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Legal issues confronting the Duty Solicitor

Identifying the legal issues

The duty solicitor needs to recognise the possibility that a defendant who has a mental illness or impairment:

  • may have been mentally incompetent to commit the offence at the time of the offence; or
  • may be mentally unfit to plead or to instruct at the time of interview; or
  • both of the above; or
  • may be neither of the above, but still in need of a detailed psychiatric assessment in order to put before the Court any extenuating circumstances of diminished culpability relevant to sentence on a plea of guilty.

Factors likely to alert the duty solicitor to the possibility of any of these situations include:

  • any bizarre component in the allegations;
  • a defendant’s own presentation at interview and apparent inability to give coherent, reality-based instructions;
  • a defendant’s own reference to a history of psychiatric treatment;
  • mental health support workers accompanying the defendant to the Court.
Where the duty solciitor is in any doubt at all about the defendant’s fitness to plead, or his or her mental competence to commit the offence, they should not advise or assist the defendant to enter a plea of guilty, however minor the offence.
Legal issues confronting the Duty Solicitor  :  Last Revised: Mon May 21st 2012