Unfitness to Plead Consultation Responses - Law Commission ...

Question 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? (Paragraph 7.44)
No. Para III.30.4 of the PD specifically states that there should not be a joint trial if it is
contrary to the overriding objective of PART1 of the CPRs and the interests of justice. In
my there should always be separate trials.
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? (Paragraph 8.37)
Question 9: Do consultees think that if an accused lacks decision‐making capacity there should be
a mandatory fact‐finding procedure in the magistrates’ court? (Paragraph 8.37).
Question 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? (Paragraph 8.37)
Question 11: Do the matters raised in questions 8, 9 and 10 merit equal consideration in relation
to the procedure in the youth courts? (Paragraph 8.68)
I think there should be a capacity based test and a fact-finding procedure in the
Magistrates’ Court. As a practitioner, the lack of a test of unfitness to plead and
procedure in the summary proceedings has proved problematic and as such Ds are at a
disadvantage in comparison to being dealt with in a Crown court. I agree with the
summary of potential problems that this lack of procedures raises as outlined in para
8.14. Whilst the procedure for insanity in the Magistrates’ court is different from the
Crown court, at least it exists, whereas it does not for unfit Ds. (see Taylor and Krish
Advising Mentally disordered Offenders 2 nd ed Chapter 7 which highlights the piecemeal
and inadequate Magistrates’ court procedures). If one were to adopt a similar
procedure for the test i.e. is D unfit (using the decision-making capacity test), if so did he
do the act and then disposal, as in the Crown court, I don’t think that the statement that
for ‘matters to be resolved … there might be an undesirable delay in securing treatment
for those accused who need it’ (para 8.32) is a disadvantage. In my experience the
existence of a duty psychiatric scheme in Mags cts (rarely available in Crown court)
means solicitors have quicker access to expert advice and more possibility of getting D
the help/admission to hospital that may be required.
I am of the view that the Law Commission should make specific proposals in relation to
summary proceedings and that as far as possible these should mirror the proposals for the
Crown court as to omit the chance to reform this lacuna in the Magistrates’ court where
equally vulnerable Ds appear, would be a mistake. My comments are the same for the
Youth court.
January 23 rd 2010.