Michael McDowell (Dublin South East, Progressive Democrats)

I regret that I do not accept the amendment. It would introduce apresumption in an area where it is not necessary or desirable. The court should have an open mind on the issue of whether somebody is fit to be tried and should not make a presumption one way or another. De facto, there is a day to daypresumption that, unless the issue is raised, no inquiry is held into it. The amendment would create a hurdle for the court or the accused to surmount if it wanted to establish that the accused was unfit to be tried. There should be a level playing field on which there are no presumptions one way or the other and the court should inquire into the issue when it is raised on an entirely neutral basis, objectively, and without an inherent presumption regarding the way it approaches the issue.

The other reason it is unnecessary is that, as a matter of common sense, a court proceeds on the basis that everybody before it is fit to participate unless it receives a signal in the other direction. De facto, the courts do not ask everybody whether they are fit to plead and they do not normally inquire of the solicitor for an accused whether his or her client is in a position to plead. The issue only arises in most cases where there is an issue in somebody's mind. It is unnecessary to introduce a presumption in that context and it could, in the minds of some judges, raise a bar which the accused's representative would be bound to hurdle before getting to the correct decision. It is probably better to leave things without presumption.