Unfitness to Plead in England and Wales

2018 ◽  
Author(s):  
Rudi Fortson
Keyword(s):  
Mental Illness ◽  
Learning Disability ◽  
Developmental Disorder ◽  
Criminal Offence ◽  
Legal Process ◽  
England And Wales ◽  
Criminal Jurisdiction ◽  
Communication Impairment ◽  
The Law ◽  
Law Commission

This chapter examines the legal and practical issues encountered by practitioners when dealing with unfitness to plead litigation. As the Law Commission for England and Wales has pointed out, defendants charged with a criminal offence may be unfit to plead or to stand trial for a variety of reasons, including difficulties resulting from mental illness, learning disability, developmental disorder, or communication impairment. Two issues are considered: (i) how might those defendants who are unfit be accurately identified; and (ii) what steps should be taken by legal practitioners and by the courts of criminal jurisdiction to cater for the interests of vulnerable defendants, victims, and society, and to maintain the integrity of the legal process as one that is fair and just? The chapter evaluates the reform proposals of the English Law Commission and assesses how the law could be improved for all those who are involved in dealing with the unfit to plead.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

scholarly journals Effective Participation of Mentally Vulnerable Defendants in the Magistrates’ Courts in England and Wales—The ‘Front Line’ from a Legal Perspective

2020 ◽  
pp. 002201832095711
Author(s):  
Helen Howard
Keyword(s):  
Legal Reform ◽  
Legal Aid ◽  
Front Line ◽  
England And Wales ◽  
Legal Professionals ◽  
Legal Reforms ◽  
Legal Perspective ◽  
The Law ◽  
Law Commission

Mentally vulnerable defendants who struggle to effectively participate in their trial in the magistrates’ courts are not receiving the same protection as those who stand trial in the Crown Court. The Law Commission for England and Wales recognised this lacuna and suggested that the law relating to effective participation should be equally applicable in the magistrates’ courts. On closer examination of the law, the legal aid system and perspectives of legal professionals on the ‘front line’, it is clear that improvements in policy are of greater importance than legal reform and are more likely to meet the needs of these vulnerable individuals. The aim of this paper will be to demonstrate that reform of the law will be insufficient to adequately protect mentally vulnerable defendants in the magistrates’ courts and that changes in policy are needed in place of, or alongside, legal reforms.

Autonomy and prenuptial agreements in Ireland: a relational analysis

Legal Studies ◽  
2018 ◽  
Vol 38 (1) ◽  
pp. 164-186
Author(s):  
Lucy-Ann Buckley
Keyword(s):  
Gender Equity ◽  
Relational Theory ◽  
England And Wales ◽  
Party Autonomy ◽  
Fairness Concerns ◽  
The Law ◽  
Relational Concerns ◽  
And Gender ◽  
Family Autonomy ◽  
Law Commission

AbstractUnlike England and Wales, Ireland has not yet moved from the traditional common law rejection of prenuptial agreements. Nevertheless, similar policy concerns continue to be debated in both jurisdictions, particularly regarding the balance between autonomy and fairness concerns, and gender equity. In 2007, an Irish ministerial Study Group recommended limited recognition of prenuptial agreements, foreshadowing similar proposals by the Law Commission for England and Wales in 2014. However, the Irish recommendations were never implemented, despite sustained lobbying. This paper draws on relational theory to scrutinise the Study Group's proposals, identifying its core assumptions and their implications. The paper contends that Irish courts dealing with spousal agreements have tacitly accepted liberal conceptualisations of autonomy, which may lead to injustice. Furthermore, the Study Group's recommendations have been overtaken by events. Recent decisions on spousal agreements emphasise respect for party autonomy, without interrogating what this means. This could be problematic if applied to prenuptial agreements. Accordingly, the paper suggests modifications to the Study Group's proposals, to address relational concerns. In this regard, the paper speaks to the broader debate on family autonomy, and draws on comparative perspectives, including the recommendations of the Law Commission for England and Wales, and the Canadian experience.

Time for an English Commercial Code?

1997 ◽  
Vol 56 (3) ◽  
pp. 516-536
Author(s):  
Dame Mary Arden
Keyword(s):  
Common Law ◽  
Law Reform ◽  
England And Wales ◽  
Commercial Code ◽  
Unique Experience ◽  
The Common ◽  
Systematic Development ◽  
The Law ◽  
Lord Chancellor ◽  
Law Commission

Parliament has imposed on the Law Commission the duty to review the law of England and Wales “with a view to its systematic development and reform, including in particular the codification of [the] law … and generally the simplification and modernisation of the law”. There are a number of points which flow from this. First, as a body which reviews great swathes of the common law to see if they require to be modernised or simplified, the Law Commission has a unique standpoint from which to view the strengths and weaknesses of the common law method. Second, it has unique experience of law reform and the Parliamentary process. Third, in discharge of its functions, it has an interest in seeing that, if codification is appropriate, a recommendation to that effect is made to the Lord Chancellor. It need not be the Law Commission which carries out the recommendation, and indeed the Law Commission could not carry out a project purely of its own initiative.

