Unfitness to Plead Consultation Responses - Law Commission ...

of the decision the accused must make in the context of the trial which he
faces.
Reply
21. As these Provisional Proposals are set as alternatives we shall give one
reply to cover each proposal. We accept that it could be useful to import
the criteria set out in the Mental Capacity Act 2005. That means that the
accused would have to:
(a) Understand the information relevant to the decisions that he or she would
have to make in the course of the trial;
(b) Retain that information;
(c) Use or weigh that information as part of the decision-making process;
(d) Communicate his or her decisions.
22. These criteria, however, beg the question: what are those decisions? The
Consultation Paper speaks about the “whole spectrum of trial decisions”.
We have difficulty in understanding precisely what is meant by this
expression.
23. We think some assistance can be gained from bearing in mind the duties
of Counsel in this regard as set out in the Bar Council Code of Conduct.
Counsel is required to exercise his or her personal judgment in all
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