are not capable of making decisions and
whose decisions are irrational and flawed as a result of mental disorder. Rogers et al
quote a barrister saying
‘. . . One young man that raised anxiety in my mind was 17, from Eastern Europe, and had seen his
parents murdered. He had literally lived on his own from the age of 11, on a hillside tending goats. He
got an A for intelligence, was deemed fit to plead but there was a huge vacuum in his cultural
understanding . . . he could not give evidence because either his answers or the questions asked were
being misconstrued. He didn’t have a fair trial . . .’
How could we introduce routine screening for fitness to plead?
‐ Could we also more obviously ‘balance’ the rights of the mentally disordered
such that ‘due process’ does not become unduly burdensome? Can the Law
Commission assess this without reviewing in more detail the civil mental
health system? While it seems proper that there should be a formal
assessment of whether the defendant committed the crime, since a defendant
who is unfit to plead may still be detained under civil powers, civil detention
also requires strong safeguards.
The discussion so far has focused on what goes on in the Crown Court. The problems
which arise in the magistrates’ court, and in the youth court, may be as great. Again,
it is difficult to assess the Law Commission’s proposals without much more detailed
research on the current problems in practice. The reported cases are often too brief to
be really helpful: for example, the Law Commission criticizes the decision in Blouet v
Bath and Wansdyke Magistrates Court [2009] EWHC 759 (Admin) but unfortunately
the judgement is very brief: we do not learn anything about what the claimant (with
Asperger’s syndrome) was alleged to have done, or the offence with which he had
been charged. The judgement simply rehearses appropriate procedures. R (Varma) v
Redbridge Magistrates’ Court [2009] EWHC 836 (Admin) paints a dreadful picture
of the treatment of a man with severe learning difficulties: Mr Justice Oppenshaw
orders costs to be paid equally by the CPS and by the magistrates Court:
there was clear evidence that the claimant had learning difficulties of such seriousness that he
could not participate in the trial process. Even if that decision [to proceed to trial in the
magistrates’ court] was defensible, which it is not, they should never have contested the
proceedings beyond the order that Mr Justice Blake, let alone to and including this contested
hearing…. (at para 89).
There are also some dreadful stories percolating up from the youth court: read CPS v
P [2007] EWHC 946 (Admin). It beggars belief that the CPS appealed by way of
case stated from the sensible decision of a District Judge to stay as an abuse of
process criminal proceedings against a boy aged 11 with very significant problems.
Indeed, I wrote in Archbold News
difficulties? As Professor And
11 that it is disconcerting to think that criminal
proceedings appear to have had priority over civil proceedings in this case: we are
told that the local authority commenced care proceedings only on June 12, 2006, after
these (criminal) proceedings had been stayed. Proceedings in respect of a full care
order were due to start in April 2007. Surely civil proceedings under the Children Act
1989 should have been considered before the “sledge hammer” of a criminal
prosecution, especially when one is dealing with a child with significant learning
rew Ashworth states, in his commentary to the decision
11 See (2007) 5 Archbold News 3-4
6