Unfitness to Plead Consultation Responses - Law Commission ...

Law Commission Consultation paper No 197
Unfitness to Plead
Some comments by Charles de Lacy Clinical Nurse Specialist, Mental Health
Liaison Scheme, Central Criminal Court, Old Bailey, London EC4M 7EH
Disaggregated Test 3.64-3.82
To allow for disaggregated approach in some cases would widen choice. It provides
a practical way of closing some cases, where the defendant clearly understands the
options when explained by counsel, but, may simply be unable to cope with a trial
process due to the nature of the illness, even with special measures. It enables the
defendant to draw a line under proceedings, and not face the possibility of a future
trial. I note from time to time both Judges and Special Experts are content with this
approach. I would therefore suggest that this option should not be excluded.
The Legal Test 3.99
I wondered whether there was not wisdom in the Scottish approach in having, both
a legal test, and a wider pool of experts in deciding the issues of fitness. I therefore
think the pool of experts should be widened beyond two doctors to determine fitness
to plead under a capacity decision making process. This would also recognise the
developments not only in psychiatry but also in the fields of psychology.
Role of the Judge 3.101
This gives the Judge a good degree of discretion. On the other hand if the Judge
decides issues of fitness around assessments of trial complexity it draws him into the
decision making process beyond simply making a judgment between potentially
conflicting special experts. I would suggest it’s the special experts who should
evaluate trial complexity and capacity and make their recommendations
accordingly. The Judge should decide between the conflicting opinions.
Special Measures 4.27
Agree it makes sense to look more carefully at special measures in the trial process
and how they may address concerns raised by any evaluation of fitness. In my
experience it is not uncommon for psychological reports served pre trial, which find
the defendant fit to plead, to also advise on special measures.
Giving Evidence 4.31
Agree that if a defence team thought it advantageous to their defence of the client
the admission of expert evidence would make sense.