Unfitness to Plead Consultation Responses - Law Commission ...

8. It would be very easy to insert these foundational requirements in the test provisionally
recommended by the Commission. I do not intend to offer a definitive proposal in this
memorandum, but I will offer some tentative suggestions as to how these two requirements
might be incorporated efficiently in the Commission‟s provisional formulation of the fitness
criteria in CP Paragraph 3.13. As indicated in the text below, I would refer to the fitness criteria
not as a test of “decision-making capacity” but rather as a test of “mental capacity for criminal
adjudication”:
A person would therefore lack the requisite “mental capacity for criminal adjudication” if
he or she is unable to understand the nature and consequences of the criminal proceedings
against him or her, is unable to assist counsel in his or her own defence, or lacks the
capacity for rational decision-making in relation to the defence or disposition of the case.
Building on the language of Section 3 of the Mental Capacity Act 2005, and adapting it
to the setting of criminal adjudication, we provisionally propose that an accused should
be found to lack the requisite capacity if he or she is unable:
(1) to understand, both factually and rationally, the nature and consequences of
the criminal proceedings, the role of counsel and his or her own legal jeopardy,
(2) to communicate rationally with counsel and provide assistance in his or her
own defence [needed to allow counsel to carry out his or her own
responsibilities], 2
(3) to understand and retain information relevant to decisions that he or she is
expected to make in the course of the proceedings, 3
(4) to rationally consider and weigh information bearing on decisions that he or
she is expected to make, 4 or
(5) to communicate his or her decisions to counsel or the court.
9. It should be emphasized that the repeated use of the term “rational” in this revised
formulation refers to the process of reasoning, not to the outcome or content of the decision, just
as the Commission has correctly proposed. The Commission seems to have avoided using the
term “rational” at all in the proposed criteria in order to avoid any suggestion that an accused
could be regarded as “unfit” simply because his decision itself seems unwise or “irrational.”
(See, e.g., CP Paragraphs 3.48 and 3.54.) However, I think that the Commission has been overly
2 The bracketed language strikes me as useful but not necessary.
3 I have chosen this formulation to highlight an issue for the Commission to consider. See also Comment 13 below.
Many decisions need to be made during the course of a criminal proceeding. Only a few of them must be made
personally by the accused. The extent to which the accused becomes personally involved in other decisions depends
on many factors, including his or her interest and intellectual ability. Even in those situations where the accused is
expected to make certain decisions, he or she might decide to follow the attorney‟s advice without undertaking
independent deliberation. A capacity determination is inescapably contextualized.
4 The category of decisions that the accused is “expected to make” may include a decision to defer to counsel‟s
judgment or advice without making an independent decision.
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