The Law Commission’s long-awaited report on unfitness to plead was published on 13 January 2016 following a lengthy consultation process that began in 2010. The report recommends reform of the whole unfitness to plead framework, and makes specific recommendations in relation to children including mandatory specialist training for all legal practitioners and members of the judiciary engaged in cases involving child defendants in any court.
The report recommends reform of the whole unfitness to plead framework, modernising the test for unfitness to plead and widening it to encompass effective participation issues. The report also recommends the same legal test and disposals should be available in the youth and magistrates’ courts as in the Crown Court (currently there is no legislative framework for fitness to please in the magistrates’ and youth courts). The new test would ask whether the defendant is able to participate effectively in their trial.
The recommendations include a series of measures to help defendants who have participation difficulties to engage effectively in their trial, including a statutory entitlement for defendants to assistance from an intermediary and training for judges and other legal practitioners.
The report recommends that the assessment of a defendant’s ‘capacity’ to participate in proceedings should be addressed at the outset of proceedings. The report makes a number of recommendations relating specifically to children, identifying the higher prevalence of effective participation issues in the youth court due to natural developmental immaturity and a greater prevalence of psychiatric disorders and learning disabilities or difficulties amongst children and adolescents. It recommends that all children appearing for the first time in the youth court should be screened for participation difficulties and that there should be a mandatory specialist training on issues relevant to trying children, which should be extended to all legal practitioners and members of the judiciary engaged in cases involving child defendants in any court.
YJLC responded to the consultation and is pleased to see some of its comments have been incorporated into the recommendations.
Read a summary of the report here.