Unfitness to Plead Consultation Responses - Law Commission ...

Provisional Proposal 7: A defined psychiatric test to assess decision‐making capacity should be
developed and this should accompany the legal test as to decision‐making capacity. (Paragraph
5.17)
Not being a psychiatrist, I am unsure as to how restrictive a professional would find a
defined test to be.
I agree that it should not need to be two s12 doctors. In cases where ‘intelligence’ is an
issue it is invariably necessary to instruct a psychologist and indeed I have found that most
psychiatrists will not advise on unfitness to plead without the initial assessment by a
psychologist e.g. using the WAIS scales.
Provisional Proposal 8: The present section 4A hearing should be replaced with a procedure
whereby the prosecution is obliged to prove that the accused did the act or made the omission
charged and that there are no grounds for an acquittal. (Paragraph 6.140)
In my opinion option 5 is preferable and fairer to D as there are frequently cases where
but for the D’s mental state, s/he would not have committed the offence. ‘Sufficient
benefit’ is too narrow a test and the advocate should be able to put forward any
reasonable defence.
Question 1: Do consultees agree that we should aim to construct a scheme which allows courts to
operate a continuum whereby those accused who do not have decision‐making capacity will be
subject to the section 4A hearing 1 and those defendants with decision‐making capacity should be
subject to a trial with or without special measures depending on the level of assistance which they
need? (Paragraph 4.27)
See my response to proposal 5. I do agree with a ‘continuum’ scheme.
Question 2: Can consultees think of other changes to evidence or procedure which would render
participation in the trial process more effective for defendants who have decision making capacity
but due to a mental disorder or other impairment require additional assistance to participate?
(Paragraph 4.31)
I find that one of the main stumbling blocks with clients particularly those who have LD
is the overall language used in a court setting. Words and expressions which are in
everyday usage in the Crown court are really alien to most people outside the criminal
justice system, e.g. indictment, count, my friend, my learned friend, the Crown,
rebuttal, to name but a few. I am of the view that consideration should be given to
reviewing legal terms and language, perhaps in conjunction with the Plain English
Campaign, so there is an alternative recognised ‘script’ that can be used to these cases to
ensure the D does understand ‘what is happening’ throughout his trial (PD para
III.30.11). The opening of all criminal cases is in my view alienating as the words read
out by the clerk of the court namely, ‘ you are charged on an indictment containing x
counts’ has regularly resulted in my clients telling me they do not understanding what
the words indictment or count mean! Not to understand the start of their trial is wholly
inadequate.