Unfitness to Plead Consultation Responses - Law Commission ...

CPS RESPONSE TO LAW COMMISSION CONSULTATION PAPER NO.
197: UNFITNESS TO PLEAD
1. Do consultees agree that we should aim to construct a scheme which
allows courts to operate a continuum whereby those accused who do not
have decision-making capacity will be subject to the section 4A hearing
and those defendants with decision-making capacity should be subject to
a trial with or without special measures depending on the level of
assistance which they need?
Yes. The starting point of the scheme should be the assumption that the defendant
has decision-making capacity unless it is established that he lacks it. The
defendant should not be treated as being unable to make a decision unless all
practical steps to help him do so have been taken without success. This would
align the new decision making capacity test with the principles set out in section 1
Mental Capacity Act 2005.
The scheme should require active consideration of the requirement in the Practice
Direction (Criminal Proceedings: Consolidation) para.III.30 that all possible steps
are taken to assist a vulnerable defendant to understand and participate in criminal
proceedings, including the use of special measures. We agree that in decision
making capacity, consideration should be given to the extent to which special
measures could assist the defendant to participate in his or her trial. This would be
comparable with the procedure for determining the competence of witnesses in
criminal proceedings as set out in section 53 Youth Justice and Criminal Evidence
Act 1999. The assessment of competence should utilise techniques or measures,
including special measures to enable a witness to understand and answer the
questions put to him or her.
The use of special measures should not be confined to the proceedings, but should
be available beforehand to enable the defendant and his legal team to prepare for
trial. This may include the use of an intermediary to help the defendant to
understand the case against him, to give his own side of the story as his proof of
evidence is drawn up and to speak to his lawyers. He may need help to follow the
case as it proceeds, to decide whether to question witnesses, to accept their
evidence or to challenge their credibility, to decide if he is to give evidence, and if
so the help or special measures he will need help to do so. (C v Sevenoaks Youth
Court [2009] EWHC 3088 (Admin))
The purpose of criminal proceedings is to determine guilt, if that is in issue, and
decide on the appropriate sentence if the defendant pleads guilty or is convicted.
All possible steps should be taken to assist a vulnerable defendant to understand
and participate in those proceedings. It is in the interests of the defendant to be
acquitted, if he is innocent, and in the interests of victims, witnesses and the wider
community that the trial takes place as soon as possible and the issue is
determined.
The ordinary trial process should, so far as necessary, be adapted to meet those
ends. The section 4A procedure should be reserved for the minority of cases in
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