Unfitness to Plead Consultation Responses - Law Commission ...

magistrates/District Judges, keeping the trial short and using appropriate language.
However, despite these adaptations, some young people are unable to participate in
their trial and proceedings are stayed. We submit that this occurs more frequently than
suggested in paragraph 8.35 of the Consultation Paper.
A 13 year old youth was found unable to participate in his trial for a sexual offence,
because he had both language and educational difficulties, and was functioning at the
level of a 7 year old. He was also suffering from mental health problems, which may
have been caused by his witnessing rape and murder prior to seeking asylum in the
UK. The case was discontinued because the youth could not participate in his trial.
This caused concern because the youth was not diverted to appropriate services, and
also because he posed a risk of committing further offences, having been diverted
from prosecution twice for similar sexual offences.
Another 13 year old living in a children’s home was charged with sexual assaults on
three female staff members. Reports showed that he had severe learning difficulties
and an inability to remember what he had done and was unable to follow court
procedure. The case was stayed, and care staff were concerned that his placement in
the home was inappropriate and he needed to receive closer supervision.
A 17 year old youth with hearing and communication difficulties in addition to
learning disability has twice had proceedings stayed because he has been found
unable to participate in the trial process. The subject matter of these proceedings has
been serious sexual assaults against children as young as 4 years of age. Despite
reports that have persuaded the court that he is unfit, he has pleaded guilty to other
types of offences, including burglary and Public Order Act 1986 offences.
The fact finding procedure is rarely used as in the majority of cases, the criteria for
making a hospital order are not satisfied, usually because of the nature of the
diagnosed disorder(s).
A 15 year old was charged with five sexual offences committed against two nine year
olds. All three have learning difficulties, and the defendant’s police interview was
terminated as it was obvious that he did not understand the questions that were put to
him. An independent psychologist report found that the youth was unfit to plead or to
stand trial, but due to the seriousness of the charges and the defendant’s previous out
of court disposal for a sexual assault it was not in the defendant’s interest nor the
wider public interest for no action to be taken. A further psychiatrist report has been
requested, but it is unlikely to recommend a hospital order.
It is the absence of an appropriate disposal on a finding of facts that causes
considerable difficulty in the youth court. The nature of the disabilities and disorders
suffered by young offenders rarely meets the criteria for compulsory detention and
treatment in hospitals. The shortage of specialist Mental Health Act facilities for
children and young people means that even where the clinical criteria for detention
under the Mental Health Act 1983 are met, it is not always possible to admit a young
person who is unfit to plead and so ill as to require compulsory medical treatment.
A 14 year old was found unfit to plead to a charge of arson, after he set fire to his
grandmother’s house and went back into the smoke filled house saying that he wanted
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