Unfitness to Plead Consultation Responses - Law Commission ...

safety of others”. We consider that the implementation of the proposed
changes may have some effect upon these aspects as we mention later.
10. We submit that the general approach should be that a person charged with
a criminal offence should, if possible, have his or her guilt decided by
trial either by a jury or by magistrates. That should involve the accused
being able to take a part in the trial process. The focus must be to
determine the extent of that participation. Under the present criteria to
determine whether an accused is unfit to plead means that participation
may be very restricted. If the proposed test is a “decision-making” one
then the potential participation would increase. That would depend upon
the ambit of the decisions to be made by the accused. We do, of course,
also agree that because of the disability of the defendant it may be
inappropriate for him or her to be tried.
11. In considering the issues raised in this Consultation Paper, in our view, it
is important to bear in mind that the particular disability may be due to
many different factors which may call for different considerations when
determining their cases. A person suffering from a mental disorder such
as schizophrenia may not be able fit to plead no matter what measures are
taken to assist him. On the other hand, he may recover quickly because of
appropriate medication so that he is fit to plead. A person with learning
5