Unfitness to Plead Consultation Responses - Law Commission ...

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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 5
We are in support of this provisional proposal as being likely to inspire confidence in victims and the wider public than a legal test without psychiatric input. Provisional Proposal 8: The present section 4A hearing should be replaced with a procedure whereby the prosecution is obliged to prove that the accused did the act or made the omission charged and that there are no grounds for an acquittal. (Paragraph 6.140) Our only comment on this proposal is that the public understanding of the nature and purpose of s.4a hearings are of course considerably lower than that of standard trials. If this provisional proposal is implemented, we hope that the Law Commission will consider recommending greater efforts by statutory agencies to educate the public in this regard. Provisional Proposal 9: If the accused is acquitted provision should be made for a judge to hold a further hearing to determine whether or not the acquittal is because of mental disorder existing at the time of the offence. (Paragraph 6.140) We have no objection to this provisional proposal. Provisional Proposal 10: The further hearing should be held at the discretion of the judge on the application of any party or the representative of any party to the proceedings. (Paragraph 6.152) We have no objection to this provisional proposal. Provisional Proposal 11: The special verdict should be determined by the jury on such evidence as has been heard or on any further evidence as is called. (Paragraph 6.152) We have no objection to this provisional proposal Provisional Proposal 12: Where the Secretary of State has referred a case back to court pursuant to the accused being detained under a hospital order with a section 41 restriction order and it thereafter becomes clear beyond doubt (and medical evidence confirms) that the accused is still unfit to plead, the court should be able to reverse the decision to remit the case. (Paragraph 7.21) We have no objection to this provisional proposal. Provisional Proposal 13: In the event of a referral back to court by the Secretary of State and where the accused is found to be unfit to plead, there should not be any need to have 6
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Unfitness to Plead Consultation Res
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CONSULTEES, LISTED ALPHABETICALLY A
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Sarkar, Sameer Searle, Geoff Sense
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o The UN Committee on the Rights of
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Rethinking the Criminal Responsibil
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asic competencies of young people a
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parliament to consider rather than
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preventing crime. Graham and Bowlin
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other areas of the law’ and this
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absolute minimum age of criminal re
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The views of the judiciary in the U
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all children who are alleged to hav
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39 Trevor Jones‘Public Opinion, P
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Charity No 1137430 Company No 60065
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Charity No 1137430 Company No 60065
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From: Bickle Andrew Sent: 10 Januar
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Comments on “Unfitness to Plead,
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8. It would be very easy to insert
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himself at trial. The Court did not
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-----Original Message----- From: Br
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Response The Society welcomes the o
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for the task in hand. This would ap
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1. Introduction “UNFITNESS TO PLE
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On the other hand, the so-called co
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The Law Commissioners, Steel House,
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Law Commission consultation on unfi
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could possibly mean that they take
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whether present at the time of the
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disposals. We consider that the ref
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difficulties may or may not be fit
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profession to treatment, the civil
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of the decision the accused must ma
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25. We consider that Provisional Pr
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Provisional Proposal 5: Decision-ma
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giving evidence, it is unlikely tha
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Provisional Proposal 7: A defined p
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42. The difficulty lies in that the
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envisages that there could be an ac
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Reply 50. We consider we have alrea
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Question 6: Are there circumstances
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uilds upon the disposal of the case
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determination of jurisdiction as ap
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age” in which term we include the
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The assumption that has been made i
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which the court is satisfied that t
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The current section 4A procedure re
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The CPS then re-reviews the case in
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cases, there should be a single tri
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magistrates/District Judges, keepin
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Law Commission Consultation paper N
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From: Enys Delmage Sent: 16 March 2
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for meaningful participation in the
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(7) A defined psychiatric test to a
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(13) In the event of a referral bac
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[Paragraph 6.153] N/A (5) Should a
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[Paragraph 8.68] YES (12) How far i
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Question 1: Do consultees agree tha
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Question 5: Should a jury be able t
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Question 7: Should an accused who i
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Question 9: Do consultees think tha
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Question 11 Do the matters raised i
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Summary of comments regarding propo
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4. Antoine probably reflects a reas
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succeed in doing so, but at the cos
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kept in a shared wardrobe at the ho
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acquittal save those arising from a
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From: Ernest Gralton Sent: 14 Decem
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then the Home Secretary, said that
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Law Commission Consultation Paper N
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Provisional Proposals 6 and 7 There
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Dear David, HHJ Wendy R. Joseph QC
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I totally agree that the test must
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Just for Kids Law: Response to the
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We agree with this approach for a r
