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Law Commission calls for a modern approach to unfitness to plead

Law Commission | Law Commission

3 min read Partner content

A new test is needed to establish who is unfit to plead according to the Law Commission.

A new test is needed to establish who is unfit to plead according to the Law Commission.

The existing rules for deciding whether a defendant is unfit to participate in a criminal trial – and what the courts should do if they are not – are out of date, misunderstood and inconsistently applied.

In a report published today, the Law Commission sets out recommendations to modernise the test for unfitness to plead, bringing it into line with today’s psychiatric and psychological thinking. The new test would look at the defendant’s decision-making capacity and ask whether the defendant is able to participate effectively in their trial. This would represent a shift in focus from the existing test, which prioritises intellectual ability.

The Commission’s approach to reform is founded on the principle that justice is best served for defendants and victims, and the public is best protected, if a full trial can fairly take place. It is therefore recommending a series of measures to help defendants who have participation difficulties to engage effectively in their trial. Defendants would have a statutory entitlement to assistance from an intermediary where they need that help in order to have a fair trial. Judges and other legal practitioners would receive training to help them identify which defendants need support and what kind of support would be most effective.

The Commission is also recommending fairer procedures for considering a criminal allegation where a defendant is unable to participate in a trial. 

Under the existing rules, where a defendant is not fit to plead, there must be a hearing of the facts, even if the court already knows that the disposals available to it would not be appropriate for the defendant. The Commission is making three main recommendations in this area:

  • The judge should be able to decide not to have a hearing, if more suitable provision can be made for the defendant outside the criminal justice system.

  • An alternative finding hearing should replace the current trial of the facts. The new hearing would more closely mirror a full trial, giving defendants better opportunity to challenge the prosecution, and allowing victims to give a full account of their experience.

  • Where the allegations are proved, the courts should be able to impose a more effective order for supervision, which could include constructive support for the vulnerable individual and more restrictive measures to ensure public protection.

The Commission is also recommending that the reformed unfitness to plead procedure be extended to the magistrates’ and youth courts.

Professor David Ormerod QC, Law Commissioner for criminal law and procedure, said:

“It is in the interests of justice that defendants who can play a meaningful and effective part in their trial should have the opportunity for a full trial.

“The current rules for defining ‘unfitness’ were formulated in 1836, and how the courts deal with vulnerable defendants who are unfit fails to achieve just outcomes.

“Our reforms would modernise the law to bring unfitness to plead into line with current psychiatric thinking, making it more effective, accessible and fair for vulnerable defendants and victims, and providing greater protection for the public.

“It is extraordinary that the unfitness to plead procedure is not currently available in the magistrates’ and youth courts, where some of the most vulnerable defendants in the criminal justice system can be found. Extending our reforms throughout the courts system would ensure that young people are no longer treated less fairly than adults.”

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