Unfitness to Plead Consultation Responses - Law Commission ...

to die. He was rescued by a neighbour, although the fumes could have killed them
both. There were only two hospitals in the country that were capable of treating him,
one could not meet his needs and the other had only one bed, and two other young
people who needed it. The bed was made available for this youth after the prosecutor,
with the consent of the youth and his solicitor, wrote to the consultant pleading for it.
In another recent case, a youth charged with wounding with intent was found unfit to
plead in the Crown Court, where his case was being heard due to the gravity of the
offence. He was found to have committed the act and to meet the criteria for a
hospital order. However, no suitable placement could be provided, so an absolute
discharge was made.
The result of the current practice in the youth court is that young people who are
charged with criminal offences are immune from criminal justice intervention if their
disorder or disability prevents them from participating in their trials.
The offences tried in the youth court are often far more serious than the summary and
less serious either way matters tried in the adult court. The youth court has
jurisdiction to try all offences except homicide and those offences involving
prohibited weapons that attract a three year mandatory minimum sentence for 16 and
17 year olds, and routinely hears cases of robbery, rape and grievous bodily harm.
When these proceedings are stayed and the court makes no order, the confidence of
victims and communities in the youth justice system is undermined, particularly
where the offending behaviour is violent, sexual or persistent. There is also a risk that
unless there is appropriate intervention to tackle such behaviour, the offending will
continue and the mental disability will deteriorate and the youth will add to the
growing number of prisoners with mental health problems when he reaches
adulthood.
.
12. How far if at all, does the age of criminal responsibility factor into the
issue of decision-making capacity in youth trials?
The emotional maturity of the young person, IQ, disabilities, disorders, learning
difficulties and difficulties in speech, communication and language play a greater role
in determining decision making capacity than chronological age alone. The CPS will
already have considered chronological age when deciding whether the Full Code Test
has been satisfied. This includes careful consideration of whether such a young
defendant has the mens rea necessary for the offence and whether the public interest
requires a prosecution. In general, youths are less culpable than adults as they have
less insight into the causes and consequences of their offending behaviour.
Strategy and Policy Directorate
Crown Prosecution Service
January 2011
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