Lack of Capacity
| Author | Helen Howard |
| DOI | 10.1177/0022018316675544 |
| Published date | 01 December 2016 |
| Date | 01 December 2016 |
| Subject Matter | Articles |
Article
Lack of Capacity: Reforming
the Law on Unfitness to Plead
Helen Howard
Teesside University, Middlesbrough, UK
Abstract
This article examines the new tests proposed for effective participation at trial and ability to
plead guilty set out in the recently published Law Commission Report.
1
The two new tests aim
to replace the current criteria on unfitness to plead developed in M (John)
2
and originating from
Pritchard.
3
While the tests are a welcome development, particular focus will be given to the
absence of a diagnostic threshold, which detracts from the quality of otherwise scrupulously
drafted proposals.
Keywords
Unfitness to plead, capacity, effective participation
Introduction
The Final Report of the Law Commission on Unfitness to Plead, published in January 2016,
4
contains
a draft Bill
5
with proposals for two new tests aimed at replacing the current test for unfitness to plead.
In the first instance, a test for capacity to participate effectively in a trial is proposed.
6
Where a
defendant is found to lack such capacity to be an effective participant in a trial, an additional test for
capacity to plead guilty is introduced,
7
allowing defendants who are unable to withstand the rigours of
a trial but who wish nevertheless to enter a guilty plea to be able to do so. Further welcome proposals
are made in relation to the trial of facts,
8
which aim to extend the tests to cover the magistrates’ and
Corresponding author:
Helen Howard, Teesside University, Borough Rd, Tees Valley, Middlesbrough TS1 3BX, UK.
E-mail: h.a.howard@tees.ac.uk
1. Law Commission, Unfitness to Plead, Vol. 1: Report. Law Com. No. 364 (2016) (‘the Report’).
2. [2003] EWCA Crim 3452. Discussed by the Law Commission, above n. 1 at para. 2.52-2.59.
3. (1836) 7 C & P 303.
4. Law Commission, above n. 1.
5. Criminal Procedure (Lack of Capacity) Bill; Law Commission, Unfitness to Plead, Vol. 2: Draft Legislation. Law Com. No.
364 at 10.
6. Ibid. at clause 1.
7. Ibid. at clause 5.
8. Ibid. at clause 9, described as the alternative finding procedure, under which all elements of the crime must be shown.
The Journal of Criminal Law
2016, Vol. 80(6) 428–435
ªThe Author(s) 2016
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0022018316675544
journals.sagepub.com/home/clj
To continue reading
Request your trial