Unfitness to Plead Consultation Responses - Law Commission ...

Question 10: If consultees think that there should be a mandatory fact-finding
procedure, do they think it should be limited to consideration of the external elements
of the offence or should it mirror our provisional proposals 8 and 9?
If an accused lacks decision-making capacity there should be a mandatory factfinding
procedure in the magistrates’ court, which should mirror PP8. See, however,
PRT’s concerns regarding PP9.
Question 11: Do the matters raised in questions 8, 9 and 10 merit equal consideration
in relation to the procedure in the youth courts?
Yes; matters raised in Questions 8, 9 and 10 do merit equal consideration in
proceedings involving children, and this should apply in both youth and crown courts.
Further, due to developmental immaturity of children, additional safeguards should
be put in place.
Question 12: How far if at all, does the age of criminal responsibility factor into the
issue of decision-making capacity in youth trials?
As cited in this consultation paper, there is significant evidence that children’s
developmental immaturity directly affects their capacity for decision-making. Thus,
the age of criminal responsibility is a significant factor in the decision-making
capacity of children in youth trials in both youth and crown courts. The age of
criminal responsibility in England and Wales should be raised and aligned with the
European norm of 14 years. Meanwhile, the principle of doli incapax should be reestablished,
and the Gillick competence assessment, or similar, used in all youth
justice proceedings to regularise the protections afforded to children in the parallel
jurisdictions of youth and civil/family courts.
Additional points for consideration
In addition to our response to the provisional proposals and questions contained in
the consultation paper, we would like to make the following points.
Pre-sentence: should it be deemed necessary for a mentally disordered
defendant to be remanded at any stage of his or her trial, including for a report
on his or her mental condition or while awaiting trial or awaiting sentence, the
accused should not be remanded to prison. This would be generally in line
with the recommendations by Lord Bradley in his review, and the current
proposals put forward in the Justice Green paper. It is generally
acknowledged that prisons are unsuitable environments for mentally
disordered people, and such incarceration is likely to result in a further
deterioration of their mental health.
Jenny Talbot, Prison Reform Trust Page 6 3/25/2013