Unfitness to Plead Consultation Responses - Law Commission ...

Response to Consultation Paper on UNFITNESS TO PLEAD
(6) Are there circumstances in which an accused person who is found to have done the act and in respect
of whom there are no grounds for an acquittal should be able to request remission for trial?
No. Not until he is deemed competent to stand trial.
(7) Should an accused who is found to be unfit to plead (or to lack decision- making capacity) be subject to
the section 4A hearing in the same proceedings as co-defendants who are being tried?
No. See above, with the caveat of joint trial.
(8) Do consultees think that the capacity based test which we have proposed for trial on indictment should
apply equally to proceedings which are triable summarily?
In the interest of fairness, yes.
The Law Commission paper says at 8.33 - “In a case where a hospital order is the predicted outcome, there is a
danger that the accused’s legal representative may be willing to accept that disposal via the section 37(3) route, and
by that decision, deny the accused the opportunity for an acquittal.”. This is an excellent example of the mischief of s.
37(3) which happily is used very rarely. We do however agree that summary trials are perhaps well served by the
current arrangements mostly. However, much of this can be avoided by having Court Clinics contracted (like prisons) to
NHS trusts who will ensure that a defendant (summary or otherwise) can get a capacity assessment quickly (takes
50 minutes maximum using a validated tool) once the issue has been raised. The issue could be raised by defense,
prosecution or the magistrate.
(9) Do consultees think that if an accused lacks decision-making capacity there should be a mandatory fact-
finding procedure in the magistrates’ court?
No. For reasons explained above. The same as in Crown Court. The legal principles are the same regardless of which
Court it is in.
(10) If consultees think that there should be a mandatory fact-finding procedure, do they think it should be
limited to consideration of the external elements of the offence or should it mirror our provisional proposals 8
and 9?
See above.
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