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Unfitness to Plead The Law Commission Consultation Paper No 197 UNFITNESS TO PLEAD A Consultation Paper ii THE LAW COMMISSION – HOW WE CONSULT About the Law Commission The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Munby (Chairman), Professor Elizabeth Cooke, Mr David Hertzell, Professor David Ormerod and Miss Frances Patterson QC. The Chief Executive is: Mr Mark Ormerod CB. Address for correspondence: Steel House, 11 Tothill Street, London SW1H 9LJ. Topic of this consultation This consultation paper deals with the law on unfitness to plead. A summary of the main points can be found in Part 1. Scope of this consultation The purpose of this consultation is to generate responses to our provisional proposals. Geographical scope The contents of this consultation paper refer to the law of England and Wales. Impact assessment An impact assessment is included. Previous engagement N/A Duration of the consultation We invite responses to our provisional proposals and questions from 27 October 2010 to 27 January 2011. How to respond Send your responses either – By email to: [email protected] OR By post to: address above Tel: 020-3334-0271 / Fax: 020-3334-0201 If you send your comments by post, it would be helpful if, whenever possible, you could send them to us electronically as well (for example, on CD or by email to the above address, in any commonly used format). After the consultation In the light of the responses we receive, we will decide our final recommendations and we will present them to Parliament. We hope to publish our report by summer 2012. It will be for Parliament to decide whether to approve any changes to the law. Code of Practice We are a signatory to the Government’s Code of Practice on Consultation and carry out our consultations in accordance with the Code criteria (set out on the next page). Freedom of information We will treat all responses as public documents in accordance with the Freedom of Information Act and we may attribute comments and include a list of all respondents' names in any final report we publish. If you wish to submit a confidential response, you should contact us before sending the response. PLEASE NOTE – We will disregard automatic confidentiality statements generated by an IT system. Availability of this consultation paper You can view/download it free of charge on our website at: http://www.lawcom.gov.uk/docs/cp197.pdf. iii CODE OF PRACTICE ON CONSULTATION THE SEVEN CONSULTATION CRITERIA Criterion 1: When to consult Formal consultation should take place at a stage when there is scope to influence the policy outcome. Criterion 2: Duration of consultation exercise Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible Criterion 3: Clarity and scope of impact Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals. Criterion 4: Accessibility of consultation exercises Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach. Criterion 5: The burden of consultation Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees’ buy-in to the process is to be obtained. Criterion 6: Responsiveness of consultation exercises Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. Criterion 7: Capacity to consult Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience. CONSULTATION CO-ORDINATOR The Law Commission’s Consultation Co-ordinator is Phil Hodgson. You are invited to send comments to the Consultation Co-ordinator about the extent to which the criteria have been observed and any ways of improving the consultation process. Contact: Phil Hodgson, Consultation Co-ordinator, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ – Email: [email protected] Full details of the Government’s Code of Practice on Consultation are available on the BIS website at http://www.bis.gov.uk/policies/better-regulation/consultation-guidance. iv THE LAW COMMISSION UNFITNESS TO PLEAD CONTENTS Paragraph Page PART 1: INTRODUCTION 1 The law governing the present procedure 1.4 1 The thinking behind the current unfitness to plead procedure 1.9 3 The scope of this consultation paper 1.15 5 The difference between unfitness to plead and 1.16 5 insanity Terminology 1.17 5 Structure of this consultation paper 1.22 7 Provisional proposals in this consultation paper 1.34 9 Acknowledgements 1.36 12 PART 2: THE EXISTING LAW 13 Introduction 2.1 13 The history of the law on unfitness to plead 2.2 13 Statutory developments 2.6 14 The Criminal Procedure (Insanity) Act 1964 2.7 15 The Butler Report 