Unfitness to Plead Consultation Responses - Law Commission ...

cases, there should be a single trial for those who are jointly indicted. This avoids the
distress and inconvenience cause to victims and witnesses if they are required to give
evidence more than once and is an efficient use of resources.
A direction to the jury to consider separately the issues in relation to each count and
each defendant and make separate decisions upon them should be sufficient to ensure
fairness to both fit and unfit defendants. However, the Judge retains discretion to
order severance where there is a risk of injustice to any defendant.
8. Do consultees think that the capacity based test which we have proposed
for trial on indictment should apply equally to proceedings which are
triable summarily?
We think that there should be a single test for capacity in both the Crown Court and
magistrates’ courts. However, expert reports should take into account the less formal
nature of the magistrates’ court when conducting an assessment of capacity. There is
greater scope for the magistrates’ court to adapt its procedure to enable defendants to
participate, especially if lay magistrates and District Judges received specialist
training in dealing with defendants who are under a disability. It follows that if both
courts are using the same capacity test, the orders that can be made following a
section 4A finding should be the same, save that only the Crown Court should have
the power to make a restriction order. This would enable magistrates’ courts to make
a supervision order where the nature or degree of the defendant’s disability makes a
hospital order inappropriate. A new order should be available to both courts that is
comparable with the Mental Health Treatment Requirement that can be included in a
Community Order or Youth Rehabilitation Order on conviction. This would benefit a
defendant who does not meet the criteria for a hospital order but has a condition that
is likely to benefit from treatment, including treatment from a psychologist or GP
rather than under the supervision of a psychiatrist.
9. Do consultees think that if an accused lacks decision making capacity
there should be a mandatory fact-finding procedure in the magistrates’
court?
Yes. We agree that there should be a fact finding procedure that requires the
prosecution to prove that the defendant did the act or made the omission charged. A
statutory procedure would reduce the current confusion surrounding the use of the
magistrates’ courts powers under section 37(3) Mental Heath Act 1983 and provide
the same safeguard against compulsory detention and treatment in hospital that exists
in the Crown Court. A statutory procedure would achieve clarity and certainty but
would need to be drafted in a way that did not detract from the inherently simple and
summary nature of justice in magistrates’ courts.
The CPS has no direct contact with defendants prior to charge, so is not unusual for
the prosecution to become aware of any mental disorder for the first time when the
defendant attends court. The issue may be raised by the defendant’s solicitor, or it
may become apparent during proceedings that the defendant is suffering from a
mental disorder. The CPS may re review the case in the light of the mental disorder,
8