Unfitness to Plead Consultation Responses - Law Commission ...

Consultation Proposals
Provisional Proposal – 1: The current Pritchard test should be
replaced and there should be a new legal test which assesses
whether the accused has decision-making capacity for trial. This test
should take into account all the requirements for meaningful
participation in the criminal proceedings. (Paragraph 3.41)
Unlike in the Mental Capacity Act, there is no reference in the Consultation
paper to the assumed default position for all defendants. That is, in the case
of the Mental Capacity Act, it is assumed that an individual has capacity unless
that is proved otherwise, using the criteria in that Act. The College believes
that it is worth taking the same stance with Unfitness to Plead in that it should
be stated clearly that all defendants should be assumed to be Fit to Plead
unless that is proved otherwise. We would suggest that this could be
incorporated into Proposal 1.
The Proposals around changing the Partial Defences to Murder, particularly
Diminished Responsibility, included the requirement that the person was
suffering from a mental disorder. The Pritchard Criteria has never stipulated
the need for a mental disorder of any type to be present. The College feel that
this is an important omission from them and would greatly help in the
assessment of Fitness to Plead.
Provisional Proposal – 2: A new decision-making capacity test should
not require that any decision the accused makes must be rational or
wise.
The College would support the fact that any new Decision Making Capacity
Test should not require that any decision the accused makes must be rational
or wise.
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