Unfitness to Plead Consultation Responses - Law Commission ...

1) I respectfully agree with Provisional Proposal 12 and 13 and their interrelation with
Question 6. Once a jury is sure that the defendant has committed the act and that there are
no reasonable grounds for an acquittal, he has, effectively, been convicted. A request by him
for a remission for trial would amount to an appeal against the finding and a re-run of the
issues in front of a different jury.
2) For all the reasons set out in the CP at 7.22-7.26, I cannot envisage any other circumstances
in which an accused might request a remission for trial.
QUESTION 7
Should an accused who is found to be unfit to plead (or lack decision making capacity) be subject
to the section 4A hearing in the same proceedings as co-defendants who are being tried?
There may be some cases where it is in the interests of justice for all defendants to be tried
in the same proceedings and for a single jury to resolve all issues. Conversely, there may be
cases where it is not. Each case should be decided on its merits. Therefore in my opinion, no
hard and fast rule should be set out.
QUESTION 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?
1) The lack of authority or published material relating to the present system may reflect
the limited number of cases disposed of under the current regime, as opposed to an
indication that the present system works quite well (See para 8.36).
2) I suspect that cost may be an issue. Such a procedure in the magistrates' court might increase
the cost of summary proceedings. However, I believe that a consistent approach would be
beneficial; surely all those accused of crimes who have mental disorders are entitled to the
same quality of justice and proceedings, whether they are tried by a High Court Judge and
jury, Circuit Judge and jury, by a District Judge alone or by lay magistrates? I suspect that
where issues of fitness arise a district judge is usually assigned. It would become the norm if
there was such a change to the system. It may therefore be that the cost would not
necessarily increase. As a matter of principle, I do not see why the capacity based test
should not apply to equally to proceedings that are triable summarily.
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