Unfitness to Plead Consultation Responses - Law Commission ...

professional activities. He or she is personally responsible for the conduct
and presentation of the case. Specific duties include consideration of
further enquiries, the instruction of an expert, the determination of the
witnesses necessary and the making of admissions. All these are matters
upon which counsel will take instructions from the accused, either
directly or through an instructing solicitor. The Code requires Counsel to
advise on the plea to be entered and whether the accused should give
evidence but in respect of only these two issues is it specified that the
accused must make the decision. These must therefore be the minimum
criteria. An accused must have capacity in relation to those matters. But
the Consultation paper then speaks of capacity reflecting, “an
appreciation of what is at stake in a trial and what are the likely
consequences for the defendant.” It is a capacity reflecting, “an
appreciation of what is at stake in a trial and what the likely consequences
for the defendant of a decision one way or the other may be. If that is the
minimum extent we would agree.
24. It is clearly good practice to involve a client in as many of the decisions
as are possible. But even with a client in respect of whom no issue of
fitness to plead arises, there will be decisions which have to be left to the
professional judgment of counsel. Accordingly, we would support
Provisional Proposal 3.
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