Unfitness to Plead Consultation Responses - Law Commission ...

I agree. There should be a test of decisional competence. If the Commission cannot do better,
I recommend that the legal test should be that adopted in Jersey in Attorney General v
O’Driscoll 4 . Psychiatrists should be asked to operationalise this as a psychiatric test.
Overlap with s.35 of the Criminal Justice and Public Order Act 1994
There is a provision under s.35 of the Criminal Justice and Public Order Act 1994 for the
court to refrain from giving the adverse inference direction to the jury in respect of the
defendant’s silence at trial if “it appears to the court that the physical or mental condition of
the accused makes it undesirable for him to give evidence”.
The Courts differ in the way they approach the relationship between this provision and the
provisions for fitness to plead and stand trial. I hope that the opportunity will also be taken to
clarify this area of the law.
Grubin (1996) described what appears to have been one of the first cases in which this
provision was applied. This was a case in which there did not appear to be any issue with
regard to the defendant’s fitness to plead and stand trial, he was not suffering from any form
of mental disorder within the meaning of the 1983 Act and no psychiatric diagnosis could be
made of mental illness or personality disorder but it was suggested that “his personality was
such that under the stress of cross-examination he was likely to become anxious, frustrated
and confused, and that this could cause him to behave in an inappropriate manner, with the
risk of prejudicing the jury against him …. He had already demonstrated a wide repertoire of
behaviours … (any of which), while not being an indication of his guilt or innocence, could
distract from the content of his evidence and lead the jury to make inappropriate inferences”.
There was also an argument that although he did not suffer from a form of mental disorder,
he might appear to do so to a lay individual, as he had appeared to his solicitor and barrister,
and this was what the terminology ‘mental condition’ was intended to reflect. The Court
stressed that the overriding concern had to be the risk that the jury could misinterpret his
behaviour and obtain an inappropriate picture of the defendant and his defence. The
defendant did not give evidence on his own behalf and he was acquitted.
It has been suggested by Gray, O’Connor, Williams et al (2001) that there are a number of
psychiatric and psychological disorders that may amount to a ‘condition’ within the meaning
of s.35(1): “severe mental health problems, learning disabilities, dementia or head injury that
may lead to the evidence that they give at trial being misinterpreted by a jury and
consequently leading to a potentially biased view being formed of both the defendant and the
defence”.
Whereas, in the case reported by Grubin (1995), where the issue addressed by s.35(1) was
treated as being separate from the issue of fitness to plead and stand trial, Gray et al (2001)
have reported a case in which defence counsel argued that it should be included as a new and
additional criterion in the evaluation of fitness to plead and stand trial and in which case both
psychiatrists who had been instructed concurred in their opinion that if the Court “considers
that ability to give evidence in your own defence is vital for someone to be fit to plead and
4 [2003 JLR 390]
2