Unfitness to Plead Consultation Responses - Law Commission ...

1. Introduction
Victim Support is the national charity for victims of crime. In addition to the general service we
provide, Victim Support has extensive experience of supporting victims and other witnesses of
crime through the trial process. Our Witness Service operates in every Crown and magistrates’
court in England and Wales, and in 2009-10 supported nearly 270, 000 witnesses.
Victim Support fully appreciates the importance to a civilized justice system of ensuring that only
those defendants with the capacity to engage meaningfully in the trial process should be
subjected to it. We see no worthwhile benefit to victims in undermining a defendant’s right to a
fair trial.
We are nevertheless concerned that the current consultation paper fails to take full account of
the needs that victims do have in relation to the process. We hope it will not be considered a
frivolous point to observe that, other than in reference to the Domestic Violence, Crime and
Victims Act 2004, the word “victim” appears no more than 11 times in the course of a 125,900word
document. We wholly agree with the statement on p.42 that, “It is tempting to think that the
unfairness only exists in relation to defendants but in fact, if justice is not done, then the criminal
justice system is brought into disrepute and this is unfair to witnesses, victims of crimes and the
public at large”. It is disappointing, however, that this observation should appear merely as a
footnote.
Very few victims who report crime see their cases come to court; those who do have a range of
reactions, from fear of being cross-examined to exhilaration at the chance to take the stand.
Consistently with the longstanding principle of open justice, however, most share the
expectation that they will have the opportunity to see the defendant held to account if he is
guilty. From this perspective, the fundamental difference between a trial and a s.4a hearing
following a finding of disability is that in the latter, a defendant who is indeed responsible for the
wrong done to the victim can neither formally admit guilt, nor be convicted of it in the normal
way. We believe that this of such importance to victims that they have a considerable stake in
ensuring that defendants are only directed away from the standard trial process when this is
absolutely necessary in the interests of justice.
More broadly, it is our belief that taking better account of victims’ needs is vital to any meaningful
reform of criminal justice. Without the contribution made to the process by victims, from reporting
crime to giving evidence, it could not function; furthermore, victims’ experiences have a decisive
impact on public confidence in the system. We hope that our observations on this matter will
therefore have some weight,
Victim Support’s detailed responses to the provisional proposals and questions set out in this
consultation are outlined below.
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