Human Rights and the Possible Lowering of the Threshold of Unfitness to Plead in England.

1. A Left Field View from Down Under. Human Rights and the Possible Lowering of the Threshold of Unfitness to Plead in England.

3. 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.

4. This consultation paper deals with the law on unfitness to plead. The purpose of this consultation is to generate responses to our provisional proposals. The contents of this consultation paper refer to the law of England and Wales. We invite responses to our provisional proposals and questions from 27 October 2010 to 27 January 2011.

5. It reviews the current criteria for finding an individual unfit to plead “At worst, the criteria simply set too high a threshold for finding an accused to be unfit to plead and are inconsistent with the modern trial process”. A new legal test based on decision-making capacity is proposed. One the paper anticipates lowering the threshold in line with “modern trial process”.

6. A likely consequence of such a change in legal processes The transfer of disposition from prisons to mental health legislative care for a group of impulsive high risk offenders. Individuals who are still likely to be perceived as posing an ongoing risk to others long after the time they would have been detained. Had they been found fit and sentenced to prison.

7. Does a change from sentence to a risk based detention impinge on the offenders Human Rights? A similar change is currently playing out in New Zealand since the introduction of the ID(CCR) Act. New Zealand case law English Mental Health Act 1983.

8. Meanwhile back in the Law Commission Document. Evidence Base (for summary sheets) Human Rights are specifically considered. The criteria however focus on the intellectual abilities of the accused, and do not take into account his or her ability to make decisions in relation to the trial. There is a real danger that the Pritchard test is therefore under inclusive.

9. The underlying reasoning in the cases gives rise to a broad principle Namely, that effective participation requires active involvement on the part of the accused rather than just a passive presence. If the legal test is not broad enough to ensure that those accused who stand trial are capable of effective participation, then there is a clear risk that their trials will be trials incompatible with article 6. The Pritchard test is therefore outdated in the light of the jurisprudence on effective participation and other developments in relation to vulnerable defendants.

10. Ultimately the Pritchard test sets too high a threshold for finding an accused unfit to plead. And is inconsistent with the demands of the modern trial process It has the practical effect of limiting the number of people who are found unfit to plead and therefore could mean that many accused are not receiving a fair trial. It also leads to the danger of convicting those who might be innocent because they may not be able to rebut the allegations against them. And this has the potential to breach the defendant’s rights!

11. Criminal Procedures (Insanity and Unfitness ti Plead) Act 1991 section 4A hearing The trial shall not proceed or further proceed but it shall be determined by a jury … whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence. If the jury are so satisfied, then they make a finding that the accused did the act or made the omission. If they are not so satisfied, then they return a verdict of acquittal.

12. The problems with the section 4A hearing Flow from a tension between the need to allow the accused a fair hearing as to the facts of the alleged offence and the need to protect the public from an accused who may be dangerous. The present legislation aims to provide for a fair hearing by giving the accused the opportunity to be acquitted if the prosecution cannot prove that he or she did the act. It aims to protect the public by ensuring that if there is evidence that the accused did the act, then a finding can be made to that effect and he or she will be subject to the disposal of the court.

13. The present law fails to catch some defendants who lack the capacity to participate meaningfully in the trial process, which in itself could be regarded as a breach of article 6 of the European Convention on Human Rights. The jurisprudence of the European Court of Human Rights makes it clear that article 6 includes a general right of “effective participation” (see Stanford v United Kingdom App No 16757/90).

14. We can’t have the mentally challenged interfering with the sanctity of the Court Process!

15. No You.ve got it wrong, actually I’m changing her

16. Is it necessarily in the best interests of the offender with an ID to be “caught” or is “Its a fair cop I done it Gov” better for them.

17. Table 1 – Prevalence of mental disorder in prisoners and the general population In addition, it is estimated that 20% to 30% have learning difficulties or learning disabilities that interfere with their ability to cope within the criminal justice system: see The Bradley Report (April 2009) at page 98

18. APPENDIX C DATA ON FINDINGS OF UNFITNESS TO PLEAD (Mackay)

19. Who are we going to catch? A New Zealand perspective. The provision of potentially rehabilitative options for such offenders has resulted in a considerable number of young people who would have previously received diversion, or community based or custodial sentences becoming subject to orders. Many of these individuals have a partially environmentally caused limitation of cognitive functioning, and have not previously been receiving disability services. Their ambivalent relationships with authority figures, lack of life skills, problems with affect regulation and impulse control meant a different model of care than most intellectual disability care providers had been using was required.

20. Many such currently in English Prisons are not known to disability services And are not happy campers! And they don’t play nicely together. Being confined and restricted annoys them They are used to using active coping strategies and are not interested in change. And now would be subject to the Mental Health Act.

21. Standard for release Prison When the sentence ends Mental Health Act. When they are no longer too risky. As long as there is “appropriate medical treatment” available

22. The risks associated with managing the risks associated with managing the risks associated with managing the risk of Mental Disorders In the era of risk management.

23. Professional actions are assessed socially as well as objectively. Suicide and homicide are terrifying. Media portrayals tend to be polarized between then being inexplicable or inevitable. They could happen in any family. They must not and should not. They will not if mental health professionals do their jobs right.

24. APPENDIX AMENTAL HEALTH LEGISATION Article 5 of the European Convention on Human Rights The detention of a person because of his or her mental disorder must be compatible with article 5 of the European Convention on Human Rights. Article 5(1) provides that no one shall be deprived of his or her liberty, unless one of the limited exceptions applies which includes the lawful detention of “persons of unsound mind”.

25. So why has this person who has a long criminal record now got an unsound mind?