Unfitness to Plead Consultation Responses - Law Commission ...

problems which arose in B & others [2008] EWCA Crim 1997 might well
have been avoided by a postponement of consideration of the issue of B’s
fitness, until immediately before the opening of his defence case. So far
as I am aware, that was never done. As an aside, B subsequently
successfully appealed the jury’s finding of fact against him on the basis
that the trial of the facts should not have been conducted jointly with
erstwhile co-accused being tried on indictment, notwithstanding his
apparent interim recovery and remission for trial by the Secretary of
State (MB [2010] EWCA Crim 1684). The Supreme Court has recently
refused the prosecutor’s application for permission to appeal.
It goes almost without saying that a person who has been found unfit to
be tried (whether under the existing Pritchard test or any of the
replacements you might think appropriate to recommend) cannot
understand the proceedings or instruct his lawyers in his defence.
Doubtless that is the reason for the statutory provision requiring the
appointment of a person to put the case for the defence. The anomaly
which flows from that is that the rights of appeal under ss15 & 16A,
Criminal Appeal Act, 1968, nevertheless remain vested in the unfit
person. As a matter of logic it is difficult to see how he can exercise them.
Might it be appropriate to vest the rights of appeal which exist in
unfitness cases in the person appointed to put the case for the defence?
When the Court of Appeal, Criminal Division, gave its judgment in
Antoine [1999] 2 Cr. App. R. 225 it took the view that the person
appointed would have the authority to conduct the appeal (at 236G) but
it seems to me that having authority to conduct an appeal is not the same
as the right of appeal itself. I view this as an important issue worthy of
further consideration.
Dealing specifically with the List of Provisional Proposals and Questions
in Part 9, I observe as follows:
9.1(1)-(11) No comment
9.1(12) If this proposal is accepted, I suggest that consideration may need
to be given to whether any attendant rights of appeal need to be created
and, if so, by whom such rights may be exe``rcised. The unfitness
jurisdiction is one which s28(2) Senior Courts Act, 1981, does not exclude
from the jurisdiction of the Administrative Court (since it is no longer a
matter relating to trial on indictment) and, as a substantial number of
cases referred to in the Consultation Paper make clear, the
Administrative Court has not been slow to exercise a jurisdiction
notwithstanding the explicit rights of appeal contained in ss15 and 16A of
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