Unfitness to Plead Consultation Responses - Law Commission ...

fit to plead, the availability and scope of such measures and adjustments must be
made an entitlement for the accused in law, and equivalent to that afforded the
Crown. For example, section 104 of the Coroners and Justice Act 2009 deals only
with defendants giving evidence, which would not be sufficient to ensure either
‘effective participation’ in court proceedings, or to prepare an individual for their trial,
such as decisions that must be made ahead of a court appearance. Further:
Special measures and reasonable adjustments should not be generally
specified but based on the assessed need of the accused, undertaken by one
or more appropriately qualified practitioners
Any assessment of decision-making capacity that assumes a degree of
support, whether through special measures or reasonable adjustments, must
also guarantee, in law, that such support is made available and is paid for by
the court
The onus to ensure that such special measures and reasonable adjustments
as may be required are in place should rest with the court, and not with the
individual accused or his/her defence
The ability of the accused to effectively participate should be kept under
review and, to safeguard the accused, a procedure for halting the trial, should
be put in place
See also our response to Question 2.
PP6: Where a defendant who is subject to a trial has a mental disorder or other
impairment and wishes to give evidence then expert evidence on the general effect of
that mental disorder or impairment should be admissible.
While PRT agrees in principle with PP6, there are concerns about the prejudice that
expert evidence could provoke. Notwithstanding the independence of the expert
witness, there can be important differences between the evidence given by different
professionals. For example expert evidence called upon by the prosecution might be
different to that called upon by the defence; this, in turn, might result in an ‘expert
dispute’ rather than any real illumination of the general effect of the mental disorder
or impairment upon the defendant. While an understanding of the general effect of
the mental disorder or impairment could be invaluable to proceedings – especially
where practical examples are given to assist understanding – great care needs to be
given to avoid creating prejudice either way.
PP7: A defined psychiatric test to assess decision-making capacity should be
developed and this should accompany the legal test as to decision-making capacity.
While PRT agrees with PP7, a defined psychiatric test should be viewed as one part
of the process to assess decision-making capacity. For example, a defined
psychiatric test, accompanied by a clinical interview, would aid the process of
Jenny Talbot, Prison Reform Trust Page 3 3/25/2013