Unfitness to Plead Consultation Responses - Law Commission ...

grasp this highly challenging concept, and that it is the role of legal representatives to advise the
best course of action in such circumstances.
Furthermore, victims and other witnesses are exposed to the a similar risk under s.100(1), with
no legal advocate of their own and no safeguard to ensure that they understand the damage this
may do to their lives and reputations.
We would hope that this discrepancy would not be increased by a test of capacity which requires
the defendant to understand such complex elements of the law, as we do not accept that such
an understanding is necessary to effective participation.
Provisional Proposal 5: Decision-making capacity should be assessed with a view to
ascertaining whether an accused could undergo a trial or plead guilty with the assistance
of special measures and where any other reasonable adjustments have been made.
(Paragraph 4.27)
It follows from our estimation of the importance of a trial to the victim that we support the use of
special measures and any other reasonable means to ensure that the fewest possible
defendants are prevented from standing trial.
Again, however, we would value more clarity around the level of decision-making capacity
required, this time to trigger consideration of special measures. Returning to the examples given
in Chapter Three of the consultation paper, we would suggest that Example 3E, involving a
defendant with obsessive compulsive disorder (OCD) may not indicate a lack of capacity. OCD
is a manageable condition; with appropriate medical intervention, it may be possible for all but
the most severe sufferers to participate effectively.
We would also agree with the observation in the consultation paper that special measures,
which have been a significant innovation for all eligible witnesses including defendants and
victims, nevertheless bring their own dangers, especially those of inconsistent making and
granting of applications. Any legal change in this area should be accompanied by a greater
focus on the practical implementation of special measures, including training; we would be
extremely sympathetic to any effort of this kind.
Provisional Proposal 6: Where a defendant who is subject to a trial has a mental disorder
or other impairment and wishes to give evidence then expert evidence on the general
effect of that mental disorder or impairment should be admissible. (Paragraph 4.31)
We have no objection to this provisional proposal.
Provisional Proposal 7: A defined psychiatric test to assess decision-making capacity
should be developed and this should accompany the legal test as to decision-making
capacity. (Paragraph 5.17
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