Unfitness to Plead Consultation Responses - Law Commission ...

New rules to decide who is fit to stand trial: response to consultation
Keith J.B. Rix, MPhil, LLM, MD, FRCPsych,
Consultant Forensic Psychiatrist and Part-Time Lecturer, Department of Law, De
Montfort University.
Old rules
I believe that the Rules are even older (see my attached paper on Dyson 1 which I am
preparing for publication: I have a Powerpoint version of the first part with appropriate
illustrations!).
The legal test
I agree that it is important to have the same basis for capacity as in the Mental Capacity Act
2005.
Proportionality
I can see the difficulties with regard to proportionality. As Lord Donaldson said in Re T 2 :
“The graver the consequences of the decision, the commensurately greater the level of
competence is required to take the decision”. Perhaps the answer lies in the approach to the
standard of proof and there is something to be learned from the how the higher courts have
sought to deal with particularly serious allegations within the civil standard of proof 3 .
1.6 is important. Under the present system, consideration has to be given to the effect of the
special measures for vulnerable defendants (Practice Direction (Criminal Proceedings):
Further Directions) [2007] 1 WLR 1790), the use of a ‘facilitator’ (R v SH [2003] EWCA
Crim 1028) and the provisions of s.104 of the Coroners and Justice Act 2009 which adds a
new s.33BA to the Youth Justice and Criminal Evidence Act 1999 permitting the use of an
intermediary in the case of accused persons under the age of 18 years whose ability to
participate effectively is compromised by their level of intellectual ability or social
functioning and in the case of accused persons over the age of 18 years who suffer from a
mental disorder within the meaning of the Act. It is not enough to conclude that a person is
unfit to plead and stand their trial. A report in such a case needs to take into account what the
effect would be of these existing special measures. This has a parallel in s.1(3) of the Mental
Capacity Act 2005.
A defined psychiatric test
1
R v Dyson (1831) 7 Car & P 303
2
[1993] Fam 95; [1992] 4 All ER 649, CA
3
In re H (Minors) [1996] AC 563; In re B (Children) [2008] UKHL 35; In re Doherty [2008] UKHL 33; and Independent
Police Complaints Commission v Hayman [2008] EWHC 2191 (Admin).
1