Unfitness to Plead Consultation Responses - Law Commission ...

and the case may be discontinued on the basis that the public interest does not require
a prosecution.
In a recent trial for assault, a medical report coupled with the defendant’s incredible
evidence showed that the defendant was suffering from dementia, and the case was
discontinued. In another case, a retired lady was charged with theft (shoplifting),
following expert advice that she knew what she was doing and that a prosecution
would reinforce that her behaviour was unacceptable. However, her behaviour in
court demonstrated that she did not know where she was, and further enquiries
revealed that she had a five year history of shoplifting, assaults on store staff and
wandering the streets at night in her night clothes. The case was discontinued as the
cost of further psychiatric reports was disproportionate to the seriousness of the
behaviour.
10. If consultees think that there should be a mandatory fact-finding
procedure, do they think it should be limited to consideration of the
external elements of the offence or should it mirror our provisional
proposals 8 and 9.
We think that the procedure in all criminal courts should be limited to consideration
of the external elements of the offence.
11. Do the matters raised in questions 8, 9 and 10 merit equal consideration
in relation to the procedure in the youth courts?
Yes. The need for an effective procedure in the youth court merits greater
consideration because the issue of effective participation/fitness occurs more
frequently , the offences tried in youth court are more serious and more cases are
stayed than in magistrates’ courts. The disposals available on a finding of unfitness
are rarely suitable to address the disorders commonly diagnosed in youths, nor do
they tackle the offending behaviour.
There is anecdotal evidence of an increase in the number of youth prosecutions that
are stayed as an abuse of process because the youth lacks sufficient cognitive ability
to participate in his trial and therefore is denied his right under Article 6 ECHR to a
fair trial.
In our experience, the issue of fitness to participate in a trial arises more frequently in
the youth court than in the adult magistrates’ court. We agree with the observation of
the Judge in TP v West London Youth Court [2005] EWHC 2583 (Admin) that many
young defendants are intellectually limited and many have difficulty in appreciating
the ingredients of some offences. 23% young offenders have an IQ of 69 or below and
an additional 36% have borderline difficulties with IQs in the range of 70 to 79 (Child
and Adolescent Mental Health Services Interdepartmental Report 15 June 2005
paragraph 8). In addition, many youths have disabilities, disorders, difficulties and
conditions that either individually or cumulatively have a negative effect on their
ability to participate in their trial.
The youth court is a specialist court and adapts its procedures to maximise effective
trial participation e.g. by the use of specialist prosecutors, solicitors and
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