Unfitness to Plead Consultation Responses - Law Commission ...

Sense Response
Provisional Proposal 1
Sense agrees that the current Pritchard test should be replaced and that there
should be a new legal test which assesses whether the accused has decisionmaking
capacity for trial.
Sense further agrees that this test should take into account all the requirements
for meaningful participation in the criminal proceedings. Sense is concerned
however that the consultation paper fails to anticipate or address certain
circumstances where a deafblind person would have mental capacity but would
be unable to participate meaningfully in the criminal proceedings and would
therefore be unfit to plea or stand trial.
The consultation paper refers to a quote from SC v United Kingdom,
“Effective participation” in this context presupposes that the accused has a
broad understanding of the nature of the trial process and what is at stake for him
or her, including the significance of any penalty which may be imposed. It means
that he or she, if necessary with the assistance of for example of an interpreter,
lawyer, social worker or friend should be able to understand the general thrust of
what is said in court. The defendant should be able to follow what is said by the
prosecution witness and, if represented, to explain to his own lawyers his version
of events, point out any statements with which he disagrees and make them
aware of any facts which should be put forward in his defence.” 4
A deafblind person may have the capacity to have “a broad understanding of the
trial process and what is at stake” but because of extreme difficulties in
accessing information the individual may be unable to understand the “general
thrust” of what is said in court, follow what is said by prosecution witnesses or
effectively explain his or her version of events”.
This is best illustrated through some examples – see below.
A is a profoundly deafblind woman. She has acquired deafblindness and so has
lived the majority of her life as a hearing sighted person. A former university
lecturer, A fully understands the gravity of the court process and the
consequences of a finding of guilt and any consequent penalty. Therefore, when
A successfully receives information, she has the mental acuity and capacity to
process and analyse complex facts. However, whilst A can talk to communicate
her side of events, her receptive communication is extremely impaired. A
receives deafblind manual but frequently gets confused about the order of words
and therefore frequently misunderstands what people are trying to tell her. With
her residual eyesight deteriorating month on month she can barely read. It can
4 (2005) 40 EHRR 10 (App No 60958/00) at para 35
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