Unfitness to Plead Consultation Responses - Law Commission ...

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Response to the Law Commission consultation: Unfitness to Plead: A consultation paper The British Psychological Society thanks the Law Commission for the opportunity to respond to this consultation. The British Psychological Society (“the Society”), incorporated by Royal Charter, is the learned and professional body for psychologists in the United Kingdom. The Society is a registered charity with a total membership of almost 50,000. Under its Royal Charter, the objective of the Society is "to promote the advancement and diffusion of the knowledge of psychology pure and applied and especially to promote the efficiency and usefulness of members by setting up a high standard of professional education and knowledge". The Society is committed to providing and disseminating evidence-based expertise and advice, engaging with policy and decision makers, and promoting the highest standards in learning and teaching, professional practice and research. The Society is an examining body granting certificates and diplomas in specialist areas of professional applied psychology. We are content for our response, as well as our name and address, to be made public. We are also content for the Law Commission to contact us in the future in relation to this consultation response. Please direct all queries to:- Consultation Response Team 1 , The British Psychological Society, 48 Princess Road East, Leicester, LE1 7DR. Email: Tel: This response was prepared on behalf of the Society by Paul Devonshire, CPsychol, AFBPsS, member of the Division of Clinical Psychology (DCP), the Division of Forensic Psychology (DFP) and the Faculty of Forensic Clinical Psychology, with contributions from: Dr Alice Campbell Reay, CPsychol, CSci, AFBPsS, member of the DCP, the Division of Neuropsychology and the Faculty for Psychologists Working with Older Adults; Bernard Kat, CPsychol, AFBPsS, member of the DCP, the Division of Health Psychology and the Managers’ Faculty; Robin Lomas, CPsychol, Associate Fellow of the Society; and Dr Gary Macpherson, CPsychol, CSci, AFBPsS, member of the DCP, the DFP and the Faculty of Forensic Clinical Psychology. We hope you find our comments useful. Dr C A Allan, CPsychol, CSci, AFBPsS Chair, Professional Practice Board _______________________ 1 formerly Policy Support Unit Unfitness to Plead British Psychological Society response, January 2011 Page 1 of 5
Response The Society welcomes the opportunity to respond to this consultation. As well as addressing the questions set out in the consultation paper, we think it pertinent to make certain observations and comments separately upon certain issues raised in the document. It appears that the need for change is predicated upon the observation that the existing Pritchard test is “outdated and inconsistent with modern psychiatry” (footnote 3, p. 1). In addressing the issue of fitness/unfitness to plead, we concur with the expectation that this will be brought into line with the principles underlying the recent legislation of the Mental Health Act and the Mental Capacity Act, particularly the latter. These Acts are couched in the language of decision-making capacity. It is therefore thought appropriate to use this language in estimating a defendant’s fitness to plead, conceptualizing the function of pleading as a decision-making process. It would be our contention that, though the term ‘decision-making’ does not appear in the Pritchard legal test, it is implicit. This may be a reflection on the change in language over time since Pritchard was originally promulgated in 1836. However, a nineteenth century judge captured the task demand of an accused person very well, that within due process he or she is potentially an active party in the trial. Thus, the accused person needs to be able to: • comprehend the evidence; • give proper instructions to legal representatives; • know that he/she can challenge a juror; • comprehend the course of proceedings on the trial in order to give a proper defence. It can be seen from the above list that the criteria apply to the decision-making needed throughout the trial and not just at the submission of plea stage. Unfortunately, however, the title ‘Unfitness to Plead’ might suggest to some people that it only applies to that single stage. In the USA, the issue is called “competence to stand trial”, and perhaps by describing it so in UK law rather than “(un)fitness to plead”, there would not be the present confusion. We are not aware that any such change in wording has been proposed: originally called the Incapacity Bill, it finally became the Capacity Act. One of the criticisms raised in the document is that Pritchard “places a disproportionate emphasis on cognitive ability, and does not take any or sufficient account of factors such as emotion or volition” (Section 3.23). From the perspective of academic and practising psychologists, this does not represent modern psychological thinking. Decision-making could be said to be the cognitive function par excellence, and occupies much of the attention of cognitive psychologists and scientists. People who are not psychologists often restrict the term ‘cognitive’ purely to intelligence and intelligence quotient (IQ) testing. This is an unfortunate error as people can have the same IQ and be quite different in their decision-making capacity, a fact which mitigates against the placing of too much emphasis on IQ scores. It is of note that when possible capacities to be included in evaluating fitness to plead are itemised (in Section 3.13), four processes are cited that psychologists would consider to be cognitive, 1) understanding of information (comprehension), 2) recall of information (memory), and weighing up information (reasoning). The last, 4) ‘communicating decisions’ leaves out the process of deciding what to communicate, which will be based upon the process of ‘problem-solving’, which can also be said to be cognitive. Unfitness to Plead British Psychological Society response, January 2011 Page 2 of 5
Page 1 and 2: Unfitness to Plead Consultation Res
Page 3 and 4: CONSULTEES, LISTED ALPHABETICALLY A
Page 5 and 6: Sarkar, Sameer Searle, Geoff Sense
Page 7 and 8: o The UN Committee on the Rights of
Page 9 and 10: Rethinking the Criminal Responsibil
Page 11 and 12: asic competencies of young people a
Page 13 and 14: parliament to consider rather than
Page 15 and 16: preventing crime. Graham and Bowlin
Page 17 and 18: other areas of the law’ and this
Page 19 and 20: absolute minimum age of criminal re
Page 21 and 22: The views of the judiciary in the U
Page 23 and 24: all children who are alleged to hav
Page 25 and 26: 39 Trevor Jones‘Public Opinion, P
Page 27 and 28: Charity No 1137430 Company No 60065