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Provisional Proposal 6: Where a def
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Article 6 protection would also giv
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Question 6: Are there circumstances
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judges, politicians, advocates, and
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Appendix One GRISSO CRITERIA Thomas
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Justices’ Clerks’ Society Law C
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measures might have a beneficial im
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Question 9: Do consultees think tha
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Response to the Law Commission Cons
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liberating and immensely challengin
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However it is where these two areas
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Pearson was detained for three mont
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wholly agree with, focuses predomin
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Whilst this is a submission in rela
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SECTION 1 : KC RESPONSE TO PROVISIO
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Provisional Proposal 3: The legal t
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Provisional Proposal 5: Decision-ma
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that the defendant’s capacity is
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Question 2: Can consultees think of
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Provisional Proposal 8: The present
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Option 4 which looks at reform to m
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Question 5: Should a jury be able t
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Please note the exploitative scenar
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out in Crown, magistrate and youth
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In the case studies of Mr Y and Mr
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APPENDIX I Case Study: Mr A [This c
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unwell. Mr A was being seen every c
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APPENDIX II Case study: Mr Z [This
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sensitively. A lawyer was obtained
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elease accompanied by a nurse. Kids
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At this time, Mr O ceased engaging
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APPENDIX V MIND: STATICTICS: FACTSH
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per 100,000 in the general populati
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Prisoners and the Mental Health Act
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RESPONSE TO LAW COMMISSION CONSULTA
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3 Admission for treatment. (1) A pa
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(8) Do consultees think that the ca
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UNFITNESS TO PLEAD Response by the
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Example 3E UNFITNESS TO PLEAD Respo
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Law Commission consultation paper n
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(1) understand the charges (2) be c
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Further, given that some clinicians
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In addition to the above proposals,
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that defendants with mental health
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Response to the Consultation Paper
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We consider that the concerns about
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Unfitness to plead - Some Responses
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or made the omission charged and th
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(6) Are there circumstances in whic
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statistics. In 2008 there were 484
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LAW COMMISSION CONSULTATION: UNFITN
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Our Comments We are not criminal pr
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4. We have been asked to suggest or
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particular tool should necessarily
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My comments refer to the recent Con
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NATIONAL BENCH CHAIRMEN’S FORUM A
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National Bench Chairmen’s Forum T
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RESPONSE TO THE LAW COMMISSION’S
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There is a real danger in conflatin
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physical strength and sexual awaken
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The group felt that many experts’
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Tel: Fitzwilliam College Fax: Cambr
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Unfitness to Plead: the place to fi
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court proceedings” (at para 149).
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processes, and, indeed, on the comp
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of the European Court of Human Righ
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Law Commission Steel House 11 Tothi
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obligations, it would be much easie
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Response to the Law Commission’s
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fit to plead, the availability and
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disability) there should be a power
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Disposal under the Mental Health Ac
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I agree. There should be a test of
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Gray, N.S., O’Connor, C., William
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On the Friday, the day before she w
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The following Thursday at The Black
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Cases involving the learning disabl
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Graham Rogers and Associates Limite
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In this case, it is being proposed
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Being able to ‘read’ The Sun or
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test, it may also begin to indicate
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subjected to the new provisions mus
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introduction, more than ten times t
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Response to Consultation paper 197,
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emand have significant personal cos
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Where possible an individual should
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epetition of evidence or the provis
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months, and are unlikely to refer b
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Page 400 and 401: Unfitness to Plead Sense Response P
Page 402 and 403: - Congenitally deafblind children a
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Page 412 and 413: RESPONSE TO THE LAW COMMISSION CONS
Page 414 and 415: g. However, In some circumstances,
Page 416 and 417: QUESTION 9 Do consultees think that
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Page 420: Question 7: Should an accused who i
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Page 427 and 428: 1. Introduction Victim Support is t
Page 429: In our view, a general difficulty w
Page 433 and 434: Question 1: Do consultees agree tha
Page 435 and 436: Preliminary Comments Dr Eileen Viza
Page 437 and 438: 3 ‘developmental immaturity’ co
Page 439 and 440: PART 9 LIST OF PROVISIONAL PROPOSAL
Page 441 and 442: 7 (9) If the accused is acquitted p
Page 443 and 444: 9 (9) Do consultees think that if a
Page 445: 11 Other References All Party Parli
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