Unfitness to Plead Consultation Responses - Law Commission ...

Question 1: Do consultees agree that we should aim to construct a scheme which allows
courts to operate a continuum whereby those accused who do not have decision-making
capacity will be subject to the section 4A hearing and those defendants with decisionmaking
capacity should be subject to a trial with or without special measures depending
on the level of assistance which they need? (Paragraph 4.27)
As indicated above, we do agree but we envision that the key points along the continuum, i.e.
the level of capacity at which a section 4a hearing or trial with special measures is ordered, will
need to be explored in more detail.
We also believe as stated that different levels of capacity (or different points along the
continuum) are required for each of the four heads of the proposed test; specifically that criteria
(1) and (3) should carry a lower threshold than (2) and (4).
Question 2: Can consultees think of other changes to evidence or procedure which would
render participation in the trial process more effective for defendants who have decisionmaking
capacity but due to a mental disorder or other impairment require additional
assistance to participate?(Paragraph 4.31)
We suggest additional training for legal representatives, or indeed the creation of specialist
counsel to take on such work.
Question 3: Do consultees agree that we have correctly identified the options for reform
in relation to the section 4A hearing? If not, what other options for reform would
consultees propose? (Paragraph 6.153)
We have no other options to propose.
Question 4: If consultees do not agree that option 5 is the best option for reform, would
they agree with any other option? (Paragraph 6.153)
We agree, but would echo the point made in response to Provisional Proposal 8: that any such
change should be accompanied by moves to educate the public, perhaps particularly about the
meaning of the special verdict.
Question 5: Should a jury be able to find that an unfit accused has done the act and that
there are no grounds for acquittal in relation to an act other than that specifically
charged? (Paragraph 6.159)
We have no comment on this question.
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