Page 29 and 30: Charity No 1137430 Company No 60065
Page 31 and 32: From: Bickle Andrew Sent: 10 Januar
Page 33 and 34: Comments on “Unfitness to Plead,
Page 35 and 36: 8. It would be very easy to insert
Page 37 and 38: himself at trial. The Court did not
Page 39: -----Original Message----- From: Br
Page 43 and 44: for the task in hand. This would ap
Page 45 and 46: 1. Introduction “UNFITNESS TO PLE
Page 47 and 48: On the other hand, the so-called co
Page 49 and 50: The Law Commissioners, Steel House,
Page 51 and 52: Law Commission consultation on unfi
Page 53 and 54: could possibly mean that they take
Page 55 and 56: whether present at the time of the
Page 57 and 58: disposals. We consider that the ref
Page 59 and 60: difficulties may or may not be fit
Page 61 and 62: profession to treatment, the civil
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The current section 4A procedure re
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The CPS then re-reviews the case in
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cases, there should be a single tri
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magistrates/District Judges, keepin
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Law Commission Consultation paper N
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From: Enys Delmage Sent: 16 March 2
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for meaningful participation in the
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(7) A defined psychiatric test to a
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(13) In the event of a referral bac
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[Paragraph 6.153] N/A (5) Should a
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[Paragraph 8.68] YES (12) How far i
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Question 1: Do consultees agree tha
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Question 5: Should a jury be able t
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Question 7: Should an accused who i
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Question 9: Do consultees think tha
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Question 11 Do the matters raised i
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Summary of comments regarding propo
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4. Antoine probably reflects a reas
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succeed in doing so, but at the cos
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kept in a shared wardrobe at the ho
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acquittal save those arising from a
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From: Ernest Gralton Sent: 14 Decem
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then the Home Secretary, said that
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Law Commission Consultation Paper N
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Provisional Proposals 6 and 7 There
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Dear David, HHJ Wendy R. Joseph QC
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I totally agree that the test must
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Just for Kids Law: Response to the
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We agree with this approach for a r
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Provisional Proposal 6: Where a def
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Article 6 protection would also giv
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Question 6: Are there circumstances
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judges, politicians, advocates, and
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Appendix One GRISSO CRITERIA Thomas
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Justices’ Clerks’ Society Law C
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measures might have a beneficial im
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Question 9: Do consultees think tha
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Response to the Law Commission Cons
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liberating and immensely challengin
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However it is where these two areas
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Pearson was detained for three mont
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wholly agree with, focuses predomin
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Whilst this is a submission in rela
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SECTION 1 : KC RESPONSE TO PROVISIO
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Provisional Proposal 3: The legal t
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Provisional Proposal 5: Decision-ma
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that the defendant’s capacity is
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Question 2: Can consultees think of
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Provisional Proposal 8: The present
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Option 4 which looks at reform to m
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Question 5: Should a jury be able t
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Please note the exploitative scenar
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out in Crown, magistrate and youth
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In the case studies of Mr Y and Mr
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APPENDIX I Case Study: Mr A [This c
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unwell. Mr A was being seen every c
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APPENDIX II Case study: Mr Z [This
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sensitively. A lawyer was obtained
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elease accompanied by a nurse. Kids
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At this time, Mr O ceased engaging
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APPENDIX V MIND: STATICTICS: FACTSH
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per 100,000 in the general populati
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Prisoners and the Mental Health Act
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RESPONSE TO LAW COMMISSION CONSULTA
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3 Admission for treatment. (1) A pa
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(8) Do consultees think that the ca
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UNFITNESS TO PLEAD Response by the
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Example 3E UNFITNESS TO PLEAD Respo
