Unfitness to Plead Consultation Responses - Law Commission ...

assist especially in relation to capacity of those with learning difficulties.
Their expertise is to be preferred to the qualification of a psychiatrist who
is a specialist in mental illnesses but has little or no experience of persons
with learning difficulties. If the present limitation is to remain, it must
require that the psychiatrist does have expertise in the specific type of
disability from which the accused suffers.
The problem of a Section 4A hearing.
39. We propose to set out our views and in so doing respond to the
Provisional Proposals and answer the questions posed.
40. We agree that there must be a hearing to determine that the act done by
the accused was unlawful. Where no mental element arises, the present
procedure works well. The role of the independent representative has
proved to be successful and could be used to provide participation in the
Provisional Proposal 8 as suggested at Paragraph 6.129.
41. In some cases, the determination of whether the accused has done the act
involves consideration of a mental element. Where this arises, we
consider that it is important that a person who is under a disability should
have the same protection as one who is not. It cannot be fair for a person
who is under a disability to be subjected to any of the orders available if,
in the same circumstances, a person not unfit to plead would be acquitted.
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