2.15 16 The Criminal Procedure (Insanity and Unfitness to 2.21 19 Plead) Act 1991 Procedure in section 4A for determining the 2.25 21 facts Summary of the distinction between a trial 2.28 21 and a section 4A hearing The Domestic Violence, Crime and Victims Act 2004 2.32 23 Who determines the trial of the issue under 2.32 23 the current law? v Paragraph Page Disposal of the case in the event that the accused is 2.36 25 found to have done the act Hospital orders under the Mental Health 2.39 25 Act 1983 Summary of the statutory developments 2.42 26 The legal test for unfitness to plead 2.43 27 The foundation of the Pritchard criteria 2.44 27 Recent interpretation of the Pritchard criteria 2.52 30 Problems with the Pritchard criteria 2.60 32 The disproportionate emphasis on cognitive 2.69 37 ability The failure to take capacity and participation into account as part of the 2.72 38 legal test The practical effect of a failure to take 2.75 39 capacity into account The relationship between capacity and participation 2.88 43 The accused’s right to participate effectively in the 2.89 43 trial Vulnerable defendants 2.103 49 Conclusions 2.106 50 PART 3: A NEW LEGAL TEST 51 Introduction 3.1 51 What we mean by “decision-making capacity” 3.2 51 A capacity based test 3.23 57 The capacity test under civil law 3.25 58 Capacity in criminal proceedings 3.34 60 The need for decision-making capacity to 3.48 64 be rational The application of a capacity based test to criminal 3.58 66 proceedings The approach which has been adopted in 3.59 66 the clinical literature vi Paragraph Page A traditional unitary construct 3.60 66 A disaggregated test 3.64 67 The principle of proportionality 3.83 72 A potential lack of certainty 3.90 73 The way in which the different 3.94 75 jurisdictions address the issues The role of sentencing 3.95 75 Overcoming the potential problems with a 3.98 76 unitary construct Converting a trial to a section 4A hearing 3.102 77 Conclusions 3.104 78 PART 4: THE ROLE OF SPECIAL MEASURES 79 Introduction 4.1 79 The use of special measures 4.4 80 Problems with special measures in practice 4.10 82 What more could be done in relation to special 4.13 83 measures Special measures and capacity 4.16 86 Special measures as a factor in the legal test 4.19 86 Further proposals on special measures 4.28 88 The relevance of expert evidence 4.28 88 PART 5: ASSESSING THE CAPACITY OF THE ACCUSED 91 Introduction 5.1 91 The relationship between law and psychiatry 5.4 92 The absence of a defined psychiatric test to assess 5.6 93 unfitness to plead The role of a defined psychiatric test to assess 5.14 95 capacity in the criminal context Who should assess capacity? 5.18 97 An example of a legal test which does not 5.22 98 necessarily contemplate psychiatric input vii Paragraph Page Establishing a lack of decision-making capacity 5.29 101 Finding a suitable psychiatric test 5.37 103 Capacity to do some things but not others 5.41 104 PART 6: THE SECTION 4A HEARING 106 Introduction 6.1 106 The case for reform: problems with the section 4A hearing 6.11 108 The decision of the House of Lords in Antoine 6.13 109 Problems with the decision in Antoine 6.24 111 Defences 6.30 113 Secondary participation 6.36 114 Inchoate offences 6.39 115 Conclusion 6.41 116 The application of article 6 of the European 6.42 116 Convention on Human Rights The decision of the House of Lords in H 6.44 117 The decision of the Court of Appeal in Chal 6.49 119 Classifying the section 4A hearing as either 6.52 120 a criminal or a civil procedure Conclusion 6.54 120 Options for reform of the section 4A hearing 6.55 120 Option 1 – do nothing 6.57 121 Australian Capital Territory (ACT) 6.59 121 South Australia 6.62 122 Conclusion on option 1 6.69 124 Option 2 – the recommendations of the Butler 6.72 125 Committee New South Wales 6.75 125 Northern Territory 6.80 126 Victoria 6.82 127 Conclusion on option 2 6.83 127 viii Paragraph Page Option 3 – abolish the section 4A hearing 6.86 128 Conclusion on option 3 6.109 132 Option 4 – the Scottish procedure 6.112 133 Problems with option 4 6.118 134 Conclusion on option 4 6.127 136 Option 5 – our preferred option for reform of the 6.128 136 section 4A hearing Significance of the special verdict 6.135 138 Conclusion on option 5 6.138 139 Other issues in relation to option 5 6.141 140 The hearing to determine the special 6.142 140 verdict Finding that the accused did an act other 6.154 142 than the act specifically
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