Unfitness to Plead Consultation Responses - Law Commission ...

stand trial, on the basis of his inability to give evidence on his own behalf, (we) consider Mr
M unfit to plead and stand his trial”. The defendant was then found unfit to plead and stand
trial, on a trial of the facts he was found to have done the act alleged and he was made subject
to a guardianship order. Insofar as the evidence of the psychiatrists was that he was unable to
give evidence on his own behalf, it could be argued that, in any event, he should have been
found unfit to plead and stand trial, as he was incapable of giving evidence on his own behalf,
in which case, the s.35(1) provision was unnecessary.
Gray et al (2001) state that since their reported case they have been aware of a small number
of other cases in which “the ability to give evidence in one’s own defence had been included
in the criteria of fitness to plead and stand trial”. However the ability of the defendant to give
evidence on his own behalf is one of the original ‘Pritchard criteria’.
Insofar as, in the case reported by Grubin (1995), the defendant was fit to plead and stand
trial, and this included being capable of giving evidence on his own behalf, and s.35(1) refers
to the desirability of the defendant giving evidence on his own behalf, it would appear that it
is the distinction between ‘capacity’ and ‘desirability’ which is the key to understanding the
s.35(1) provision. The cases described by Grubin (1995) and by Gray et al (2001) are of
defendants who were going to appear or behave in such a way as to prejudice the jury against
them. Not being capable of acting in one’s best interests (R v Robertson 5 ) does not make
someone unfit to plead and stand trial. Therefore, s.35(1) would appear to be a provision for
defendants who have the capacity to give evidence on their own behalf but will probably not,
as a result of their ‘mental condition’, act in their best interests.
If this interpretation of the law is correct, these are complementary provisions. Alternatively,
it is possible that Parliament intended to use s.35(1) to give a statutory basis for the inclusion
of the undesirability of the defendant giving evidence on his own behalf in the rules for
fitness to plead and stand trial, in which case the interpretation of the law in the cases
reported by Gray et al (2001) would suggest that these are one and the same issue. Having
regard to the wording of the statute, i.e. ‘undesirability’ rather than ‘inability’ or ‘incapacity’,
this would appear unlikely but I hope that the Commission will clarify this.
The approach does matter: a defendant found fit to plead and stand trial but allowed to benefit
from s.35(1) will either be found guilty or acquitted and, if acquitted, the Court’s powers will
end there and then. However, if the defendant is found to be ‘under a disability’, because it is
undesirable for him to give evidence on his own behalf, he will be subject to the procedure
under the CPI(IU)A 1991 and, if found to have done the act alleged, disposal of his case will
be in the hands of the Court. It is also worth noting that for the application of s.35(1) there is
no requirement as to medical evidence. The Court may apply it on the basis of the evidence
of one doctor or a psychologist or even of its own motion. However, if the issue is held to fall
within the criteria for fitness to plead and stand trial, there will need to be evidence from two
registered medical practitioners including one approved under s.12 of the Mental Health Act
1983 (as amended by the Mental Health Act 1987).
References
5 [1968] 3 All E.R. 557, CA
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