A role for intermediaries in helping unfit accused to participate?

A defendant who is unfit to plead will face a ‘trial of the facts’, which seeks to determine whether they did the act or made the omission charged against them. Mens rea is not currently considered at this hearing and the proceedings are not regarded as criminal (but see Law Com No.364). However, the outcome for a defendant may be significant as, if they are found to have done the relevant act or made the omission, the judge may be able to make a hospital order (potentially with a restriction order), among other disposals. An unfit defendant will have an advocate appointed for them by the court. This advocate does not represent the defendant, who will not usually give evidence and may not even be in court during the proceedings. This approach to unfitness treats mental capacity as a binary concept and fails to recognise that an unfit defendant may be able to make some decisions about their case, perhaps with appropriate support. The current law deprives an unfit defendant of his criminal due process rights, which is problematic and arguably unsustainable in light of the United Nations Convention on the Rights of Persons with Disabilities. We were invited by Intermediaries for Justice to host a “conversation” at their annual conference. Our aim was to ascertain whether there might be a role for intermediaries in assisting an unfit defendant to make certain decisions and/or to give evidence. Intermediaries in attendance agreed that there could be a valid role for intermediaries at the trial of the facts. They felt that depriving an unfit defendant of the right to this assistance is difficult to justify, particularly given the Law Commission’s reform proposals in this area.