Unfitness to Plead Consultation Responses - Law Commission ...

Being able to ‘read’ The Sun or The Star is one thing, being able to read
court papers is completely different and substantially more complex,
with court papers generating an emotional response which will
invariably decrease the ability of the low IQ/ learning disabled
defendant.
This ability goes to the support required, not only during the trial, but
also in terms of any preparation.
The ability to consult with counsel also has wider social issues. That is,
the defendant’s ability to cope with social pressures:
In a case at the defendant I assessed was told
that if I gave evidence on his behalf, his parents would have their
brains blown out. (The case when re-listed and re-held, was supported
by more than a dozen heavily armed police officers.) Whereas the
probability of the parents being shot and killed was in reality, extremely
small, the defendant’s ability to manage this social pressure was nil; his
IQ was below 69.
In a case coming before another court soon, the teenage defendant is
being expected to give evidence which is in effect, against his sister;
the person he feels closest too in the world. His IQ is 69, and one needs
to ask, will a person with an IQ so low, and under this pressure, where
he would also need to give evidence, in effect, against his mother, be
able to consult with counsel adequately.
To date he has not cooperated, because he is not intellectually or
socially able to do so.
At the hearing to discuss ‘fitness,’ he will be found fit, even though he is
patently unable to defend himself, not through choice, but through a
mixture of low intellect and complex social factors.
Such social issues are not covered by the psychiatric interview.
Standardised tests
Psychiatrists are not trained in delivering standardised tests.
The delivery of such tests is not as easy as people think. If one looks at
the ‘MacArthur’ (MacCAT-TA), it was a test developed by a team of
professionals, most of whom were psychologists.
This is a reasonable tool, but it is also somewhat subjective and only
addresses one type of ‘fitness issue,’ that of learning disability.
In my experience in using it, you also need an IQ below 60 to have any
impact on the court as too ‘fitness,’ though it is useful in directing the
court to where the defendant’s difficulties will lie.
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