Unfitness to Plead and the Vulnerable Defendant: An Examination of the Law Commission's Proposals for a New Capacity Test
| Date | 01 June 2011 |
| Published date | 01 June 2011 |
| DOI | 10.1350/jcla.2011.75.3.705 |
| Subject Matter | Article |
Unfitness to Plead and the
Vulnerable Defendant: An
Examination of the Law
Commission’s Proposals for a
New Capacity Test
Helen Howard*
Abstract The Law Commission published Consultation Paper No. 197 in
October 2010 on unfitness to plead. Among the many issues to be covered
were: an examination of the test for capacity which is narrower than the
test for capacity under the Mental Capacity Act 2005; the scope of the trial
of facts; and whether accident, mistake or self-defence could be raised as
part of the defence in the context of unfitness to plead. This article will
examine some of the proposals made in the Law Commission’s Consulta-
tion Paper with particular focus on the meaning of capacity, along with the
scope and limitations of the current law on unfitness to plead.
Keywords Unfitness to plead; Decision-making capacity, Law
Commission Consultation Paper No. 197; Reform proposals;
Pritchard test
We should be judged as a society by how we protect our vulnerable
members—in particular, the young, the elderly, and the physically and
mentally disadvantaged. Part of this protection must take the form of
shielding certain vulnerable individuals from the criminal justice sys-
tem, either from criminal proceedings or the punishment that follows.
In pursuit of this goal, we have the doctrine of doli incapax,1the law
relating to fitness to plead, and the insanity defence. The vulnerable
defendant who is of particular interest in this article is the paranoid
schizophrenic who seriously injures a number of people after hearing
voices telling him that they are possessed by the devil. Clearly, under the
current insanity defence,2no defence would be available to him, given
that he understands the nature and quality of his act, i.e. that he is
injuring human beings, and assuming that he understands that what he
is doing is legally wrong.3
* Senior Lecturer in Law, Teesside University; e-mail: H.A.Howard@tees.ac.uk. The
writer is grateful to Mike Bowen for his insightful comments on an earlier draft.
1 Given the developments in the law of doli incapax, another area of concern relates
to the emotionally immature young person who is above the age of criminal
responsibility, but lacks the ability to comprehend the criminal proceedings being
taken against him. It is not proposed that the doctrine and its overlap with
unfitness to plead will be examined in this article.
2M’Naghten Rules ((1843) 8 ER 718): (1) Every man is presumed to be sane until the
contrary is proved; (2) It must be proved that, at the time of committing the act, D
was labouring under such a defect of reason from disease of the mind, as not to
know the nature and quality of the act, or that it was wrong.
3R v Windle [1952] 2 QB 826; R v Johnson [2007] EWCA Crim 1978.
194 The Journal of Criminal Law (2011) 75 JCL 194–203
doi:10.1350/jcla.2011.75.3.705
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