Unfitness to Plead: Guidance for the Court-Appointed Advocate

Research output: Contribution to conferencePaper

Abstract

In England and Wales, once a defendant has been found unfit to plead, the court must appoint an advocate to put the case for the defence at the ensuing ‘trial of the facts’ (s.4A(2) Criminal Procedure (Insanity) Act 1964). The judge must appoint “the right person for this difficult task”, as the responsibility placed on the advocate is said to be “quite different” to that involved in representing a fit accused (R v Norman [2008] EWCA Crim 1810). The advocate is not bound to follow the unfit accused’s instructions but must act in the accused’s best interests. An unfit accused will not usually testify in their own defence, and may or may not be present in court during the proceedings. This paper considers the lack of guidance as to the scope and ambit of the role of the court-appointed advocate in unfitness to plead cases. Some of the procedural and practical dilemmas that arise for such advocates will be discussed, and the paper will explore the ways in which their legal and ethical duties are shaped by the criminal justice system’s binary approach to capacity issues. The Law Commission’s proposals for the court-appointed advocate system will also be considered.
Original languageEnglish
Publication statusPublished - 13 Jul 2017
EventXXXVth International Congress on Law and Mental Health - Prague
Duration: 13 Jul 2017 → …

Conference

ConferenceXXXVth International Congress on Law and Mental Health
Period13/07/17 → …

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