Unfitness to Plead Consultation Responses - Law Commission ...

which the court is satisfied that the defendant lacks capacity and cannot participate
in his trial.
We agree with the observations of Smith LJ in CPS v P [2007] EWHC 946 Admin
that in most cases, the medical evidence should be considered as part of the
evidence in the case and not the sole evidence on a freestanding application.
Although the medical evidence might on its own appear quite strong, when other
matters are considered the court might conclude that the defendant’s
understanding and ability to take part in the trial are greater than were suggested
by the doctors, and that, with the proper assistance from his legal adviser and
suitable adjustments to the procedure of the court, the trial can properly proceed to
conclusion.
The risk of sole reliance on medical evidence to determine fitness was evident in
Ferris v DPP [2004] EWHC 1221 (Admin), where the opinion of the responsible
clinician that the defendant was now fit was not shared by the psychiatrists
instructed by both the defence and prosecution and was rejected by the court.
In a recent case, an expert report concluded that the defendant, charged with a
sexual assault on a child of 4, was unable to participate in his trial because of his
hearing and communication disabilities. He gave a no comment interview to the
police and his solicitor was unable to communicate with him. However, the
prosecution adduced evidence that the defendant’s difficulties were not so severe
as to prevent communication, as suggested in the expert report. CCTV evidence
showed the defendant answering questions in a police interview, turning around to
look at the floor when asked if he had dropped a £20 note, using a mobile phone
and arguing with a staff member when he could not present a ticket at the barrier
at the railway station. There was also evidence from earlier cases to show that the
defendant could speak and communicate using gestures in addition to spoken
language.
2. Can consultees think of other changes to evidence or procedure which
would render participation in the trial process more effective for
defendants who have decision-making capacity but due to a mental
disorder or other impairment require additional assistance to participate?
Yes. We think that whenever an expert reports on the defendant’s fitness to plead
or his ability to participate in his trial, the expert should be asked consider how the
defendant’s capacity to participate can be increased and to advise on adaptations
that are necessary to facilitate or maximise participation. This should include:
an opinion on whether special measures would increase capacity or
participation in the trial, and if so, which special measures are
necessary;
how the trial process could be adapted to maximise effective
participation, for example recommendations on appropriate language
and cross examination techniques, frequent breaks and taking time to
explain proceedings to the defendant;
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