Bad Character and the Law Commission

2002 ◽  
Vol 6 (3) ◽  
pp. 141-162
Author(s):  
Peter Mirfield
Keyword(s):  
Criminal Trials ◽  
England And Wales ◽  
The Law ◽  
Law Commission

Report No. 273 of the Law Commission for England and Wales proposes a new scheme for the law relating to evidence of bad character in criminal trials, and no less in the case of witnesses other than the accused than in the case of the accused himself. This article broadly welcomes the governing general principles of the proposed scheme, whilst challenging the soundness of some of the terminology recommended by the Commission, as well as its conclusions on some important, albeit more specific issues.

Property law v family law: resolving the problems of family property

Legal Studies ◽  
2003 ◽  
Vol 23 (4) ◽  
pp. 624-648 ◽  
Author(s):  
Joanna Miles
Keyword(s):  
Family Law ◽  
Property Law ◽  
Legal Regime ◽  
England And Wales ◽  
The Law ◽  
Law Commission ◽  
Made In

This paper compares ‘property law’ and ‘family law’ approaches to the problems associated with people who share homes, and examines some of the reform suggestions recently made in this field. The differences between property and family approaches are highlighted by recent endeavours of the Law Commission of England and Wales to devise a specifically ‘property law’ response to home-sharing, and those differences lie at the root of many of the difficulties that the Law Commission encountered in developing its abandoned scheme. It is worthwhile identifying and reflecting on those differences in order to ascertain the sort of home-sharers' problems with which each legal regime can cope, and the sort of solution that each is able to offer.

Reforming fitness to plead and stand trial legislation in England and Wales

2019 ◽  
Vol 26 (1) ◽  
pp. 8-15
Author(s):  
Nuwan Galappathie ◽  
Angela Shaw
Keyword(s):  
Case Law ◽  
Mental Capacity ◽  
Learning Objectives ◽  
List Type ◽  
Consultation Process ◽  
England And Wales ◽  
Extensive Consultation ◽  
The Law ◽  
Practical Implications ◽  
Law Commission

SUMMARYThe legal decision on whether a defendant can fairly take part in a criminal trial in England and Wales is currently based on the leading case of R v Pritchard (1836), which despite subsequent case law updates does not embrace the concept of mental capacity or effectively identify defendants who are unable to meaningfully participate. Further to an extensive consultation process, the Law Commission published recommendations for reform in 2016, with a proposed new test of capacity to participate effectively in a trial and detailed suggestions for statutory reform of court procedures for managing defendants found unable to participate. Here we review the proposals and consider practical implications and suggestions regarding their implementation.LEARNING OBJECTIVESAfter reading this article you will be able to: •appreciate the current problems with the law on fitness to plead in England and Wales•understand the proposed test of capacity to participate effectively in a trial•understand the proposed changes to the procedures available when a defendant is found unable to participate.

scholarly journals Is the current law on Conspiracy to commit Murder effective and fair?

2019 ◽  
Vol 1 (1) ◽  
pp. 85-98
Author(s):  
Chloe Collins ◽  
Chelsie Rapley ◽  
Brian Chia ◽  
Luke Smith ◽  
Ben Middlemass
Keyword(s):  
Thirteenth Century ◽  
Case Law ◽  
Criminal Offence ◽  
Legal Research ◽  
The Third ◽  
Current State ◽  
The Law ◽  
Definition Of ◽  
False Accusations ◽  
Law Commission

“Conspirators be they that…bind themselves by Oath…or other Alliance, that every of them shall aid and support the Enterprise of each other falsely and maliciously to indite.”Established in the Third Ordinance of Conspirators in 1304; the first definition of conspiracy was to prevent and punish those who would plan to use children to present their false accusations in court on their behalf (as children could not be criminally liable). The aim of the law on conspiracy, although widening the scope, has been clear from the thirteenth century: to prevent and punish the planning of a criminal offence. However, since expanding, the law on conspiracy has been criticised especially in regard to sentencing as “unduly harsh.” This is the result of numerous problems with the current law on conspiracy to murder, which is in urgent need of reform. “On the 10th of October 2007, the law commission proposed many recommendations on reforms of statutory conspiracy” (Law Commission 2018). The focus of this legal research is to explore the current state of law regarding conspiracy to murder and the legislation, case law, scholarly and media articles discussed in this report will evaluate the effectiveness and fairness of the law on conspiracy to murder. Thus, the question to sum up our legal research “Is the current law on conspiracy to commit murder effective and fair?"

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