Unfitness to Plead and the Overlap with Doli Incapax: An Examination of the Law Commission's Proposals for a New Capacity Test
| Published date | 01 October 2011 |
| DOI | 10.1350/jcla.2011.75.5.727 |
| Date | 01 October 2011 |
| Subject Matter | Article |
Unfitness to Plead and the
Overlap with Doli Incapax: An
Examination of the Law
Commission’s Proposals for a
New Capacity Test
Helen Howard* and Michael Bowen†
Abstract The Law Commission published Consultation Paper No. 197 in
October 2010 on unfitness to plead. This article will focus on the relation-
ship between the proposed capacity test and the abolition of the defence of
doli incapax for children aged 10 or above.
Keywords Unfitness to plead; Decision-making capacity; Law
Commission Consultation Paper No. 197; Doli incapax; Pritchard
test
An earlier article1examined Law Commission Consultation Paper No.
197 in the context of the mentally ill individual. One potential benefit2
of a change in the area of fitness to plead is that children, who perhaps
ought not to be held criminally responsible but who can no longer rely
on the defence of doli incapax,3may be found unfit to stand trial. This
article will focus on the doctrine of doli incapax and its relationship with
unfitness to plead. The meaning of the defence of doli incapax will be
examined, as will its abolition for all children aged 10 years and over.
The current and proposed tests for unfitness to plead will be considered
in the context of these children, with particular focus on the emotionally
immature 10-year-old. Ultimately, the conclusion will be reached that,
despite the Law Commission’s hopes, even the new test based on a lack
of decision-making capacity will be unlikely to assist such a defendant,
* Senior Lecturer in Law, Teesside University; e-mail: H.A.Howard@tees.ac.uk.
† Former Principal Lecturer in Law, Teesside University.
The writers are grateful to Dr Ray Arthur, Teesside University, for his comments
and advice.
1 H. A. Howard, ‘Unfitness to Plead and the Vulnerable Defendant: An Examination
of the Law Commission’s Proposals for a New Capacity Test’ (2011) 75 JCL 194.
2 Law Commission, Unfitness to Plead, Law Com. Consultation Paper No. 197
(hereafter LCCP), para. 8.67, available at http://www.justice.gov.uk/lawcommission/
unfitness-to-plead.htm, accessed 29 July 2011.
3R v JTB [2009] UKHL 20, interpreting the Crime and Disorder Act 1998, s. 34.
380 The Journal of Criminal Law (2011) 75 JCL 380–390
doi:10.1350/jcla.2011.75.5.727
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