Unfitness to Plead Consultation Responses - Law Commission ...

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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 decision-making capacity should be subject to a trial with or without special measures depending on the level of assistance which they need? We agree that the test for unfitness to plead needs replacing to align it with modern psychiatric thinking. The proposed decision-making capacity test appears a more appropriate way of assessing whether a person is able to stand trial. Importantly, it is focused on an individual’s abilities and is not determined solely by reference to that individual’s mental health diagnosis. We also welcome the inclusion of special measures in the test. It is important that those who are able to stand trial with assistance are allowed to do so, and we would encourage greater consideration and use by the courts of special measures for people with mental health problems. We would stress, however, that these measures must ensure effective participation on the part of the accused and should be reviewed where necessary for example, if the person’s mental health deteriorates during the course of a trial. We would also welcome greater discussion of the role that sections 35 and 36 of the Mental Health Act 1983 should play alongside the law on unfitness to plead. For example, section 36 allows people to be remanded to hospital for treatment which could be appropriate in many cases where treatment will improve a person’s mental health problems so that the trial can take place within a reasonable period of time. Provisional Proposal 4: In determining the defendant’s decision-making capacity, it would be incumbent on the judge to take account of the complexity of the particular proceedings and gravity of the outcome. In particular the judge should take account of how important any disability is likely to be in the context of the decision the accused must make in the context of the trial which the accused faces. We agree with the Law Commission’s reasoning as to why it would be difficult to include socalled ‘proportionality’ considerations in a test for decision-making capacity in the criminal context. We would be particularly concerned that the ‘gravity’ of the outcome would be determined, for example, by reference to the possible length of a custodial sentence. This could, for example, fail to take into account the detrimental effect that short sentences can have on a person with mental health problems. For offenders with mental health problems, short sentences do little to prevent re-offending, can be detrimental to an individual’s mental health and are also costly to the tax payer. They can result in a person losing their job, home, benefits and family. Short sentences can also disrupt any health care that prisoners may be receiving in the community. At the same time, they do not provide enough time for prisoners to have their needs assessed in prison or to get access to the services that could help. We would therefore be concerned about a decision-making capacity test which requires the judge to take into account the matters detailed in provisional proposal 4. 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. Obtaining access to psychiatric assessment can be a significant hurdle at different stages in criminal proceedings and could be one reason behind the low numbers of unfitness to plead hearings. Also, there is some evidence that psychiatric reports can be inappropriate or unfit for purpose. A defined psychiatric test could result in more relevant psychiatric reports and
could possibly mean that they take less time to produce. We therefore see the benefits of having a defined psychiatric test but would welcome more evidence of how it would operate in practice and whether it would allow for sufficient flexibility.
Page 1 and 2: Unfitness to Plead Consultation Res
Page 3 and 4: CONSULTEES, LISTED ALPHABETICALLY A
Page 5 and 6: Sarkar, Sameer Searle, Geoff Sense
Page 7 and 8: o The UN Committee on the Rights of
Page 9 and 10: Rethinking the Criminal Responsibil
Page 11 and 12: asic competencies of young people a
Page 13 and 14: parliament to consider rather than
Page 15 and 16: preventing crime. Graham and Bowlin
Page 17 and 18: other areas of the law’ and this
Page 19 and 20: absolute minimum age of criminal re
Page 21 and 22: The views of the judiciary in the U
Page 23 and 24: all children who are alleged to hav
Page 25 and 26: 39 Trevor Jones‘Public Opinion, P
Page 27 and 28: Charity No 1137430 Company No 60065
Page 29 and 30: Charity No 1137430 Company No 60065
Page 31 and 32: From: Bickle Andrew Sent: 10 Januar
Page 33 and 34: Comments on “Unfitness to Plead,
Page 35 and 36: 8. It would be very easy to insert
Page 37 and 38: himself at trial. The Court did not
Page 39 and 40: -----Original Message----- From: Br
Page 41 and 42: Response The Society welcomes the o
Page 43 and 44: for the task in hand. This would ap
Page 45 and 46: 1. Introduction “UNFITNESS TO PLE
Page 47 and 48: On the other hand, the so-called co
Page 49 and 50: The Law Commissioners, Steel House,
Page 51: Law Commission consultation on unfi
Page 55 and 56: whether present at the time of the
Page 57 and 58: disposals. We consider that the ref
Page 59 and 60: difficulties may or may not be fit
Page 61 and 62: profession to treatment, the civil
Page 63 and 64: of the decision the accused must ma
Page 65 and 66: 25. We consider that Provisional Pr
Page 67 and 68: Provisional Proposal 5: Decision-ma
Page 69 and 70: giving evidence, it is unlikely tha
Page 71 and 72: Provisional Proposal 7: A defined p
Page 73 and 74: 42. The difficulty lies in that the
Page 75 and 76: envisages that there could be an ac
Page 77 and 78: Reply 50. We consider we have alrea
Page 79 and 80: Question 6: Are there circumstances
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Page 83 and 84: determination of jurisdiction as ap
Page 85 and 86: age” in which term we include the
Page 87 and 88: The assumption that has been made i
Page 89 and 90: which the court is satisfied that t
Page 91 and 92: The current section 4A procedure re
Page 93 and 94: The CPS then re-reviews the case in
Page 95 and 96: cases, there should be a single tri
Page 97 and 98: magistrates/District Judges, keepin
Page 99 and 100: Law Commission Consultation paper N
Page 101 and 102: 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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Question 12: How far if at all, doe
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Consultation Proposals Provisional
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agreement on the primary issue enga
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It would of course be concerning if
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witnesses who are commissioned to u
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PO BOX 3544 Wokingham, RG40 9FA T 0
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Response to Consultation Paper on U
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Unfitness to Plead Sense Response P
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- Congenitally deafblind children a
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The deafblind population has been s
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take up to 15 minutes to read a sho
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For example - A deafblind person C
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- Allowing the deafblind person to
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RESPONSE TO THE LAW COMMISSION CONS
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g. However, In some circumstances,
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QUESTION 9 Do consultees think that
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Obviously the judge should be guide
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Question 7: Should an accused who i
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problems which arose in B & others
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Page 4 of 4
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1. Introduction Victim Support is t
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In our view, a general difficulty w
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We are in support of this provision
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Preliminary Comments Dr Eileen Viza
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3 ‘developmental immaturity’ co
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PART 9 LIST OF PROVISIONAL PROPOSAL
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7 (9) If the accused is acquitted p
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9 (9) Do consultees think that if a
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11 Other References All Party Parli
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