Unfitness to plead and the court-appointed advocate

Following a finding that a defendant is unfit to plead, s.4A(2) Criminal Procedure (Insanity) Act 1964 requires the court to appoint counsel to put the case for the defence. In R v Norman, the Court of Appeal emphasised that the judge should appoint “the right person for this difficult task”, such as “counsel experienced in mental health issues”, as the responsibility placed on the person appointed is “quite different” to that placed on an advocate who can take instructions from a client. The Law Commission has stated that the procedure for appointing counsel “works well in terms of assisting an unfit accused”, but there is a paucity of evidence to support this contention. This paper will explore some of the procedural difficulties arising out of this process and the ethical and practical dilemmas that may be faced by the advocate, including: • Best interests and the accused’s “identified will and preferences” • The notion of reliable instructions • Whether and when to override the accused’s personal autonomy It will be suggested that guidance for advocates in the criminal courts would be helpful given the increasing number of findings of unfitness to plead.