Unfitness to Plead Consultation Responses - Law Commission ...

Law Commission consultation on unfitness to plead
Response from Centre for Mental Health
Centre for Mental Health is an independent charity which works to improve the life chances
of people with mental health problems by influencing policy and practice in mental health
and related services. We have two major strategic objectives: improving the life chances,
mental health and wellbeing of offenders, and of children and young people with risk factors
for offending and costly future mental health problems; and enhancing the lives of people
with mental health problems through employment. We also carry out work around broader
mental health and public policy issues.
A large part of our criminal justice programme looks at the role of diversion in the criminal
justice system for people with mental health problems. In this context, diversion is the
process to ensure that people with mental health problems who enter (or are at risk of
entering) the criminal justice system are identified and provided with appropriate mental
health services, treatment and any other support that they need. People can be diverted at
any stage of their route through the criminal justice system. Diversion can occur within or
outside the criminal justice system, and need not replace any sanctions for any offence a
person has committed. Well-designed arrangements for diversion have the potential to yield
multiple benefits including: cost and efficiency savings within the criminal justice system;
reductions in re-offending; and improvements in mental health.
We strongly welcome the Law Commission’s consultation paper on unfitness to plead which
we believe draws attention to the prevalence of mental health problems among people in
the criminal justice system and proposes a more modern and appropriate approach to the
unfitness to plead procedure.
We believe that the Law Commission’s proposals on unfitness to plead should fit into a wider
approach which seeks to divert people with mental health problems towards treatment and
other appropriate support. We are concerned that the Law Commission does not discuss in
depth the difficulties in identifying mental health problems before a person comes to court
and the possible solutions to address this. The court process provides an important
opportunity to identify mental health problems and ensure that people get access to the
necessary support. Unless the issue of identification is addressed, the Law Commission’s
proposals are unlikely to have any significant impact. For example, it may be that more
training is required for the judiciary, solicitors and barristers. It may also help to adopt a
screening process at courts using, for example, liaison and diversion teams which were
recommended by the Bradley Review and which the current Government has committed to
rolling out nationally (see “Breaking the Cycle” (Ministry of Justice, 2010)).
Comments on specific proposals and questions
Provisional Proposal 1: The current Pritchard test should be replaced and there
should be a new legal test which assess whether the accused has decisionmaking
capacity for trial. This test should take into account all the requirements
for meaningful 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 reasonably adjustments
have been made.