Unfitness to Plead Consultation Responses - Law Commission ...

The Law Commissioners,
Steel House,
11 Tothill Street,
London,
SW1H 9LJ
8 th December 2010
Dear
RE: Consultation paper no. 197 Unfitness to plead
By email and post
I am a clinical psychologist. I have been preparing Court reports in civil, criminal
and family cases for over 15 years. In that time, I have prepared approximately 20
reports in criminal cases where the main issue was fitness to plead/stand trial and I have
given evidence in Court for about half of these cases. In most of them, there were no
psychiatrists involved.
I read your consultation paper with interest and I am responding to your first 7
proposals as outlined in paragraph 9.1. I do not consider that I can respond to the
remaining proposals as they appear to relate to legal/procedural issues about which I am
not qualified to comment.
I welcome the proposal to replace the Pritchard test with a broader assessment of
whether the defendant has “all the requirements for meaningful participation in the
criminal proceedings.” I agree that this assessment should not require that any decisions
made must be “rational or wise.” Instead, it should be based on objective evidence
relating to the psychological processes that govern decision-making.
I also agree that what is required can vary depending on the nature of the trial.
Some of the cases in which I acted as expert were complex fraud cases where the
evidence consisted of very lengthy, detailed financial documents. Such cases make
different demands on the defendant as compared with cases where the issue is whether or
not he or she took part on one count of burglary, for example. I am therefore in agreement
with proposals (3) and (4).
The question of special measures is one that I have been asked but it can be hard
to answer with any confidence because we lack the research base to determine whether,
for example, allowing breaks and sitting for a shorter day will help a particular defendant
who is suffering from anxiety that disrupts concentration and attention.
I certainly agree with proposal (6) that expert evidence should be offered in such
cases. You rightly make the point that a standardised test should be used. Standardised
tests are those which have a research base to support them, relating to how reliable and