Unfitness to Plead Consultation Responses - Law Commission ...

profession to treatment, the civil law system as set out in the Mental
Capacity Act or the jurisprudence of the European Court of Human
Rights. If there is to be amendment of the law, we consider that it is
sensible to seek to provide a test which is compatible with the general
approach across that spectrum.
17. We consider that the directions as given by the judge in R v John M
[2003] EWCA Crim 3452 and discussed at Para 2.52 to 2.59 went some
way to affecting an active role for the accused. It is worth noting his
inclusion of the ability for the accused to give evidence if he wishes in his
own defence; an omission from the original criteria due presumably to the
prohibition on a defendant given evidence on his own behalf until the
Criminal Evidence Act 1898. We consider that they may afford useful
guidance until any amendment of the law could be implemented.
18. We do not think that such new test will necessarily remedy all the evils
which are pointed out as criticisms at Paras 2.63 to 2.65. Perhaps, more
importantly, we suggest that it will have practical and resource
consequences.
Provisional Proposal 2: A new decision-making capacity test should not
require that any decision the accused makes must be rational or wise.
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