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Law Commission consultation paper n
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(1) understand the charges (2) be c
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Further, given that some clinicians
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In addition to the above proposals,
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that defendants with mental health
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Response to the Consultation Paper
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We consider that the concerns about
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Unfitness to plead - Some Responses
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or made the omission charged and th
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(6) Are there circumstances in whic
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statistics. In 2008 there were 484
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LAW COMMISSION CONSULTATION: UNFITN
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Our Comments We are not criminal pr
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4. We have been asked to suggest or
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particular tool should necessarily
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My comments refer to the recent Con
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NATIONAL BENCH CHAIRMEN’S FORUM A
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National Bench Chairmen’s Forum T
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RESPONSE TO THE LAW COMMISSION’S
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There is a real danger in conflatin
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physical strength and sexual awaken
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The group felt that many experts’
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Tel: Fitzwilliam College Fax: Cambr
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Unfitness to Plead: the place to fi
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court proceedings” (at para 149).
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processes, and, indeed, on the comp
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of the European Court of Human Righ
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Law Commission Steel House 11 Tothi
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obligations, it would be much easie
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Response to the Law Commission’s
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fit to plead, the availability and
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disability) there should be a power
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Disposal under the Mental Health Ac
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I agree. There should be a test of
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Gray, N.S., O’Connor, C., William
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On the Friday, the day before she w
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The following Thursday at The Black
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Cases involving the learning disabl
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Graham Rogers and Associates Limite
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In this case, it is being proposed
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Being able to ‘read’ The Sun or
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test, it may also begin to indicate
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subjected to the new provisions mus
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introduction, more than ten times t
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Response to Consultation paper 197,
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emand have significant personal cos
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Where possible an individual should
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epetition of evidence or the provis
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months, and are unlikely to refer b
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Question 12: How far if at all, doe
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Consultation Proposals Provisional
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agreement on the primary issue enga
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It would of course be concerning if
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witnesses who are commissioned to u
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PO BOX 3544 Wokingham, RG40 9FA T 0
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Response to Consultation Paper on U
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Unfitness to Plead Sense Response P
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- Congenitally deafblind children a
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The deafblind population has been s
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take up to 15 minutes to read a sho
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For example - A deafblind person C
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- Allowing the deafblind person to
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RESPONSE TO THE LAW COMMISSION CONS
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g. However, In some circumstances,
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QUESTION 9 Do consultees think that
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Obviously the judge should be guide
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Question 7: Should an accused who i
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problems which arose in B & others
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1. Introduction Victim Support is t
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In our view, a general difficulty w
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We are in support of this provision
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Preliminary Comments Dr Eileen Viza
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3 ‘developmental immaturity’ co
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PART 9 LIST OF PROVISIONAL PROPOSAL
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7 (9) If the accused is acquitted p
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9 (9) Do consultees think that if a
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11 Other References All Party Parli
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