Unfitness to Plead Consultation Responses - Law Commission ...

In our view, a general difficulty with memory retention, as present in Example 3B, is unlikely to
negate a fair trial; we believe this would only be the case where the difficulty is so severe, or so
specific, that the defendant cannot instruct counsel, as appears to be the case in 3C. There is
surely a spectrum of memory impairment, along which a defendant experiencing the ordinary
degradation of memory associated with ageing, and one with advanced Alzheimer’s disease,
might represent the extremes. Up to a certain point on this scale, we would expect the
defendant’s legal representatives to be able to remedy the fault.
In 3F, we do not accept that autism would in most cases present sufficient difficulties with
communication (as opposed to understanding or weighing information) to negate the necessary
decision-making capacity for a trial. Again, we feel that the relationship between the defendant
and his legal representatives is at the heart of the defendant’s meaningful participation: if he can
be induced to instruct counsel, even in the form of answering binary questions, then it would
appear that he is as able to stand trial as most defendants.
We also believe that 3E is a borderline case, in which special measures may be appropriate
rather than an outright finding of no capacity, as discussed below.
In short, we feel that of the four criteria in Paragraph 3.13, the ability to understand and use or
weigh information ((1) and (3)) are both significantly more determinative of a defendant’s
capacity than (2) and (4), and less susceptible to corrective intervention by his legal
representatives. We suggest that more detail of the requisite level of capacity on each separate
head should be forthcoming.
Provisional Proposal 4: In determining the defendant’s decision-making capacity, it
would be incumbent on the judge to take account of the complexity of the particular
proceedings and gravity of the outcome. In particular the judge should take account of
how important any disability is likely to be in the context of the decision the accused
must make in the context of the trial which the accused faces. (Paragraph 3.101)
We do not support this proposal, on the basis that neither defendants nor victims are
responsible for the fact that some cases, and some areas of the criminal law, are more complex
than others. It is unjust to both that the treatment of a criminal charge should be so dependent
on what that charge happens to be. We believe a standardised test, provided an appropriate
level of requisite capacity is set for each of the four criteria, is the fairer option.
In relation to what that level should be, we note at Paragraph 3.65 the example given to illustrate
how a disaggregated approach would work in practice: that the defendant who is found
competent for some elements of the trial process may be found to lack capacity if he does not
understand “that his or her bad character might be revealed under the provisions of section
101(1) of the Criminal Justice Act 2003 if certain accusations are made by him or her”. We
respectfully observe that it is unrealistic to require such an understanding in order to establish
capacity; we believe there are many highly competent members of the public who would fail to
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