Unfitness to Plead Consultation Responses - Law Commission ...

25. We consider that Provisional Proposal 4 would produce serious practical
difficulties. In our view it would lead to discussion of detail which would
lead to an accused being found to be unfit to plead when the reality is that
he or she has the capacity to make decisions and participate in the
essential process. Further it would be likely to inhibit the professional
judgment of counsel as it would be difficult to know whether a decision
was one which counsel could make from his or her own expertise or one
which it was necessary for the accused to confirm.
26. We consider that to involve the judge in a detailed assessment of the
issues may lead to micro-management of the case. It may lead to the
judge having to be told matters which should remain within the realms of
professional privilege. Furthermore, even at the beginning of a trial, it is
not possible to know whether some issue might arise which the accused
might not have the capacity to decide. Accordingly we do not consider
Provisional Proposal 4 would be wise.
27. We do not support the suggestion that there should be two tests: one for
fitness to plead and another for fitness to stand trial. We accept that in the
civil context it is practicable for there to be a consideration of a specific
issue. If the person does not have capacity to make a decision, then civil
litigation may nevertheless continue through a “Next Friend”. No such
procedure could be applied in the criminal context. A decision must be
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