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Law Commission: Fitness-to-plead rules ‘out of date’

Law Commission: Fitness-to-plead rules ‘out of date’

Sebastian Whale | Law Commission

2 min read Partner content

New tests should be implemented to determine whether a defendant facing criminal charges is mentally fit to stand trial, according to the Law Commission.


The independent body said existing rules were “out of date, misunderstood and inconsistently applied”.

At present two doctors, including a psychiatrist, advise judges on a defendant’s mental capacity before a trial commences.

But the Law Commission is asking for psychologists to be included in this process along with greater testing.

The existing system prioritises “intellectual ability”, the Commission said, as it called for a “shift in focus”.

According to the BBC, the body is concerned that too many defendants face criminal trials despite lacking the faculties to take part due to poor mental health.  

The Ministry of Justice said it would consider the group’s recommendations.

The commission also called for a strengthening of rules pertaining to so-called trial of the facts, when a defendant is ruled unfit to stand in a normal trial.

In such a trial, a jury can decide whether the defendant carried out the acts of which the defendant has been accused, but cannot pass a verdict of guilty.

According to the group, the prosecution in such cases should also be required to prove the defendant intended to break the law.

It also called for judges to be given power to not hold a trial of the facts, should it be in the interests of justice.

"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,” said Professor David Ormerod QC, law commissioner for criminal law and procedure.

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