Unfitness to Plead Consultation Responses - Law Commission ...

the incidence of mental disorder issues amongst defendants. Further they
are involved in devising effective procedures to identify those accused of
a criminal offence who are or maybe suffering from mental disorders or
learning disabilities or difficulties and, where appropriate divert them
either from the criminal justice system or to appropriate agencies who can
assist. This aspect may be of significance when considering the position
in relation to cases being heard in the Magistrates’ Courts.
Consideration of the issues raised in the Consultation Paper.
Provisional Proposal 1: The current Pritchard test should be replaced and
there should be a new legal test which assesses whether the accused has
decision-making capacity for trial. This test should take into account all
requirements for meaningful participation in the criminal proceedings.
Reply
15. The first issue is whether the present test permits sufficiently of the active
participation of an accused who is suffering from a disability.
16. We agree that the present Pritchard test does not and should be replaced
by a decision-making capacity test. We accept that the current test as set
out and developed from R v Pritchard is based upon cognitive ability. As
such, it is insufficient to accord with the approaches of the medical
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