Unfitness to Plead Consultation Responses - Law Commission ...

Provisional Proposal 1: The current Pritchard test should be replaced and there should
be a new legal test which assesses whether the accused has decision-making capacity
for trial. This test should take into account all the requirements for meaningful
participation in the criminal proceedings. (Paragraph 3.41)
Provisional Proposal 2: A new decision-making capacity test should not require that any
decision the accused makes must be rational or wise. (Paragraph 3.57)
Provisional Proposal 3: The legal test should be a revised single test 25 which assesses
the decision-making capacity of the accused by reference to the entire spectrum of trial
decisions he or she might be required to make. Under this test an accused would be
found to have or to lack decision-making capacity for the criminal proceedings.
(Paragraph 3.99)
Victim Support is in agreement with the creation of a new legal test to determine whether the
accused has the required decision-making capacity for trial (Provisional Proposal 1). We agree
that the quality of his decisions is irrelevant, other than insofar as they may trigger a test of his
decision-making capacity (Provisional Proposal 2). We also support the argument that the test
should be unitary rather than disaggregated (Provisional Proposal 3), as we feel that the latter
has the potential not only to undermine legal certainty, but to create a degree of complexity, and
practical difficulties such as delays, that could effectively render the trial inaccessible to victims
and the public.
We nevertheless believe that the test envisioned in the consultation paper posits an excessively
high threshold for establishing decision-making capacity, especially in relation to the defendant’s
memory and his ability to communicate.
Paragraph 3.13 lists four the provisional criteria for establishing decision-making capacity: in
summary, the ability to a) understand relevant information, b) retain the information, c) use the
information and d) communicate decisions based on the information. These are broadly
delineated, and we accept each in principle, but we have reservations about the level of capacity
that will be required on each head, as indicated by the specific examples.
We believe that Examples 3B and 3F fail to demonstrate inadequate decision-making capacity
for trial, although we of course recognise that depression and autism are both serious conditions
(and may of course be more relevant for one of the other criteria, such as understanding). These
particular examples, however, which relate to retention of information and communicative ability,
fail to reflect the extent to which the ordinary person relies on the advice and intervention of their
legal representatives, not to mention the extent to which memory lapses and problems
communicating are widespread difficulties which may affect an extremely high proportion of
defendants.
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